WASHINGTON, Nov. 17 - The recent expansion of executive power in the legal fight against terrorism reflects a powerful conviction in the Bush administration that it is fighting acts of war, not mere crimes, on American soil.
This is the principle behind the administration's proposals to establish military tribunals to try foreigners accused of terrorism; to track down and question thousands of immigrants who have entered the United States in recent years, mostly from Middle Eastern countries; and to monitor conversations between some people in federal custody and their lawyers.
The administration is convinced that the public is on its side and shares the view that, as one White House official put it, "it's a new reality." The old rules, the old legal and law enforcement cultures, have to change, officials argue, to prevent future attacks and to prosecute terrorists in ways befitting their acts.
"The mass murder of Americans by terrorists, or the planning thereof, is not just another item on the criminal docket," Vice President Dick Cheney told a cheering audience of conservative lawyers Thursday. "This is a war against terrorism. Where military justice is called for, military justice will be dispensed."
Civil liberties advocates argue that the administration's proposals are far too sweeping. And even some members of Congress who are deeply sympathetic to the administration's ends are beginning to rebel at its means. "I don't know when, in the last 20 years, I've heard so many members of both parties come up and say, what the heck is going on?" said Senator Patrick J. Leahy, the Vermont Democrat who is chairman of the Senate Judiciary Committee.
But administration officials are determined not to let their hands be tied by the traditions of normal legal procedure or the rules of criminal law. In fact, frustrations over the legal complications of pursuing accused terrorists in the courtroom formed the basis for President Bush's order allowing the use of military tribunals, officials and outside analysts say.
Among the advocates of this approach was William P. Barr, who served as attorney general during the previous Bush administration. He said he became convinced of the benefits of military tribunals when he was confronting the 1988 bombing of Pan American Flight 103 over Lockerbie, Scotland, in which 270 people died. But the two men accused, both Libyans, were ultimately tried under Scottish law and the outcome — only one of the men was convicted — was frustrating to many in law enforcement.
"I've talked to a number of prosecutors who personally feel that it's very, very hard to do these cases with our system, because of different evidentiary constraints and because of the degree of disclosure you have to make of sensitive information," Mr. Barr said in an interview. "What I don't understand about the civil libertarians is, if our boys did something wrong in this conflict, they'd be tried in a military court. An Al Qaeda terrorist shouldn't have any claim to different procedures."
Prevention has been another guiding principle for the administration, officials say. For example, Attorney General John Ashcroft, in an interview Friday, defended his order to monitor some conversations between selected inmates and their lawyers on those grounds. Noting that it would apply to only a tiny number of people, he said, "Let's be clear about what it is: designed to keep people from continuing to perpetrate crimes through their lawyers' sometimes unwitting cooperation, by using the lawyer as a conduit for information and instructions or a means of signaling to individuals outside."
Similarly, administration officials said the interviews ordered this week with about 5,000 recent immigrants, mostly from Middle Eastern countries, were intended to develop information that could be helpful in thwarting future attacks. "I think it's just a combination of wanting to cross every `t' and dot every `i' in the effort to prevent an attack, and everyone believes there is a lack of intelligence information and human asset information," said a senior official in a United States Attorney's office in the West. "This might not be the best way to change that, but if you interview 5,000 people and get 50 informants, that would be great. It would be 50 more than we have now."
White House officials ritually deny that public opinion plays any role in their decisions. But they clearly believe the public is so angry and so alarmed by the terrorist attacks that they will grant substantial leeway to the executive branch.
"The public wants to be tough on criminals generally, and feels more should be done to protect the rights of victims, and this would be more so with foreigners and even more so for foreigners suspected of terrorism," said Andrew Kohut, director of the Pew Research Center. Still, he said, "If we get to the point where there are real questions about fairness, the public has the ability to draw lines."
In Congress, the concern, particularly over the lack of consultation in these executive orders, is bipartisan. Mr. Ashcroft has been asked to appear at Senate Judiciary Committee hearings on these matters after the Thanksgiving recess.
Senator Arlen Specter, Republican of Pennsylvania, said, "Our government functions at its strongest when there's agreement between the legislative and executive branches, and this Congress has gone far far out of its way to back up this president." Yet, Mr. Specter said, he knew nothing about the military tribunal order until news accounts appeared.
