As they tend to do in times of national crisis, on Sept. 11 Americans looked to the person the Constitution designates as commander in chief. And President Bush responded - with aggressive and often unilateral executive action.
Without seeking formal approval from either Congress or the courts, the Bush administration has taken steps to establish military trials for foreign terrorist suspects, designated two U.S. citizens as "enemy combatants" who may be held indefinitely without charge, and ordered secret deportation hearings for suspected terrorists. In these and other cases, the president and his aides say his office gives him the authority he needs to fight al-Qaida.
"The enemy has declared war on us," Bush said Nov. 29, "and we must not let foreign enemies use the forums of liberty to destroy liberty itself."
Yet, as the initial shock of Sept. 11 receded, criticism - and even condemnation - of Bush's approach by civil liberties groups, members of Congress, the courts and the media emerged. He stands accused of usurping powers not conferred upon him by the Constitution and of infringing upon individual freedoms.
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Perhaps the toughest rebuke came last week, when a Cincinnati-based federal appeals court said the administration's arguments for secret deportation hearings were "undemocratic" and "in complete opposition to the society envisioned by the Framers of our Constitution."
The result is that, a year after the bloodiest foreign attack on U.S. soil, the administration and the country are engaged not only in a seemingly open-ended struggle against terrorism but also in a searching debate over democratic values - a political and legal argument that seems headed for the Supreme Court. The basic question is as old as the Constitution itself: How can Americans defeat a grave external menace without undercutting the very democracy they are trying to save?
"Asking questions (of the executive) is not being un-American," says Sen. Patrick Leahy (D-Vt.), who has taken issue with some of the administration initiatives. "It's saying that no one person knows everything or has all the right answers."
"We shouldn't lose sight of the fact that the way 9-11 affects our civil liberties comes not from the government's response but from the danger caused by terrorists in the first place," counters William Barr, who served as attorney general in the first Bush administration and has advised the current one on terrorism-related legal issues.
It's all relative
The framers of the Constitution guaranteed basic rights and contemplated that government could suspend at least one of them, the writ of habeas corpus - in which a person in custody is ordered to be brought before a court - in an emergency. Constitutional scholars note that the founding fathers wanted checks and balances but also saw a strong presidency as a bulwark of national security.
Making the case for ratification of the Constitution in 1788, Alexander Hamilton wrote that "energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks." Hamilton listed the advantages of a strong executive: "Decision, activity, secrecy and dispatch."
In this sense, legal analysts say, Bush's aggressive claims of authority are within the constitutional tradition and akin to the actions of past wartime presidents.
Some of his actions, such as using force in Afghanistan or eavesdropping on suspected terrorists' cell phones and e-mail in the United States, have been authorized by Congress. Others, such as denying access to U.S. courts for detainees at Guantanamo Bay, Cuba, have been upheld by courts. Yet the Bush administration seems to prefer acting on its own.
This preference held sway with respect to military commissions, alleged enemy combatants and closed-door deportation hearings. It was seen in the detention of hundreds of mostly Arab and Muslim men under near-secret conditions and the decree that Justice Department officials may eavesdrop on some conversations between terrorist suspects and their attorneys.
Opposition to the Bush administration's approach may be spreading, but opinion polls show most Americans backing the president.
Attorney General John Ashcroft's proposal to enlist meter readers and truck drivers as anti-terrorism informants met with outrage from Democrats in Congress and from such Republicans as House Majority Leader Dick Armey of Texas.
In a June Gallup-CNN-USA Today poll, however, 11 percent of those surveyed thought the Bush administration had gone too far in restricting civil liberties, 50 percent said it has been about right and 25 percent said that it hasn't gone far enough.
Even many of Bush's critics acknowledge he has not tried to regiment American society as some wartime predecessors did. During the Civil War, Abraham Lincoln suspended habeas corpus without an act of Congress and detained thousands of suspected rebel sympathizers. During World War I, Woodrow Wilson prosecuted antiwar activists and banned antiwar publications from the mails. Franklin Roosevelt interned tens of thousands of Japanese Americans.
"By the standards of current law, some of the things Bush has done are aggressive, but they are not out of line - and they're pretty cautious by historical standards," says Cass Sunstein, a constitutional law professor at the University of Chicago.
Sunstein says that, to many people, the relevant comparison is not between what Bush has done and what Lincoln or FDR did; it is how Bush's actions measure up to modern concepts of constitutional rights, which are, by most measures, far more expansive than they were even as recently as World War II.
