Why Congress is quiet on liberties

The big news may be the deafening silence - especially on Capitol Hill - on matters that in ordinary circumstances would prompt vigorous dissent.

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One reason for the congressional quiescence: The moves were undertaken unilaterally by the executive branch, thus bypassing traditional consultation.

More broadly, the wartime atmosphere here remains such that few lawmakers want to risk being perceived as breaking ranks.

Still, concerns about protecting constitutional freedoms - and about White House failures to consult Congress - are growing.

"The way this was handled ... contributes to the rising concern in Congress about this administration's preference for unilateralism," says Sen. Patrick Leahy (D) of Vermont. "This approach needlessly threatens the unity that Congress and the administration have forged since Sept. 11."

The unilateral moves include:

• Permission for military trials for suspected terrorists (secret evidence is allowed; appeals are not).

• A suspension of the right of detainees to have private conversations with attorneys, if the US Attorney General deems they might pose a threat to the public.

• A Justice Department plan to interview 5,000 young men who have entered the US from specified nations since 2000.

Administration officials say these and other measures are needed to combat terrorism and protect American lives.

Although there have been few protests so far on Capitol Hill, where lawmakers are racing to wrap up key spending bills, members say that could change.

"We've been preoccupied with other things," says Senate Majority Whip Harry Reid (D) of Nevada. "I can live with the new military court and the 5,000 interviews, but I can't live with not allowing attorneys to speak to clients in private. We're seeing what we can do about it."

The Justice Department has detained more than 1,000 people since Sept. 11. But neither Congress nor civil rights groups have been able to find out how many are still detained and what, if any, charges have been filed.

A Freedom of Information request by the American Civil Liberties Union and other groups on these points was turned down by the Justice Department on Tuesday. And the top Democrats on the Senate and House Judiciary Committees say that their requests for more information on the detainees and how the new regulations will be carried out have also met with no response.

On Wednesday, Rep. John Conyers (D) of Michigan called for congressional hearings on "the broad array of concerns raised by Federal law enforcement policy in the wake of the terrorist attacks."

But Democrats admit that it's tough to go up against the executive branch at a time of national emergency. Congress was not in session when President Lincoln suspended habeas corpus - the right to have the legality of detainment determined in court - early in the Civil War.

"In other cases [in which the executive branch encroached on civil liberties], isolated members have complained, but the counterforce of the emergency or civil war muted a lot of that criticism," says Senate historian Richard Baker.

Faced with an unprecedented attack on US soil, stronger measures are necessary, and not all require vetting with the Congress, administration officials say.

In a speech this week, Attorney General John Ashcroft likened the current war on terrorism to President Kennedy war on organized crime. "The Justice Department of Robert F. Kennedy, it was said, would arrest a mobster for spitting on a sidewalk, if it would help in the fight against organized crime. In the war on terror, it is our policy ... to be equally aggressive in protecting American citizens," he said Tuesday.

Many lawmakers agree with the new approach. "The eavesdropping on conversations with attorneys is pretty limited, and it has to be approved by the attorney general," says Sen. Don Nickles (R) of Oklahoma.

But civil rights groups say there is a difference between going after mobsters and targeting many Arab Americans with no known connection to terrorism. Combined with powers to detain indefinitely in the new antiterrorism law, this approach could unfairly target certain groups.

"We're looking like a third world country with military tribunals and holding people without charges," says James Zogby, president of the Arab American Institute. "It doesn't sound like America, and a year or two from now, we'll be saying, 'Why did we let this happen?' "