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"prove a negative" and cite specific terrorist acts that
had been disrupted. But he said that department officials
believed that the detentions had "incapacitated and
disrupted some ongoing terrorist plans." 

Two federal judges in New York have differed sharply on
whether the government may jail material witnesses while
they wait to testify in grand jury investigations. In
Virginia, a federal judge ordered the government to allow
Mr. Hamdi to consult a lawyer. 

"I look at the federal district court judges and just cheer
them on, because they are doing exactly what an independent
judiciary should be doing," said Jane E. Kirtley, a
professor at the University of Minnesota and former
executive director for the Reporters Committee for Freedom
of the Press. "It's not hostile or adversarial; it's simply
skeptical." 

These lower-court decisions have for the most part not yet
been tested on appeal, and there is reason to think that
appeals courts and the Supreme Court will prove more
sympathetic to the government's tactics and arguments. 

The federal appeals court in Richmond, Va., for instance,
reversed the decision to allow Mr. Hamdi to talk to a
lawyer and ordered the lower court judge to consider
additional evidence and arguments. 

But even the appeals court seemed torn, and it rejected the
government's sweeping argument that the courts have no role
in reviewing the government's designation of an American
citizen as an enemy combatant. 

The detention issues also carry an emotional punch. Many of
the Arabs and Muslims caught in the government dragnet were
cabdrivers, construction workers or other types of
laborers, and some spent up to seven months in jail before
being cleared of terrorism ties and deported or released. 

Last month, at a conference held by a federal appeals
court, Warren Christopher, the secretary of state in the
Clinton administration, snapped at Viet Dinh, an assistant
attorney general under President Bush, saying that the
administration's refusal to identify the people it had
detained reminded him of the "disappeareds" in Argentina. 

"I'll never forget going to Argentina and seeing the
mothers marching in the streets asking for the names of
those being held by the government," Mr. Christopher said.
"We must be very careful in this country about taking
people into custody without revealing their names." 

Mr. Dinh, who came to the United States as a refugee from
Vietnam, recalled his family's anguish when his father was
taken away in 1975 for "re-education." In contrast, he
said, those detained by the United States were not being
secretly held but were allowed to go to the press and seek
lawyers. 

"These are not incognito detentions," he said. "The only
thing we will not do is provide a road map for the
investigations." 

According to the Justice Department, 752 of the more than
1,200 people detained since Sept. 11 were held on
immigration charges. Officials said recently that 81
remained in detention. Court papers indicate there were
about two dozen material witnesses, while most of the other
detainees were held on various state and federal criminal
charges. 

President Bush also has announced plans to try suspected
foreign terrorists before military tribunals, though no
such charges have been brought yet. 

Last month, William G. Young, the federal judge presiding
in Boston over the criminal case against Richard C. Reid, a
British citizen accused of trying to detonate a bomb in his
shoe on a trans-Atlantic flight, noted that the very
establishment of those tribunals "has the effect of
diminishing the American jury, once the central feature of
American justice." 

Judge Young, who was appointed by President Ronald Reagan,
added: "This is the most profound shift in our legal
institutions in my lifetime and - most remarkable of all -
it has taken place without engaging any broad public
interest whatsoever." 

Jack Goldsmith and Cass R. Sunstein, professors at the
University of Chicago Law School, have written that the
Bush administration's policies are a minimal challenge to
civil liberties especially compared with changes during the
times of Abraham Lincoln and Franklin D. Roosevelt. What
has changed, they say, is a greater sensitivity to civil
liberties and a vast increase in mistrust of government. 

The Secrecy 

U.S. Says Hearings 
Are Not Trials 

Ten days
after last September's attacks, Michael J. Creppy, the
nation's chief immigration judge, quietly issued sweeping
instructions to hundreds of judges for what would turn out
to be more than 600 "special interest" immigration cases. 

"Each of these cases is to be heard separately from all
other cases on the docket," Judge Creppy wrote. "The
courtroom must be closed for these cases - no visitors, no
family, and no press." 

"This restriction," he continued, "includes confirming or
denying whether such a case is on the docket." 

The government has never formally explained how it decided
which visa violators would be singled out for this
extraordinary process, and it has insisted that the
designations could not be reviewed by the courts.