"So many of the efforts undertaken by the government are either not necessary or the trade-off is wrong," says Anthony Romero, executive director of the American Civil Liberties Union. "The public will have greater confidence in the workings of government if Congress and the courts engage. ... This is not the executive branch's war on terrorism. This is the American government's war on terrorism."
Romero argues that the most effective check on executive power may come from the news media and "civil society."
Following the intense debate over military commissions, the administration appeared to backpedal. As outlined by Bush on Nov. 13, the commissions included no clear presumption of innocence for defendants and might have allowed the death penalty on less than a unanimous vote. Yet the administration chose to prosecute one captured terrorist suspect, Zacarias Moussaoui, in a civilian court, and in January the Defense Department issued regulations that resolved most of the civil libertarians' objections.
The eclipse, for now, of the military commissions, says Romero, "is a sign of our success."
Still, sources close to Bush administration deliberations on the issue suggest that the commissions are likely to be used in the future. "The commissions are something you use at the end of the war," after all al-Qaida detainees have been fully interrogated, an administration official says.
Executive branch out on an executive limb
Bush is facing particularly stiff resistance to his assertion that the executive branch may designate certain U.S. citizens as "enemy combatants" and hold them indefinitely without charging them with a crime or permitting them access to an attorney.
Two such detainees are being held at a Navy brig in South Carolina. One is Yasser Esam Hamdi, who was born in the United States of Saudi parents and was captured in Afghanistan. The other is Jose Padilla, a Brooklyn-born Puerto Rican who converted to militant Islam after a career as a petty criminal and was arrested by the FBI in Chicago's O'Hare airport on suspicion that he was part of an al-Qaida plot to use a bomb in the United States.
The courts should have no role in reviewing these designations, administration lawyers have argued, because they are inherently military decisions, which the executive branch is uniquely qualified - and empowered by the Constitution - to make.
In terms of asserting executive authority, that claim "is possibly the most incautious thing Bush has done," says Sunstein, the constitutional law professor. During pending litigation over Hamdi's bid for a writ of habeas corpus, federal District Court Judge Robert Doumar of Virginia, a Reagan-appointee, has ordered that Hamdi should consult a lawyer and said the administration cannot hold him unless it lays out more of its evidence for the court.
The Richmond, Va.-based U.S. Court of Appeals for the 4th Circuit overruled Doumar's order granting Hamdi a lawyer, but that usually conservative court balked at the administration's demand that the courts have no role in such cases, calling the argument "a sweeping proposition."
Doumar's ruling that the government should reveal more evidence is being reviewed by the 4th Circuit, and the case seems headed to the Supreme Court, legal analysts say.
The Supreme Court has historically deferred to the executive branch in times of war.
"Whether or not government tries to preclude judicial review of its actions, at least with respect to people being held in the U.S., the courts are going to pass on the validity of detention," predicts Lloyd Cutler, who was White House Counsel in the Carter and Clinton administrations, "even though the courts may end up upholding what the executive and congressional branches have done."
Though the debate remains unresolved, its terms have crystallized in the past year.
Those who are skeptical of the
administration's approach tend to see the threat posed by al-Qaida as more criminal than military, a menace that, for all the death and destruction of Sept. 11, is not inherently different from previous terrorist groups and not on par with those posed by the Confederacy or Imperial Japan.
"Where they may make a mistake is talking about these terrorist events, terrible as they were, as if they were the equivalent of World War II," Leahy says.
Thus, the skeptics argue, it can be fought largely with the conventional tools of civilian law enforcement, wielded by an executive branch overseen and constrained by the courts and Congress - especially since the indefinite duration of the war could mean restrictions on liberty and, once in place, could be perpetuated forever.
Supporters of the administra-tion's approach tend to see al-Qaida as a uniquely dangerous conspiracy whose suicidal members are bent on exploiting the openness of American society to infiltrate and destroy it, perhaps using weapons of mass destruction.
In this view, it is foolhardy to fight back with conventional measures, and the indeterminate duration of the struggle is a reason to concentrate power in the executive branch now to avoid having to ask for it when it may be too late.
"We'd rather be safe than sorry," says an administration official. "The administration didn't want to be in the position of conceding power we may need five years from now, because we don't know what the war will be like five years from now."
Both sides can cite history and legal doctrine, but each also relies on instinct and ideology.
Richard A. Posner, a judge on the Chicago-based U.S. Court of Appeals for the 7th Circuit, says: "It's a gut-level thing - no one knows exactly what the danger is, and there is no real measure of what the cost is in personal liberty."