Taking Liberties?

TERENCE SMITH: The Bush administration has spearheaded a series of executive,…

MAN: The yeas and nays are requested.

TERENCE SMITH: …legislative,…

JOHN ASHCROFT, Attorney General: I announced a wartime reorganization….

TERENCE SMITH: … and legal actions in recent weeks broadening the government's ability to detain, investigate, and prosecute those suspected of terrorism. In his capacity as commander-in-chief, President Bush issued an order on November 13 authorizing the use of secret military tribunals to try non-American citizens accused of terrorism. Attorney General John Ashcroft explained why he thought this alternate system of justice is necessary.

JOHN ASHCROFT: The United States is in the state of war, and I think it's important to give the President of the United States the maximum flexibility consistent with his constitutional authority.

TERENCE SMITH: In response to the September 11 attacks, Congress passed the U.S.A. P.A.T.R.I.O.T. Act, which, among other things, provides for: detainment of non-citizens for up to seven days before being charged with a crime; expanded wiretapping, which extends to cell phones and tracking people with multiple numbers; and unprecedented information sharing between the CIA and FBI.

In addition, the Justice Department has authorized the monitoring of conversations between attorneys and clients held in federal prison on suspicion of terrorist activity. The government has also announced plans to interview some 5,000 young Middle Eastern men who entered the country on temporary visas after January 2000. Civil liberties advocates such as Vermont Senator Patrick Leahy are questioning the extraordinary tactics.

SEN. PATRICK LEAHY, (D-Vt.): I'll tell you why I'm concerned. All of a sudden, we pick up the paper every morning, here's "we're going to wiretap defense counsel." "We're going to do these ad hoc outside the justice system methods." It is bothering a great number of people, Republicans and Democrats. I think the Attorney General owes the country, certainly owes the Congress, an explanation.

TERENCE SMITH: One of those Republicans is the staunchly conservative congressman, Bob Barr of Georgia.

REP. BOB BARR, (R-Ga.): It's massive suspension of civil liberties in a way that has never been done before in our country. It is very, very serious. If we simply now say that, well, we don't want to declare war because we don't want to quite go that far, and yet we are facing extraordinary circumstances and we have to suspend civil liberties, we are trying to have our cake and eat it too.

TERENCE SMITH: Today, Ashcroft responded directly to these and other critics.

JOHN ASHCROFT: While I am aware of various charges being made by organizations and individuals about the actions of the Justice Department, I have yet to be informed of a single lawsuit filed against the government charging a violation of someone's civil rights as a result of this investigation. I would hope that those who make allegations about something as serious as a violation of an individual's civil rights would not do so lightly or without specificity or without facts.

TERENCE SMITH: Internationally, it is the plan to stage secret military tribunals that has encountered the most resistance. Spanish officials told the United States last week that they would not extradite eight men suspected of involvement in the September 11 attacks without assurances that they would be tried in civilian courts. But yesterday President Bush remained defiant.

PRESIDENT GEORGE W. BUSH: I made the right decision. A President must have the option of using a military tribunal in times of war. I look forward to explaining it to my friend, the President of Spain, why I made that decision.

TERENCE SMITH: For more perspective on the administration's decisions and civil liberty, we turn to two columnists: Anthony Lewis of The New York Times, and Joseph Perkins of the United Media Syndicate and The San Diego Union-Tribune. Welcome to you both. Tony Lewis, there's an old phrase that at extraordinary times demand extraordinary measures. Is this one of those times? Are these secret military tribunals justified and warranted?

