Using aggressive legal tactics to pursue terrorists is necessary to prevent another attack, particularly from “sleeper agents” waiting to strike, the lawyer overseeing the Justice Department’s anti-terrorism effort told lawmakers yesterday.
Michael Chertoff, assistant attorney general for the criminal division, said the September 11 attacks on Washington and New York City have forced “an extraordinary redefinition” of the Justice Department’s mission, including the use of new powers authorized by Congress in the anti-terrorism bill passed in October.
But he argued that every method law enforcement is using is legal.
“The detentions, the targeted interviews and the other aggressive investigative techniques we are currently employing are all legal under the Constitution and applicable federal law as it existed both before and after September 10. Nobody is being held incommunicado; nobody is being denied the right to an attorney; nobody is being denied due process,” he said.
Mr. Chertoff appeared before the Senate Judiciary Committee, where senators spent three hours grilling him about whether expediency in the war on terrorism is causing the administration to sacrifice civil liberties particularly for those being detained in connection with the investigation of the September 11 attacks. Democrats on the committee questioned the use of military tribunals, eavesdropping on attorney-client conversations and the detention of more than 600 suspects without revealing most of their identities.
“If we’re going to change our system in all these different ways without adequate consultation [and] oversight by Congress, the very foundations of our system are threatened,” said Sen. Russell D. Feingold, Wisconsin Democrat. “People who are detained have a right to be able to believe they get to operate based on the rules we traditionally follow, not a whole new set of rules.”
Mr. Chertoff said 548 persons are being detained by the Immigration and Naturalization Service and 55 persons are being held on separate criminal charges. In addition, he said, others are being held on court-ordered warrants as material witnesses in ongoing grand jury investigations into the attacks, but he said the law prevents him from revealing their identities or even how many fall into that category.
Democrats and one Republican on the panel were particularly upset the administration failed to consult with them before President Bush proposed military tribunals to try captured terrorists.
Committee Chairman Patrick J. Leahy, Vermont Democrat, said he would have expected some notice last month on the use of military tribunals, when Congress and the administration were working out details of the anti-terrorism bill that eventually passed both chambers overwhelmingly. The bill gave the Justice Department new tools to investigate suspected terrorists.
Sen. Arlen Specter, Pennsylvania Republican, also questioned why the administration did not consult the committee. “How can you talk about a full partnership when no one told us this was coming down?” he said.
Mr. Chertoff said he wasn’t in a position to comment on the administration’s decision-making process. But he said the president’s authority to create tribunals is entrenched in law under his powers as commander in chief of the military, and is established by legal precedent.
Mr. Chertoff said the tribunals could serve an important security role by allowing for trials outside the United States, thus sparing New York or Washington from being a target for more terrorist attacks.
Also, most of the Republicans on the committee supported the administration’s new powers.
The criticism “appears confined to those who make their living carping about the government, especially Republican administrations,” said Sen. Orrin G. Hatch, Utah Republican and the ranking member of the committee.
Procedures for the tribunals are still being worked out by the Defense Department, but some senators said they fear the tribunals will become secret affairs that are short on protections like burden of evidence and standards for conviction exactly the type of proceedings the United States has criticized other countries for holding.
On the domestic front, Justice Department officials are particularly concerned about “sleeper agents” terrorists sent to a target location far in advance of a planned attack.
Yesterday’s hearing was a warm-up for next week, when Attorney General John Ashcroft will appear before the committee to answer many of the same questions. Meanwhile, the Armed Services Committee will hold an oversight hearing next week to question Defense Department officials about the use of military tribunals.