And Representative Bob Barr, the conservative Georgia Republican on the House Judiciary Committee, said on Friday, "These changes are so vast and fundamental, the House must hold hearings in the very near future, before we adjourn for the year." Such changes, without Congressional scrutiny, "will likely set precedents that will come back to haunt us terribly," he said.
The Historical Precedents
Precedents were set long ago, making Mr. Bush only the latest of many presidents to restrict civil liberties in wartime. During almost every major conflict dating back to the Civil War, presidents including Abraham Lincoln, Woodrow Wilson and Franklin D. Roosevelt have placed national security above aspects of personal liberty or constitutional rights, almost always with the support of both the public and the courts.
There were no significant public objections, for example, when Roosevelt approved the detention of thousands of American citizens from Japanese families during World War II. When Lincoln subjected Confederate sympathizers in the North to military justice during the Civil War, he was widely cheered by Northern supporters.
"It is generally the case that in times of fear, people place security above all, and they are quite willing to cede to the government extraordinary authority," said David Cole, a law professor at Georgetown University who often represents foreigners detained by the government. "We love security more than we love liberty."
Lincoln encountered little resistance when he suspended the right of habeas corpus in 1861, depriving prisoners of the right to an explanation for their incarceration. He even won support from New York newspaper publishers that year when his aides banned the distribution of pro-Southern papers.
"Remarkably, other New York papers did not rally round the sheets that were being suppressed," wrote Chief Justice William H. Rehnquist in "All the Laws but One," his 1998 study of civil liberties in wartime. "Instead of crying out about an abridgement of First Amendment rights — as they would surely do today — their rivals simply gloated."
The incident that was uppermost on the minds of Bush administration officials in setting up tribunals took place in June 1942, when Nazi Germany dispatched eight saboteurs to this country to blow up war industries, four landing by submarine at Amagansett Beach, L.I., and four at Ponte Vedra Beach, Fla. After the men were caught, President Roosevelt ordered them tried by a military tribunal for war crimes, with no access to civilian courts and juries.
Lawyers for the men persuaded the United States Supreme Court to hear their case, noting that one of the Germans was the son of naturalized American citizens. But a unanimous court ruled that both citizens and noncitizens lose the protections of the American legal system when they become enemy agents in wartime. Six of the men were executed by military courts; two were given prison sentences after cooperating with authorities, and later paroled.
In World War I, thousands of Communists, anarchists and pacifists were jailed for their beliefs under the Espionage and Sedition acts championed by Woodrow Wilson. In the period's best-known case, Charles T. Schenck, a Socialist Party leader, was convicted of writing and distributing leaflets urging young men to resist the military draft. The case produced Justice Oliver Wendell Holmes's famous 1919 ruling that sometimes speech poses a "clear and present danger" of causing an evil that Congress has the right to prevent.
Constitutional scholars say that the Supreme Court's unanimous ruling against Mr. Schenck fit the pattern of judicial support for the restriction of civil liberties during wartime.
"Sometimes we try to delude ourselves into thinking that the courts will protect us from our worst inclinations," said Michael J. Klarman, a professor of law at the University of Virginia, who has written extensively on the history of civil liberties. But in fact, he said, "the justices are part of the same culture that is willing, in times of war, to trade civil liberties for security."
This tendency has been evident even as civil liberties expanded from the most fundamental issues of the 19th century to a broader conception of personal rights in the 20th. Perhaps the best-known, and most far- reaching, example of increasing restrictions on liberty was Roosevelt's internment of 120,000 Japanese-Americans during World War II. In 1944, two years after the internment program began, the Supreme Court ruled 6 to 3 that there was no reason to second-guess the military authorities.
"There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short," Justice Hugo Black wrote for the majority. "We cannot — by availing ourselves of the calm perspective of hindsight — now say that at that time these actions were unjustified."
The New Attitude in Europe
"We can live in a world with airy-fairy civil liberties and believe the best in everybody — and they then destroy us," a government official said last week. But the speaker was not an American. David Blunkett, the British home secretary, was succinctly reflecting the new attitude toward civil liberties that is also sweeping Europe.
Waves of arrests across Belgium, Britain, France, the Netherlands and Spain in the last two months have netted terrorist suspects and far more people, mostly Muslims, whose activities merely seemed suspicious. "People who are on the margins of suspicion have been subject to greater attention," said Michael Emerson, senior research fellow at Belgium's Center for European Policy Studies.
