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U.S. Hopes to Draw from British Anti-Terror Laws

MELISSA BLOCK, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.

A magistrate in London decided today the British government will be able to hold suspects in last week's alleged terror plot for another week without charge. It was the first judicial test of the new British terrorism law that allows people to be held for up to 28 days. In the U.S., police generally have to charge or release a suspect within 48 hours. Law enforcement here has expressed interest in the new British law. In fact, this week the Justice Department began a study of U.S. and British anti-terror powers.

NPR's Larry Abramson reports.

LARRY ABRAMSON reporting:

Attorney General Alberto Gonzalez today reiterated his interest in the powers enjoyed by his UK counterparts. Former federal prosecutor Andrew McCarthy says there are good reasons why officials might want to hold terror suspects without charge.

Mr. ANDREW MCCARTHY (Former Federal Prosecutor): Let's say that you get information from a foreign intelligence service whose condition for giving you the information is that it cannot ever, ever be used because the foreign intelligence service is relying on a method of gathering intelligence that they don't want to have revealed.

ABRAMSON: U.S. anti-terror authorities have long pushed for the power to hold suspects longer than they can now, but Congress has only authorized detention of non-citizens. Kate Martin of The Center for National Security Studies says the 2001 USA Patriot Act has a provision -

Ms. KATE MARTIN (The Center for National Security Studies): - that authorizes the government to hold non-citizens without charges when the attorney general certifies that they are suspected terrorists.

ABRAMSON: But that power has apparently never been used. Ditto for the special alien terrorist removal court created in 1996. Kate Martin says that since 9/11, the government has instead found other ways to hold people.

Ms. MARTIN: They rounded up more than 1000 people on immigration charges and kept them in prison without in many instances giving them any kind of process, and when the people were citizens and couldn't be held on immigration charges, they simply said well, we're going to jail you as a material witness.

ABRAMSON: The material witness statute was supposed to make sure witnesses don't disappear before a trial. Civil liberties groups say it has been misused about 70 times since 9/11 and has become a form of pre-trial detention.

Some conservatives agree this power was meant for other purposes. James Carafano of the Heritage Foundation says a new detention law would prevent abuses.

Mr. JAMES CARAFANO (Heritage Foundation): We would all like a legal procedure which says, you know, very clear cut and in a transparent way, this is why we're detaining you. This is the legal review to we show whether it's appropriate or not, and these are kind of the time limits as to how long we can detain you.

ABRAMSON: Most famously, the Bush administration has designated a handful of suspected terrorists as enemy combatants and held them for years without charge. Attorneys for Yasser Hamdi fought his detention all the way to the U.S. Supreme Court.

Kate Martin of the Center for National Security Studies says one of the Court's most conservative voices wrote a dissent in the Hamdi case that reaffirmed the need to charge or release every prisoner.

Ms. MARTIN: Justice Scalia, dissenting in that case, said citizens can only be picked up and held if they're charged with a crime and that's the purpose of the Bill of Rights and the writ of habeas corpus.

ABRAMSON: That logic along with the views of the court majority would seem to doom tougher detention laws.

Even Great Britain, which has no written constitution, is far from consensus on this problem. James Welsh with the British civil liberties group Liberty says courts there struck down anti-terror powers that were granted by the Patriot Act in the U.S.

Mr. JAMES WELSH (Liberty): Provisions that's allowed for the detention in prison of foreign nationals suspected of being international terrorists were struck down by the courts here on the basis that that was discriminatory because it was a measure as applied to foreign nationals and not to British nationals.

ABRAMSON: So the Justice Department study may find that on balance, investigators here have plenty of power to get the job done.

Larry Abramson, NPR News. Washington. Transcript provided by NPR, Copyright NPR.

Larry Abramson is NPR's National Security Correspondent. He covers the Pentagon, as well as issues relating to the thousands of vets returning home from the wars in Afghanistan and Iraq.