WASHINGTON The Bush administration was considering the use of military tribunals to prosecute suspected foreign terrorists prior to the passage of a tough new anti-terrorist law last month, but did not tell Congress of the plan because it did not require legislative action, a top Justice Department official testified yesterday.

Speaking at a Senate Judiciary Committee hearing called to examine sweeping new anti-terror policies that some lawmakers have criticized, Assistant Attorney General Michael Chertoff said that military trials fall within the president”s power “as commander-in-chief.”

But Democratic senators at the hearing, led by Chairman Patrick Leahy of Vermont, were sharply critical of the Nov. 13 order that empowered Bush to order military trials for non-U.S. citizens and of the failure to consult Congress before issuing the directive and others that are part of the broad new anti-terror campaign. Republican senators, with the exception of Arlen Specter of Pennsylvania, were highly supportive of the crackdown.

Despite the cooperation between the White House and Congress that led to swift passage of the new anti-terror law, Leahy said, the administration has since disregarded “the checks and balances that make up our Constitutional framework.”

Instead, he said, the executive branch “has chosen to cut out judicial review” in a new order that allows Attorney General John Ashcroft to initiate monitoring of attorney-client communications of suspected terrorists, “and to cut out Congress in determining the appropriate tribunal and procedures to try terrorists.”

Chertoff, who heads the Justice Department”s criminal division, said he was confident that all the steps taken thus far have been “within carefully established constitutional limits.” Emphasizing the carnage of the Sept. 11 terrorist attacks, he said the suspected mastermind, Osama bin Laden, and members of his al-Qaida terrorist network have since announced “they will kill more of us.

“So for those of us who question whether we are at war,” Chertoff said, “my answer is, Mr. Bin Laden has declared war on us. … Are we being aggressive and hard-nosed? You bet. But let me emphasize that every step that we have taken satisfies the Constitution and federal law as it existed both before and after September 11th.”

Leahy, however, said he was especially dismayed by Bush”s order for military tribunals, voicing fears that it could become a model for use by foreign governments against Americans overseas. The order allows the Pentagon to set rules and procedures less rigorous than those that govern U.S. criminal prosecutions, permits convictions and death sentences on a two-thirds vote and ostensibly prohibits judicial review of verdicts.

Chertoff said such tribunals had a solid history dating back to the American Revolution.

Leahy, however, pointed to Spain”s reluctance to extradite suspects to the United States if they are to be tried by military commissions. In bypassing the civilian courts, he said, “it sends a terrible message to the world that, when confronted with a serious challenge, we lack confidence in the very institutions we are fighting for.”

Like Leahy, Specter derided Chertoff”s claims that Congress was “a full partner” in the fight when “nobody let us know” the military order was being prepared. Leahy noted that he had asked Ashcroft after a Sept. 25 hearing whether the President was considering “using the military tribunal system.”

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