ANTHONY LEWIS: I think we do have to have some strong measures now, Terry, but the idea of military tribunals as outlined by the president and Attorney General Ashcroft is frankly, I'll put it right to you straight, the most dangerous assault on our constitutional system in my lifetime. I can tell you why I think that -- because people think this just applies maybe to Osama bin Laden and a few hundred or a few thousand of his men that we might catch in Afghanistan. To the contrary, it applies to 20 million foreign citizens who are in the United States, most of them people with green cards looking forward to becoming American citizens, immigrants like all of us -- or descendants of immigrants -- trying to make their way and become good Americans, and they can suddenly be taken before a military tribunal on the say-so of an executive official with no input by Congress, no authority. It is a coup by the President of the United States of an extremely dangerous character.

TERENCE SMITH: Joseph Perkins, does that bother you, that image that Tony Lewis just sketched out?

JOSEPH PERKINS: Well, it seems to me to be hyperbole, grossly so. The reason is, is that I don't think all 20 million non-citizens of this country who are foreign nationals have to fear being rounded up by our government and put on trial for war crimes. I mean this is targeted directly to those who are responsible for the terror attacks on the World Trade Center and the Pentagon, those who aided and abetted them. And I think these military tribunals will mostly be applied to those taken into custody abroad. There is historical precedent for it. George Washington used military tribunals, Abraham Lincoln and most recently Franklin Roosevelt and it was upheld by the nation's highest court – the U.S. Supreme Court -- on a unanimous decision.

TERENCE SMITH: Tony Lewis, explain to us what would be different in a military tribunal and why you think the difference is important from a civilian court.

ANTHONY LEWIS: Let me just say a word about what Mr. Perkins just said. It would be applied. You can't tell. We have a system of law in this country. It's not what somebody might do. And Mr. Perkins says it's only for al-Qaida -- not at all. It is for anybody who has aided or abetted any act of terrorism or preparation or harbored anyone. A person out in Minnesota could have had a man staying in his house who later is charged with something to do with an act of terrorism. It doesn't even have to be foreign terrorism.

And, you know, it just really troubles me greatly that we have something written so broadly. If we only wanted to get the al-Qaida people, we could say that. The president could have said that. But this is a very, very dangerous thing. Let me tell you, Terry, read you one thing to tell you why I think it's so strikingly different and that is the opening words of the 6th Amendment to the United States Constitution. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury." There's no exceptions in there. That's the law.

JOSEPH PERKINS: Again, the U.S. Supreme Court spoke to this issue back during the Roosevelt administration and unanimously decided that during a time of war -- and I think we are in a time of war right now -- that the president has the power to order the creation of a military commission to try those who are guilty of war crimes or suspected of war crimes. And I think there's also a presumption you have that anyone who appears before such a tribunal will automatically be found guilty. And I think the lesson of history is that that is not the case.

Yes, these trials are conducted under different circumstances than civilian trials. But justice prevails in these military tribunals much as it does in the civilian system. What it does though under a military tribunal we can both see the justice is done while also maintaining national security. And if you remember those trials in New York following the first terrorist bombing of the World Trade Center, you can see how national security can be imperiled by putting terrorists on trial in civilian court.

TERENCE SMITH: Tony Lewis, the president took this step without a formal declaration of war.

ANTHONY LEWIS: Without a declaration of war, with no authority from Congress and unlike the Roosevelt example entirely. The one Roosevelt example was five Nazi spies who were landed by submarine or six, landed by submarine in Long Island, six people not 20 million and actually in the middle of a declared war and people who landed here to carry out a war. That's a little different from 20 million aliens in our midst. And, by the way, there's no reason why this same logic couldn't apply to citizens. Mr. Bush can on this logic could issue an order tomorrow saying all Americans, all citizens can also be subject to military tribunals.

JOSEPH PERKINS: But the president didn't issue that order. I might also say that you are suggesting that all 20 million American immigrants who are foreign nationals are going to be brought before military tribunals -- no, only those who are suspected of having complicity with terrorists.

ANTHONY LEWIS: I didn't say they were going to be brought. I say they are subject to being brought. I think if you were in that situation, Mr. Perkins, you might find yourself a little worried knowing that you're an alien in this country and if you said something that was a little different, you might be suspected by your neighbor or your landlord, and the next thing you'd know you'd be before a military tribunal. Those are the sort of tribunals we criticize when Egypt and other countries use them. We list them as violating human rights because they use military tribunals.

