The Bush administration has moved swiftly in the past few weeks to expand its national security authority and law enforcement powers in ways that are intended to bypass Congress and the courts, officials and outside analysts say.
The recent executive branch orders, which administration officials say are necessary legal weapons in the war against terrorism, allow the government to use military tribunals to try foreigners charged with terrorism; permit the questioning of thousands of mostly Middle Eastern men who have recently entered the United States; slow down the process for granting visas to Muslim men and monitor communications between some people in federal custody and their lawyers.
"Foreign terrorists who commit war crimes against the United States, in my judgment, are not entitled to, and do not deserve, the protections of the American Constitution, particularly when there could be very serious and important reasons related to not bringing them back to the United States for justice," Attorney General John Ashcroft said Wednesday, alluding to the use of military tribunals. "I think it's important to understand that we are at war now."
Speed is of the essence, administration officials say, arguing that even a wartime Congress would not move fast enough to help the authorities counter new terrorist threats.
But some lawmakers say they are increasingly concerned about such a unilateral approach to issues fraught with constitutional implications. They note that Congress has offered little resistance to most of the administration's security-related requests since the attacks, producing an antiterrorism law that Ashcroft demanded in just six weeks.
Now, said Sen. Patrick J. Leahy, D-Vt., who is the chairman of the Judiciary Committee, lawmakers are learning about major policy shifts in the newspapers. "We're really not being consulted at all, and it's hard to understand why."
It is not only Democrats who have qualms about the administration's approach. Rep. Bob Barr, R-Ga., and a member of the Judiciary Committee, said, "I'm not aware that they're consulting at all."
Leahy added in an interview on Wednesday night: "We have tried to bend over backwards to give bipartisan support, because most of us have been here for some period of time, and we know that kind of unity gives credibility to what we're doing, and also makes a very concerned American population less concerned. They've got to realize that simply going it alone like this isn't making people feel more secure, it's making them feel more concerned."
Leahy expressed particular concerns about setting up a military tribunal to try suspected terrorists, suggesting that it could send "a message to the world that it is acceptable to hold secret trials and summary executions, without the possibility of judicial review, at least when the defendant is a foreign national."
Sen. Tom Daschle of South Dakota, the Democratic leader, said that he had constitutional concerns over the administration's decision to allow special military tribunals. Daschle said he supported the goal of swift justice for terrorists, but wanted to ensure that it was done without undermining constitutional protections.
Administration officials insisted on Wednesday that all of the changes they had instituted over the past few weeks were not only constitutional but merely a revival of powers that had been used in the past.
Prof. Phillip B. Heymann of Harvard Law School, a former deputy attorney general under President Clinton, said he believed that the government wanted the military tribunal because of a fear that it might not be able to convict Osama bin Laden or other suspected terrorists in civilian courts.
Administration officials said military tribunals would be better able to protect confidential information.
But Heymann said that some terrorists, notably those charged in the 1993 World Trade Center bombing, had been successfully prosecuted in civilian courts with a law that allows classified information to be used in a trial without being disclosed to the public. Similarly, the administration said the tribunals would allow for the protection of witnesses and jurors, but Heymann said that countless Mafia and drug cartel trials had been conducted where both witnesses and jurors were protected.
"I understand that if we got bin Laden and he were acquitted it would be a staggering event," Heymann said. "But the tribunal idea looks to me like a way of dealing with a fear that we lack the evidence to convict these people."