THE PAST YEAR saw a continuing debate over how sweeping the government's powers to fight terrorism ought to be. The fight stretched from the scope of surveillance authority, to the power to detain citizens and immigrants, to the government's ability to keep information secret. And yet the debate has taken on a frustrating character. The administration too often acts as though there is no useful discussion to be had -- as though it is merely seeking isolated technical changes and the anxiety many people feel reflects weakness in the face of evil. Civil libertarians, meanwhile, describe each proposed change as though the sky were falling. Lost has been a sense of the big picture: what the stakes really are as the government's counterterrorism powers grow.

The broad danger, in our view, is that a kind of alternative legal system has come into existence for an ill-defined category of offenses involving national security. For suspected terrorists, the government has its choice of the surveillance regularly used for criminal suspects or the less-regulated regime designed for foreign intelligence. It can try suspects in courts or in military tribunals or -- if it chooses to designate them as enemy fighters -- not try them at all. It can give them lawyers or deny them lawyers and can, if it chooses, monitor lawyer-client communications. While the government makes a case for each of these authorities (for some more convincingly than for others), the environment they create cumulatively is troubling. This is particularly true because the war they are intended for may prove a near-permanent state of affairs, and victory may be difficult to recognize. It is an environment in which the president has nearly unbridled authority to pick the legal regime most advantageous at every step of an investigation or a proceeding against an individual -- in which a person can be plucked out of the protections of the Bill of Rights at the whim of the executive branch of government.

The war on terrorism has highlighted the limits of the traditional criminal justice system for taking on an international terrorist group such as al Qaeda. But without more clearly defined boundaries and restrictions, this alternative legal scheme -- which offers the great attraction for the government of lower standards, less oversight and less interference from pesky defense lawyers -- could easily invade the traditional system and undermine its protections. Drug cartels, for example, pose a national security threat in some sense. What principle will stop the executive branch from treating U.S. citizens employed by a Colombian cartel with the flexibility it now grants itself for members of al Qaeda?

With Congress so far unwilling to get involved in defining reasoned boundaries, the courts have been the only realistic check on the Bush administration's unilateral assertions of power. This is a far-too-passive means of making law in such a fateful area. In the American system, the national legislature is primarily responsible for determining what the law should be. If, through inaction, it effectively cedes that power to the president, the new rules will reflect the presidency's interests at the expense of all others. That's a dangerous prospect for civil liberties and, in the long run, for effective counterterrorism as well.

© 2002 The Washington Post Company