Posted on Mon, Dec. 02, 2002

By Charles Lane

Washington Post

WASHINGTON - The Bush administration is developing a parallel legal system in which terrorism suspects - U.S. citizens and non-citizens 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 non-citizens, trial by military commissions or deportation after strictly closed hearings.

Only now, however, is it becoming clear how these elements could ultimately interact.

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 they have chosen to prosecute American Taliban John Walker Lindh, "shoe bomber" Richard Reid and alleged Sept. 11 conspirator Zacharias 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 intelligence.

At least one American has been shifted from the ordinary legal system into the parallel one: alleged al-Qaida "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 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 fierce debate.

Civil libertarians accuse the Bush administration of an executive-branch power grab.

"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 non-profit group that has challenged the administration approach in court.

Administration officials say 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 Olson, who leads the administration's anti-terrorism legal team in the federal courts, said in an interview.

Probably the most hotly disputed element of the administration's approach is its claim that the president alone can designate individuals, including American 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, who was held as a material witness for a month after his May 8 arrest in Chicago before he was designated an enemy combatant, 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 Louisiana-born 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 he was born in the United States.

Attorneys are challenging their detentions in federal court.

"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 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 says there is ample precedent for what it is doing.

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."

"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 circumstances."