The most tension-packed moment of Assistant Attorney General Michael Chertoff's appearance before the Senate Judiciary Committee last week came, not surprisingly, when he was forced to defend the Bush Administration's embrace of military tribunals. How could the U.S. hold trials in which the judges are military officers, just a two-thirds vote is sufficient to convict, and there is no need for proof beyond a reasonable doubt? How could the Administration support legal proceedings that are held in secret--meaning a defendant can go from being charged to being put to death without the public ever finding out? "Whether you have a civilian tribunal or a military tribunal, it's possible to have a fair one and it's possible to have an unfair one," said Chertoff with steely determination. "It's how you implement it."
The Bush Administration has been just as resolute in defending other hard-nosed legal strategies it has rolled out since Sept. 11--a broad array of tactics that supporters are calling necessary tools in the war on terrorism and that critics are attacking as the sharpest curtailment of civil liberties in decades. Among the flash points: a new measure that allows the government to listen in on conversations between some suspects and their attorneys, the detaining of more than 500 people nationwide without publicly revealing their identities or the charges against most of them, and the ongoing interrogation of 5,000 people within the Arab-American or Muslim communities.
It's been true throughout American history that when the bullets fly, civil liberties are among the first casualties. During the Civil War, Abraham Lincoln suspended the right of habeas corpus, the constitutionally enshrined procedure by which a defendant can challenge a wrongful conviction. In World War II, Franklin Roosevelt interned 120,000 Japanese Americans and tried accused German saboteurs in military courts. The Bush Administration is leaning on these historical precedents in saying the traditional balance between security and freedom needs to shift, at least in the short term. "We're an open society," President Bush declared last week, "but we're at war."
The public, so far at least, is going along. Polls show strong support for everything from increased government power to detain legal immigrants--82% are in favor, according to a Gallup survey--to military tribunals. Most seem to agree with the blunt logic of Utah Republican Senator Orrin Hatch. "Yes, the Administration has been aggressive in using all of the constitutional powers at its disposal," he argues, but it's justified because terrorists "are trying to kill Americans--as many as they possibly can."