Backlash builds on a quiet Hill

If history is any guide, wartime Congresses are usually irrelevant. They may thunder and roar, but in the end, the president decides the conduct of a war - including curtailing cherished liberties when deemed necessary.

That's a record some members of the 107th Congress are eager to revise. And today's hearings in the Senate Justice Committee aim to serve notice to the Bush administration that Congress will not be left out of this war on terrorism.

Unlike some other wartime legislatures, this Congress has no doubts on the purpose of this war. Lawmakers passed new anti-terrorist laws with barely a hitch, including broad new powers to detain those suspected of a connection with terrorist activity, to track their funds, and to eavesdrop on private conversations.

But a backlash is brewing on Capitol Hill over steps the Bush team has taken since then to expand its powers to conduct the war - all without consulting or even informing lawmakers.

These include new Justice Department regulations that would allow the government to listen in on detainees' conversations with their attorneys and an executive order that allows the trial of suspects in military tribunals instead of US courts.

What bothers some lawmakers isn't just the substance of these changes, which they say infringe on constitutional protections that Americans and many noncitizens living in this country have come to expect. It's the way they were simply announced: no consultation. Not even any hint in advance that the administration believed it needed these additional powers.

This lack of consultation is especially galling to the top members of the Senate Judiciary Committee: Chairman Patrick Leahy (D) of Vermont and ranking Republican Orrin Hatch of Utah. They had personally negotiated terms of the new antiterrorist law with the White House and Justice Department, and then sold it to the Senate.

These senators found out about the new regulations from the news media. After sending several letters and receiving no reply, the two senators set a deadline for responses and called on the attorney general to set aside "several hours" to answer these concerns before the full Senate Judiciary Committee. Mr. Ashcroft has agreed to appear on Dec. 6.

At issue will be the extent to which Congress can hold the executive branch accountable for its conduct of this war.

"One of the themes of the last month or two has been the cutting out of the Congress and the courts from being part of the new rulemaking and legislating," says Kit Gage, director of the First Amendment Foundation, a civil liberties group. "That's why it's crucial that the Senate hold the Justice Department accountable for the many dramatic, and in many ways draconian, changes taking place."

One issue members of Congress especially want clarified is the conditions under which a terrorist suspect will be tried in a military tribunal rather than a regular court of law. Lawmakers and some legal experts worry that legal US residents could be swept up in an alternative judicial system that denies them basic rights.

"A fairly sizable segment of the population does not understand the difference between a military commission and a military court martial," says Scott Silliman, a Duke University legal expert and former Air Force attorney.

The president's Nov. 13 military order provides for military commissions, a form of tribunal that has many fewer due-process protections than a court martial: There are more-flexible rules of evidence. Hearsay and secret evidence is permissible; appeals are not. And a two-thirds vote of an officer panel is sufficient to convict for sentences that can include the death penalty.

Last week, Spanish officials said their country would not extradite eight men suspected of involvement in the Sept. 11 attacks as long as there was a possibility that they could receive a trial in a military court or face the death penalty.

In the House, some Democrats are calling for similar hearings on civil liberties and the role of Congress in wartime.

"The World Trade Center is in the middle of my district, [but] we must not use the attack ... as an excuse to destroy our Constitution," said Rep. Jerrold Nadler (D) of New York, in a statement opposing the presidential order on military tribunals.

Critics of the White House on the Senate Judiciary Committee claim many of their congressional colleagues have similar concerns. But in fact, not many have spoken out.

"This is wartime, and politicians fear to do anything that might be interpreted as helpful to the enemy and harmful to our just cause," says Larry Sabato, a University of Virginia political scientist.

Some legal experts say the president is within his rights as commander in chief to order tribunals. But they add that Congress also has rights that it has yet to exercise.

"The biggest question is not 'can it be done in the Constitution' but 'should it be done unilaterally by the president,' " says Akil Amar, a professor at Yale Law School.

"Sometimes, we move so fast to the Bill of Rights, that we forget that the rest of the Constitution is there," he says. "The first Article is that the legislative power is vested in the Congress.... It's first for a reason."