JOSEPH PERKINS: Well, I disagree. We have a gentleman right here in this town who actually provided lodging to at least one of the men responsible for the hijacking and terrorist attack on the World Trade Center. Even though he provided this lodging, he was not prosecuted because he didn't know.

The point is, is that I have faith in our justice system -- both our civil justice system like you do but also our military justice system that ultimately justice will prevail, that we will not cavalierly and capriciously prosecute and find guilty those who are not guilty. I might also mention, if I can just add one more point. This is the same system of military justice that our men and women in uniform, including those who are in Afghanistan right now fighting for our civil liberties, this is the same justice that they are subject to. And if it's good enough for our men and women in uniform it seems to me that it should be more than good enough for those suspected of terror acts.

ANTHONY LEWIS: Mr. Perkins, you'd better read that order again because one of the striking things about it is that it denies the rights that are always given to people tried in our system of military justice. They can't choose their own lawyer. They cannot hear the evidence against them in many cases. It's -- one of the striking things is that it's much worse than a military-- system of military justice that I agree with you is perfectly fine.

TERENCE SMITH: Joseph Perkins, let me ask you this: Should the President in your view have sought specific congressional approval of this? I note that tonight, just late this afternoon, Democrats in Congress said they'd hold hearings next week on the legitimacy of the military tribunals. Would it have been either good politics or sensible from another point of view for the president to do that?

JOSEPH PERKINS: Well, let me say this. It seems to me to be unnecessary for the president to go before Congress to exercise powers that the U.S. Supreme Court has previously stated that the president has. Having said that, I do think there is some virtue in the president or his representative appearing before Congress to make the case, to restate the case, for these military tribunals. And I think that, on balance, the argument bends to having these tribunals. Again, I don't think that the president wants to do this because he wants to deprive 20 million foreign-born Americans of civil liberties. I think it's because he recognizes what the deleterious consequences are by bringing people before civilian courts who are war criminals.

ANTHONY LEWIS: War criminals?

JOSEPH PERKINS: That's right. In the case of the first World Trade Center bombing, evidence came to the fore from an expert that said that the World Trade Center could not be destroyed by simply a bomb, that something bigger like, say, for instance a fuel-laden jet would be needed to collapse the towers.

In the trials of those suspected terrorists who bombed our embassies in Africa, it came out in this testimony that we had been eavesdropping on the conversations of Osama bin Laden by listening to his satellite telephone calls. Well he no longer uses that anymore. This is the danger of bringing suspected terrorists before civilian court, and that is that it will provide, I think, germane information to those who would prey upon us.

TERENCE SMITH: Tony Lewis.

ANTHONY LEWIS: My comment on that is that we have from the beginning rested our freedom as Madison and Hamilton and the rest of them at the beginning of this country sought on a three-part government: The courts, Congress, the president. This order excludes Congress and specifically, and really amazingly, denies anybody caught in this trap of military tribunals the right to go to any court. It says no court right up to the Supreme Court of the United States may hear any appeal from these people.

Now, Mr. Perkins, I honestly wish you'd think about that. Do you want this country to stand for the proposition that you can't have a court review your conviction, that the president on his own motion without any legislation by Congress can declare that people may be executed after a secret trial that we will never know the record of maybe in your lifetime and mine? I mean, if that were done in another country, I think you and the rest of us would think it was shocking.

TERENCE SMITH: Mr. Perkins can you answer in just a few seconds?

JOSEPH PERKINS: Yes, I think that those who are brought before a military tribunal will receive a vigorous defense from well-trained military lawyers and all will not be convicted and some will be acquitted.

TERENCE SMITH: Gentlemen, we have to leave it there. Thank you both very much.