Britain, criticized by its European neighbors for being a soft touch on asylum seekers and dissidents wanted for terror offenses abroad, rushed ahead with emergency legislation allowing for their detention without trial for renewable six-month periods. The bill also empowered officials to jail uncooperative witnesses in terror investigations and to search and take into custody airline passengers who aroused suspicion.
In Paris, marines and police officers patrolling the subway were given the right to intercept travelers and search their baggage without offering a reason.
In Germany, where citizens' experiences with Nazism and Communism have left them particularly sensitive to state intrusion into private lives, the government has reintroduced the practice of computer profiling — the search of both public and private records for patterns to help find suspects — which was last seen when the country was fighting its home-grown Red Army Faction terrorists in the 1970's.
Interior Minister Otto Schily, who as a lawyer once represented some of those terrorists, also proposed loosening regulations on phone taps and the monitoring of e-mail and bank accounts — in effect, allowing investigators to pry without any stated suspicion.
The European Council in Brussels moved to create a pan-European arrest warrant and a common definition of "terrorist crime" with a penalty of up to 20 years in jail. Europol, the continental equivalent of Interpol, dropped its restrictions on sharing "personal information" with the United States and made the waiver retroactive to Sept. 11.
Crossborder cooperation on legal and judicial affairs, an elusive objective of the 15- nation Eurozone, instantly fell into place. Sluggish state procedures were jump-started. And through it all, criticism from organizations and individuals usually vocal on the subject of civil liberties was muted. "Fighting terrorism is, of course, necessary," said Gwyn Prins, a specialist on global security for the London School of Economics' European Institute, "but a very fine balance must be brought in to protect civil liberties."
The View From the Street
If the streets of Chattanooga are any reflection, Americans are deeply conflicted about the balance between security and civil liberties in a post-Sept. 11 world.
There are those like Jesse N. McAdoo, a 58-year-old black man who despite his own experiences with racial profiling says he believes it is utterly appropriate to question Middle Easterners. He watched the second plane hit the World Trade Center on television. "With a crime of this magnitude you have to change your whole outlook," he said.
So as for the detainees, lock them up. Secretive military tribunals for suspected terrorists? Bring them on. More surveillance and electronic eavesdropping? No problem. National identification cards? He wears an ID card already, from his employer, the Tennessee Valley Authority
"Given what happened on the 11th, I don't think there's anything they could do that would actually be too much," Mr. McAdoo said. The simple fact, he said, is that all 19 hijackers were Middle Eastern and they probably had Middle Eastern accomplices who remain at large.
"You've got to start someplace until they find out who did it," he said of the government's decision to find and question thousands of men, mostly from the Middle East. "It might be wrong, but they've got to do it."
Just down Broad Street sat Lisa Wright, an unemployed archaeologist (no, that is not redundant, she said), who was sipping coffee and reading the newspaper outside Greenfriar's Coffee and Tea Company.
What Mr. McAdoo sees as a bulwark against terrorism, Ms. Wright sees as a slippery slope. At the moment, she said, the government has too much power to label people as suspects without exposing its evidence. And while the government is presumably well intentioned, she said, the history of constitutional abuses is littered with similar avowals.
"You've got individuals that still have their own agendas," said Ms. Wright, 45. "Every time something happens, they take a little freedom and then grab a little more and a little more. We've let it happen to ourselves, and once you give up a freedom you don't get it back."
Many of those interviewed spoke of the complexity of the dilemma. Several said the country's commitment to civil liberties had allowed the terrorists to enter the country and move about with ease. Something, they said, clearly had to change, and few were confident that toughened enforcement of existing laws would be enough.
And yet many also said the terrorists' goal was not simply the destruction of buildings and the murder of thousands. Their attack, some said, was also a fundamental assault on American values, and to respond by constricting constitutional rights would be equivalent to declaring defeat.
"We shouldn't bend the Constitution and the rights of our citizens just to make things easier for law enforcement," said Shane C. Petersen, 30, who was visiting from Durham, N.C. "They're aiding the terrorists in achieving their ultimate objective."
Those interviewed became more sensitive to possible infringements of civil liberties as the prospect moved closer to home.
Few, for instance, expressed much concern about President Bush's plan to use military tribunals. And only a few voiced opposition to the plan to interview thousands of men.
But the mood often changed when those interviewed were asked about proposals to issue national identification cards and to give the authorities greater power to use electronic surveillance.
Jeffrey L. Rayburn, a 41-year-old engineer from Chattanooga, equated the crimes committed by the terrorists to those committed by the Nazis and said that they warranted the use of military tribunals.
