WASHINGTON POST– The Bush administration is developing a parallel legal system in which terrorism suspects – U.S. citizens and noncitizens 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 noncitizens, 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 that they have chosen to prosecute suspected Taliban member John Walker Lindh, “shoe bomber” Richard Reid and alleged Sept. 11 conspirator Zacarias 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.
“I wouldn’t call it an alternative system,” said an administration official who has helped devise the legal response to the terrorist attacks of Sept. 11, 2001. “But it is different than the criminal procedure system we all know and love. It’s a separate track for people we catch in the war.”
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© COPYRIGHT WASHINGTON POST, 2002
