Lawyers consider rights of enemy combatants, government spying

SEATTLE -- The nation's largest lawyers group is set to condemn the government's refusal to give legal rights to American enemy combatants, part of the Bush administration's terrorism-fighting strategy.

The American Bar Association also is expected to press for more openness about government surveillance in the United States.

The war on terror has been a prominent theme at the association's winter meeting in Seattle, a port city where signs of the heightened terror alert were evident with tighter security on the water, at the airport and the state border with Canada.

ABA leaders will vote as early as today on the proposal calling for lawyers to be provided to Americans and U.S. residents held as combatants to help them argue in court that their detentions are illegal.

The government will not release the names of those held as combatants, and only a couple of examples of detentions in America are widely known. The most high profile is Jose Padilla, accused of plotting to detonate a "dirty" bomb, which would use a conventional explosive to spread radioactive material.

Enemy combatants, a type of wartime prisoner, are held without charge or trial and are not allowed to see lawyers.

Miami lawyer Neal Sonnett said it is un-American to deny legal rights to Americans or anyone else in the country when they are apprehended.

"We cannot allow individual rights to be eroded as part of the war on terror," Sonnett said Sunday.

Supporting the government's policy is David Rivkin Jr., a lawyer from Washington, D.C., who said the administration has foiled crimes with information obtained from combatants. Giving them lawyers would ruin interrogations and threaten the public, Rivkin said.

Sonnett and Rivkin were debating the issue late Sunday at an event jointly sponsored by the ABA and the more conservative Federalist Society.

The resolution was being revised to satisfy some critics, by spelling out that judges could impose restrictions on lawyer-combatant meetings so that national security is not compromised.

The 400,000-member lawyers' group also is weighing in on the increased surveillance power Congress gave the government after the Sept. 11, 2001, attacks. An ABA resolution would ask lawmakers to amend the law and order more oversight of wiretapping and searches granted by the Foreign Intelligence Surveillance Court.

That panel of federal judges, who meet in secret, handles government requests to gather intelligence on suspected spies, terrorists or foreign agents in the United States. The court was created in 1978.

The administration has argued that the surveillance is important for its terrorism investigations.

The ABA would urge Congress to require the court to give annual statistics of its work and clarify when it can allow surveillance.

Mark Agrast, a Washington, D.C., lawyer who heads the ABA committee that developed the proposal, said the court's activities are too secret, and the secrecy may conceal constitutional violations.

"You never know whether you've been under surveillance. That's a sobering power to give to anybody," Agrast said.

Scott Silliman, director of Duke University's Center on Law, Ethics and National Security, said he is not worried that the judges on the court are "going to be under the thumb of the attorney general."

He expects legal challenges to the government's monitoring in criminal cases that arise from information collected. "The courts need to speak before the ABA comes on too strong," he said.

Little was known about the secret court until last year, when it rejected a wiretap request by the Justice Department and publicized its decision. The department appealed and won.

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