He also said he had no real objection to heightened surveillance. "We've gotten away from the down and dirty and we probably didn't have the intelligence we need to stop this from happening," he said.
But when asked whether the government should have the power to monitor e-mail communications and financial records, Mr. Rayburn drew a line. "If government accessed information on people's private lives and made it available, I'd have a problem," he said.
For many, the issue comes down to trust. Can this government, can any government, be trusted not to abuse powers that have been expanded to respond to a specific and unprecedented threat? Again, the answer shifted a bit as the implications became more personal.
"I can understand where Bush is coming from, given what happened," said Tony L. Price, 53, a warehouse driver. "But I think somewhere down the line that will be taken advantage of and they'll get into people's business."
"If the government can set rules and stick by them, that's one thing," Mr. Price said. "But the government being the government, it will cross the line."
The 'Fear Effect' and Muslims
On Friday, on a a sidewalk in Brooklyn Heights, men and boys spilled out of the Dawood Mosque, eased off their shoes and kneeled for noon prayers on the first day of Ramadan. The 56-year-old mosque, the city's oldest, attracts shop and restaurant owners wearing knit caps as well as professionals in suits.
The imam, Abdalla Allam, said that in the days immediately after Sept. 11 he was touched when non-Muslim neighbors brought flowers to offer support. But since then, many Muslims here say they have felt like targets in a larger society where "Arab" and "Muslim" are often equated with "terrorist."
As the country tries to find a new balance between civil liberties and security, these people increasingly say that, for them, things may be tipping the wrong way.
Immediately following the attack, "the fear effect was rampant," said Ahmed Jaber, a doctor who is chairman of the board of the mosque's parent institute, the Islamic Mission of America. Dr. Jaber said that a lot of women who cover themselves with traditional head scarves faced harassment or abuse.
Lately, though, some of the fear has turned into indignation.
"We are being targeted as Arabs," said Khaled Husein, a Palestinian civil engineer who has been here 20 years. "Sentiment right now is there is some kind of discrimination. We've seen it. Maybe it doesn't resemble the Japanese after Pearl Harbor, but it's similar."
"Twenty years of building bridges to fully integrate into the system, and we feel like it's slipping," Mr. Husein added. "My gut feeling is this is going to create a backlash."
"You have to understand our background," said Dr. Jaber, noting that many Middle Easterners come from countries where officials have the power to imprison people with no pretext. Even after 27 years here, Dr. Jaber said, he still instinctively veers away from policemen. As for recent arrivals, he said: "If somebody knocks from the F.B.I. or the N.Y.P.D., they are scared to death. These are immigrant people who don't understand their rights."
Some had experienced what they considered racial profiling even before the attacks. Muhammed Morsy, 30, a hotel worker from Egypt who arrived here in February, said he was unable to find a job until he stopped using his first name. He got hired, he said, "when I changed it to my father's name, Salah," which is "not so common" an Arab name.
Dr. Jaber called such profiling "subtle" compared with what has been happening since the attack. "If they're going to tap your phone, watch your e-mail, knock on your door, question you without legal representation, that reminds me of going back to the Middle East again, because that's how the Middle Eastern governments operate," he said.
Mr. Husein said some local Muslims had already opted to return to their countries in the wake of the attack. Neither he nor the mosque elders were aware of anyone being contacted for questioning since the Justice Department announced its plan, nor had they heard complaints from those who might fit the interviewee profile.
Some people said they had no problem with the interviews. "If it's for the purpose of obtaining information, my door's open," said Alan Abdelhack, 24, a Palestinian- American psychology student who was born in Brooklyn.
But Dr. Jaber and others said that for some people the situation presented a dilemma.
"Many young people aren't expressing fear, because if they say `I'm for it,' that's a problem, and if they say `I'm against it,' that's a problem," Dr. Jaber said. "If I am against it, it makes me look suspicious. If I am for it, that's bad because I'm bringing the investigation unnecessarily into the community. Either way, it is encroaching on my civil liberties."
In recent days, he said, things seemed to be getting worse. "Officials come and say there's a distinction between terrorists and Islam," he said. "Publicly they say we are friends. But secretly they say, `No, go behind them, tape them and spy on them.' "
This article was reported and written by Tara Bahrampour, David Firestone, Warren Hoge and Kevin Sack, with Ms. Toner.