The Bush administration is developing a parallel legal system in which
terrorism suspects -- U.S. citizens and noncitizens alike -- may be
investigated, jailed, interrogated, tried and punished without legal
protections guaranteed by the ordinary system, lawyers inside and outside
the government say.
The elements of this new system are already familiar from President
Bush's orders and his aides' policy statements and legal briefs:
indefinite military detention for those designated "enemy combatants,"
liberal use of "material witness" warrants, counterintelligence-style
wiretaps and searches led by law enforcement officials and, for
noncitizens, trial by military commissions or deportation after strictly
Only now, however, is it becoming clear how these elements could
For example, under authority it already has or is asserting in court
cases, the administration, with approval of the special Foreign
Intelligence Surveillance Court, could order a clandestine search of a
U.S. citizen's home and, based on the information gathered, secretly
declare the citizen an enemy combatant, to be held indefinitely at a U.S.
military base. Courts would have very limited authority to second-guess
the detention, to the extent that they were aware of it.
Administration officials, noting that they have chosen to prosecute
suspected Taliban member John Walker Lindh, "shoe bomber" Richard Reid and
alleged Sept. 11 conspirator Zacarias Moussaoui in ordinary federal
courts, say the parallel system is meant to be used selectively, as a
complement to conventional processes, not as a substitute. But, they say,
the parallel system is necessary because terrorism is a form of war as
well as a form of crime, and it must not only be punished after incidents
occur, but also prevented and disrupted through the gathering of timely
"I wouldn't call it an alternative system," said an administration
official who has helped devise the legal response to the terrorist attacks
of Sept. 11, 2001. "But it is different than the criminal procedure system
we all know and love. It's a separate track for people we catch in the
At least one American has been shifted from the ordinary legal system
into the parallel one: alleged al Qaeda "dirty bomb" plotter Jose Padilla,
who is being held at a Navy brig, without the right to communicate with a
lawyer or anyone else. U.S. officials have told the courts that they can
detain and interrogate him until the executive branch declares an end to
the war against terrorism.
The final outlines of this parallel system will be known only after the
courts, including probably the Supreme Court, have settled a variety of
issues being litigated. But the prospect of such a system has triggered a
Civil libertarians accuse the Bush administration of an
executive-branch power grab that will erode the rights and freedoms that
terrorists are trying to destroy -- and that were enhanced only recently
in response to abuses during the civil rights era, Vietnam and
"They are trying to embed in law a vast expansion of executive
authority with no judicial oversight in the name of national security,"
said Kate Martin, director of the Center for National Security Studies, a
Washington-based nonprofit group that has challenged the administration
approach in court. "This is more tied to statutory legal authority than J.
Edgar Hoover's political spying, but that may make it more dangerous. You
could have the law serving as a vehicle for all kinds of abuses."
Administration officials say that they are acting under ample legal
authority derived from statutes, court decisions and wartime powers that
the president possesses as commander in chief under the Constitution.
"When you have a long period of time when you're not engaged in a war,
people tend to forget, or put in backs of their minds, the necessity for
certain types of government action used when we are in danger, when we are
facing eyeball to eyeball a serious threat," Solicitor General Theodore B.
Olson, who leads the administration's anti-terrorism legal team in the
federal courts, said in an interview.
Broadly speaking, the debate between the administration and its critics
is not so much about the methods the government seeks to employ as it is
about who should act as a check against potential abuses.Executive Decisions
Civil libertarians insist that the courts should searchingly review
Bush's actions, so that he is always held accountable to an independent
branch of government. Administration officials, however, imply that the
main check on the president's performance in wartime is political -- that
if the public perceives his approach to terrorism is excessive or
ineffective, it will vote him out of office.
"At the end of the day in our constitutional system, someone will have
to decide whether that [decision to designate someone an enemy combatant]
is a right or just decision," Olson said. "Who will finally decide that?
Will it be a judge, or will it be the president of the United States,
elected by the people, specifically to perform that function, with the
capacity to have the information at his disposal with the assistance of
those who work for him?"
Probably the most hotly disputed element of the administration's
approach is its contention that the president alone can designate
individuals, including U.S. citizens, as enemy combatants, who can be
detained with no access to lawyers or family members unless and until the
president determines, in effect, that hostilities between the United
States and that individual have ended.
