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Cato Daily Dispatch for December 3, 2002

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(Links to outside sources were active as of the date of this dispatch; however, not all news sources maintain links to current stories indefinitely. Some links also may require registration.)

Bush Plans Separate Legal System for "Enemy Combatants"

The Bush administration is developing a parallel legal system in which terrorism suspects--U.S. citizens and noncitizens alike--may be investigated, jailed, interrogated, tried and punished without legal protections guaranteed by the ordinary system, reports The Washington Post.

The elements of this new system are already familiar from President Bush's orders and his aides' policy statements and legal briefs: indefinite military detention for those designated "enemy combatants," liberal use of "material witness" warrants, counterintelligence-style wiretaps and searches led by law enforcement officials and, for noncitizens, trial by military commissions or deportation after strictly closed hearings.

Only now, however, is it becoming clear how these elements could ultimately interact.

Robert A. Levy, Cato senior fellow in constitutional studies, wrote in "Citizen Padilla: Dangerous Precedent", a Cato Daily Commentary, that "the Constitution does not distinguish between the protections extended to ordinary citizens on one hand and unlawful-combatant citizens on the other . . . . The administration has decided that it will set the rules, prosecute infractions, determine guilt or innocence, then review the results of its own actions. That's too much unchecked power in the hands of the executive branch."

Legality of McCain-Feingold Law Challenged

The New York Times reports that some of the nation's most accomplished lawyers will face off this week in a courtroom in Washington in the first showdown over the constitutionality of the new campaign finance law.

Supporters of the Bipartisan Campaign Reform Act, also called the McCain-Feingold law, which bans the large campaign contributions known as soft money, say it will curb corruption in politics. Opponents say it is an insidious attempt to criminalize political free speech.

John Samples, director of Cato's Center for Representative Government, and Cato Senior Fellow Patrick Basham detail the problems with the Bipartisan Campaign Reform Act in a commentary published by The New York Times. In "Meet the New Loopholes", they conclude, "The Bipartisan Campaign Reform Act will certainly change American politics, but probably not for the better. Elections will be less competitive, interest groups will become wealthier and our political system will become increasingly tied up in the courts."

Election Results May Accelerate Social Security Reform

White House advisers are debating whether President Bush should push next year to add individual investment accounts to Social Security, according to USA Today. Until last month, the proposal was considered too inflammatory to touch before he ran for re-election in 2004.

But the results of the congressional elections have altered the political calculations around the nation's retirement system.

"What more do we need to know about the political viability?" asks Rep. Pat Toomey (R-Penn.) who was re-elected in a predominantly Democratic district after a campaign that spotlighted his support for investment accounts. "A lot of us want to tackle it in this coming Congress."

Senator-elect John Sununu won a close race in New Hampshire after being portrayed in an opposition TV ad as a lurking figure hauling bags of Social Security money to gamble. He says congressional hearings on investment accounts should begin next year. "The longer we wait, the worse the Social Security shortfall is going to become," says Sununu, who at 38 will be the Senate's youngest member.

Toomey and Sununu will participate in a Cato Institute Hill Briefing tomorrow entitled "The Third Rail is Dead: Social Security and Election 2002".

Wyatt Dubois, editor, wdubois@cato.org