One senior Justice Department official, referring to the Sept. 11 attacks in explaining why the administration is reluctant to expose new policies to time-consuming Congressional debate, said, "People here are imbued with the idea that this shouldn't be allowed to happen again and that has made us impatient."
Another Justice Department official said the approach was to strengthen as many policies as possible that did not require Congressional approval.
"We have a top-to-bottom review going on right now on our policies, all our guidelines and directives," this official said. "We're moving full speed ahead to effect the formal shift in direction of the department and the executive branch to be aimed at prevention of future terrorist acts."
Justice Department lawyers are reviewing and recommending changes in directives on how to deal with undercover operations, foreign intelligence and confidential informants, the official said.
Administration officials insisted on Wednesday that all of the changes they had instituted over the last few weeks were not only constitutional but merely a revival of powers that had been used in past times of crisis.
The policy changes, like the creation of military tribunals for terrorist offenses also reflected immediate, pragmatic concerns over how to prosecute the fight against terrorism, the officials said.
One administration official said on Wednesday that people in the government were keenly aware of the deeply unsatisfying outcome in the trial this year of two Libyans charged in the bombing of Pan American Flight 103 over Lockerbie Scotland, in which one low-level operative was convicted and another acquitted. "This was not an outcome we would want here," one of the Justice Department officials said.
George Terwilliger, a former deputy attorney general in the first Bush administration, said that he believed the government was not expanding its legal authority as much as dusting off little-used powers.
"All of these actions are well within the boundaries of the Constitution, but it's just officials acting more aggressively," Terwilliger said. "There is a range of permissible activities, and we're using more of that range than we do in times of peace."
Professor Phillip Heymann of Harvard Law School, a former deputy attorney general under President Bill Clinton, said he believed that the government wanted the military tribunal because of a fear that it might not be able to convict Osama bin Laden or other suspected terrorists in civilian courts.
Administration officials said military tribunals would be better able to protect confidential information.
But Heymann said that some terrorists, notably those charged in the 1993 World Trade Center bombing, had been successfully prosecuted in civilian courts with a law that allows classified information to be used in a trial without being disclosed to the public. Similarly, the administration said the tribunals would allow for the protection of witnesses and jur-ors, but Heymann said that countless Mafia and drug cartel trials had been conducted where both witnesses and jurors were protected.
"I understand that if we got bin Laden and he were acquitted it would be a staggering event," Heymann said. "But the tribunal idea looks to me like a way of dealing with a fear that we lack the evidence to convict these people."
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