Padilla was held as a material witness for a month after his May 8
arrest in Chicago before he was designated an enemy combatant. He is one
of two U.S. citizens being held as enemy combatants at the Navy brig in
Charleston, S.C. The other is Yaser Esam Hamdi, a Saudi Taliban fighter
who was captured by American troops in Afghanistan and sent to the U.S.
prison at Guantanamo Bay, Cuba, until it was discovered that he was born
Attorneys are challenging their detentions in federal court. While
civil libertarians concede that the executive branch has well-established
authority to name and confine members of enemy forces during wartime, they
maintain that it is unconstitutional to subject U.S. citizens to
indefinite confinement on little more than the president's declaration,
especially given the inherently open-ended nature of an unconventional war
"The notion that the executive branch can decide by itself that an
American citizen can be put in a military camp, incommunicado, is
frightening," said Morton H. Halperin, director of the Washington office
of the Open Society Institute. "They're entitled to hold him on the
grounds that he is in fact at war with the U.S., but there has to be an
opportunity for him to contest those facts."
However, the Bush administration, citing two World War II-era cases --
the Supreme Court's ruling upholding a military commission trial for a
captured American-citizen Nazi saboteur, and a later federal appeals court
decision upholding the imprisonment of an Italian American caught as a
member of Italian forces in Europe -- says there is ample precedent for
what it is doing.
Courts traditionally understand that they must defer to the executive's
greater expertise and capability when it comes to looking at such facts
and making such judgments in time of war, Bush officials said. At most,
courts have only the power to review legal claims brought on behalf of
detainees, such as whether there is indeed a state of conflict between the
United States and the detainee.
In a recent legal brief, Olson argued that the detention of people such
as Hamdi or Padilla as enemy combatants is "critical to gathering
intelligence in connection with the overall war effort."
Nor is there any requirement that the executive branch spell out its
criteria for determining who qualifies as an enemy combatant, Olson
"There won't be 10 rules that trigger this or 10 rules that end this,"
Olson said in the interview. "There will be judgments and instincts and
evaluations and implementations that have to be made by the executive that
are probably going to be different from day to day, depending on the
The federal courts have yet to deliver a definitive judgment on the
question. A federal district judge in Virginia, Robert G. Doumar, was
sharply critical of the administration, insisting that Hamdi be permitted
to consult an attorney. But he was partially overruled by the U.S. Court
of Appeals for the 4th Circuit, based in Richmond.
The 4th Circuit, however, said the administration's assertion that
courts should have absolutely no role in examining the facts leading to an
enemy combatant designation was "sweeping." A decision from that court is
pending as to how much of a role a court could claim, if any. The matter
could well have to be settled in the Supreme Court.Secret Surveillance
The administration scored a victory recently when the U.S. Foreign
Intelligence Surveillance Court of Review ruled 3 to 0 that the USA
Patriot Act, passed by Congress shortly after the Sept. 11 terrorist
attacks, gives the Justice Department authority to break down what had
come to be known as "the wall" separating criminal investigations from
investigations of foreign agents.
The ruling endorsed the administration's view that law enforcement
goals should be allowed to drive Justice Department requests for special
eavesdropping and search warrants that had been thought to be reserved for
counterintelligence operations. But the court went further, agreeing with
the administration that "the wall" itself had no real basis in pre-Patriot
Act law. Instead, the court ruled, "the wall" was a product of internal
Justice Department guidelines that were, in turn, based partly on
erroneous interpretations of the law by some courts.
There is no clear line between intelligence and crime in any case, the
court said, because any investigation of a spy ring could ultimately lead
to charging U.S. citizens with crimes such as espionage.
The decision overruled an earlier one by the lower-level Foreign
Intelligence Surveillance Court, in which seven judges sharply criticized
past Justice Department misstatements in applications for permission to do
Administration officials say that the ruling permits what is only
sensible -- greater sharing of information between federal prosecutors and
federal counterintelligence officials.
Thanks to enforcement of "the wall" by FBI lawyers, they note,
pre-Sept. 11 permission to search Moussaoui's computer was not sought, a
crucial missed opportunity to prevent the attacks.
In practical terms, the ruling means that the attorney general would
still have to convince the Foreign Intelligence Surveillance Court that he
has probable cause to believe that a given subject of a wiretap or search
is an agent of a foreign terrorist group, a standard that is not
dissimilar to the one required for warrants in ordinary criminal
Yet civil libertarians say that targets of such investigations who end
up being ordered out of the country or prosecuted would lose a crucial
right that they would have in the ordinary criminal justice system -- the
right to examine the government's evidence justifying the initial
"So the government starts off using secret surveillance information not
to gather information upon which to make policy, but to imprison or deport
an individual, and then it never gives the individual a fair chance to see
if the surveillance was lawful," Martin said.