A Bellwether for the Power of a President

The New York Times
A Bellwether for the Power of a President
By JONATHAN MAHLER

TAKE a good look at the prosecution of Zacarias Moussaoui, an admitted member of Al Qaeda who may soon be sentenced to death, after pleading guilty to conspiracy in connection with the Sept. 11 attacks. It may be the last time a suspected terrorist will enjoy the full panoply of rights — a jury of civilians, an independent judge, the guarantee of an open trial — accorded to criminal defendants in the United States.

Instead, the government plans to try accused terrorists before special tribunals in which the judge is appointed by the Pentagon, the jurors are military officers and certain canonical rights in our civil system — like the right to be present at all sessions of the trial — are absent. The future of the tribunals will be up to the Supreme Court, which will rule on their legality in Salim Hamdan v. Defense Secretary Donald Rumsfeld, which is to be argued on Tuesday.

Salim Hamdan, born in Yemen, was captured in Afghanistan in November 2001 and has confessed to working as a driver for Osama bin Laden. Like Mr. Moussaoui, Mr. Hamdan was charged with conspiring with Al Qaeda to commit acts of terrorism. The critical distinction, though, is that Mr. Hamdan was charged as a war criminal, meaning he was designated for prosecution before a military tribunal rather than in a federal court. His lawyers, led by Neal K. Katyal, a professor at Georgetown University, have sued to block the tribunal; hence Hamdan v. Rumsfeld.

There is much more at stake here than the fate of one detainee. Mr. Hamdan's case will test a broader strategic shift in the American approach to fighting terrorism. By treating terrorism as an act of war rather than a crime, the Bush administration is hoping to end an embarrassing string of botched criminal terrorism prosecutions, including those of Mr. Moussaoui — where the judge recently rebuked a government prosecutor for improperly coaching witnesses — and Sami al-Arian, who is accused of being an Islamic Jihad activist and who was acquitted of various charges by a Florida jury several months ago.

The administration is also trying to ease the burdens of proof on its prosecutors, whom the government believes are at a disadvantage in the post-Sept. 11 era, when the emphasis is on prevention of terrorist attacks rather than their prosecution. "If you are serious about stopping people before things take off, then necessarily your evidence is going to be more ambiguous," said Andrew McCarthy, the lead prosecutor in the 1993 World Trade Center bombing.

More significant, President Bush would be extending his commander-in-chief authority to the war on terror. What this means in a practical sense is that he and his successors would be vested with perhaps greater wartime powers than any previous president. Unlike prior wars, limited by duration and geography, the war on terror is global and potentially endless. Indeed, terrorism will last well beyond the defeat of radical Islam.

IS the war on terror really a war?

The logical parallel to Sept. 11 would appear to be Pearl Harbor, but Bruce Ackerman, a Yale law professor and author of "Before the Next Attack," argues that the two are not the same. "Pearl Harbor was an act of violent incursion that everybody recognized augured more violent acts of incursion because there was a Japanese fleet out there," he says. "We don't know whether we're looking at a powerful and well-organized enemy, or some terrorists who just happened to get lucky."

Yet the alternative — defining terrorist attacks simply as crimes — doesn't seem quite right either. After all, it was no coincidence that a target of the Sept. 11 hijackers was the headquarters of the United States military. Terrorists are capable of inflicting damage on a scale beyond the reach of any criminal enterprise. Anyway, the United States has responded to the attacks with military force; it seems a little late to debate whether the country is at war.

What are the implications of an unending war with no geographical boundaries? In one of their briefs, Mr. Hamdan's lawyers warn of "a dangerous and unprecedented expansion of executive authority" that would be tantamount to a re-allocation of constitutional power. A precedent that gave the president sweeping authority to fight the war on terror, they argue, could become "the edifice upon which any number of actions could be grounded, even against U.S. citizens." The president could assert his commander-in-chief powers to permit electronic surveillance without a wiretap, for instance, or to detain indefinitely an American citizen arrested in Cleveland.

Draconian as this sounds, advocates of the administration's position point out that warrantless surveillance and protracted detentions of suspected enemy combatants, even if they are American citizens, pale in comparison with the suspensions of civil rights deemed necessary in previous wars. During World War I, for instance, an American was sentenced to 10 years for questioning the "good faith" of our ally. His crime was making a film that depicted British atrocities in the Revolutionary War.

The court has traditionally deferred to the president in wartime, then gradually stripped the office of any newly accrued authority once the hostilities ended. Given the indefinite nature of the war on terror, though, this pattern no longer seems relevant.

The last time a president tried to make the case that the theater of war should not be confined to the area of hostilities, he was rebuffed: during the Korean War, the Supreme Court barred Harry S. Truman from seizing steel mills to prevent a strike. Of course, Truman could not point to a recent attack on American soil to help make his case.

In short, the Hamdan case presents the Supreme Court with two historically unappealing choices: to police the president's ability to make war or to allow executive authority to go unchecked.

Jonathan Mahler, a contributing writer for The New York Times Magazine, is writing a book about the Hamdan case.