A top deputy to Atty. Gen. John Ashcroft defended the Bush administration's aggressive war on terrorism Wednesday as both legal and justified, but he faced harsh criticism from lawmakers on some of its more controversial tools.
Democrats and some Republicans on the Senate Judiciary Committee expressed their dismay over the administration's exercise of new legal powers, and questioned Deputy Atty. Gen. Michael Chertoff, often testily, for more than three hours.
In particular, senators criticized the administration's plans to try suspected terrorists before secret military tribunals and the detention of hundreds of unnamed suspects in the investigation of the Sept. 11 terrorist attacks.
Senators also wanted to know why the Justice Department is eavesdropping on phone conversations between some suspected terrorists in federal custody and their lawyers, and why some of the changes have been implemented by the Justice Department without their input.
Committee Chairman Patrick J. Leahy (D-Vt.) said the Justice Department, the White House and Congress had worked together in drawing up dramatically expanded powers to allow federal agents and prosecutors to wage their fight against terrorism. Leahy said those efforts resulted in the overwhelming passage last month of sweeping anti-terrorism legislation.
But since then, Leahy complained, the administration and the Justice Department have "departed from that example to launch a lengthening list of unilateral actions," including some that he said appear unconstitutional.
"Rather than respect the checks and balances that make up our constitutional framework, the executive branch has chosen to cut out judicial review in monitoring attorney-client communications and to cut out Congress in determining the appropriate tribunal and procedures to try terrorists," Leahy said.
Chertoff responded that top Justice Department officials considered members of Congress their "full partners" in the Sept. 11 investigation and overall fight against terrorism.
"How can you talk about full partnership when nobody let us know that this executive order was coming?" Sen. Arlen Specter (R-Pa.) asked in reference to the military tribunals, which would replace open criminal trials of some suspected terrorists.
Chertoff said that Bush, as president and commander in chief of the armed forces, has the power to authorize the tribunals.
Leahy and other senators had wanted to direct their criticism at Ashcroft. But Ashcroft told the Judiciary Committee, which only narrowly approved his nomination as the country's top law enforcement official, that he would be meeting with federal prosecutors. Ashcroft sent Chertoff, who runs the criminal division, on Wednesday but promised to appear before the committee next week.
Chertoff repeatedly defended some of the controversial tactics employed in the terrorism investigation. He said it was necessary to use military tribunals to try terrorists because "we are at war . . . and military commissions are a traditional way of bringing justice to persons charged with offenses under the laws of armed conflict."
He said that wholesale detentions of suspected terrorists and the monitoring of jailhouse conversations are needed to preempt future terrorist attacks. "Sleeper" terrorists have burrowed into communities around the United States and the old ways of finding them are no longer enough, he said.
Chertoff said none of the suspected terrorists in custody has been subjected to the eavesdropping policy.
On Tuesday, the Justice Department released information on more than 600 individuals detained in the terrorism investigation, most of them on relatively minor immigration violations. None of the 93 people named in the accounting of federal criminal charges has been accused of participating in terrorist activities.
Chertoff told the committee that the department has not abused its new powers and that thwarting planned terrorist attacks is its new top priority.
"We are pursuing that priority aggressively and systematically with a national and international investigation of unprecedented scope," Chertoff said, "but we are doing so within established constitutional and legal limits."
Republicans, for the most part, were supportive of the Justice Department's tactics, even its most controversial ones.
The ranking Republican on the committee, Sen. Orrin G. Hatch of Utah, told Chertoff: "Most Americans worry that we are not doing enough to thwart potential terrorist attacks, not that we are doing too much. We might be better served if next week's hearing with the attorney general focuses on whether we have done all we can to address the threat of terrorism and to help our president obtain all the tools he needs to fight Osama bin Laden and the Al Qaeda organization."
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Times staff writer James Gerstenzang contributed to this report.