Better Late Than Never

By CBS News legal analyst Andrew Cohen



In a series of well-coordinated and well-publicized election-year maneuvers Wednesday, the Bush administration deftly and dramatically transferred to more favorable ground the legal and political fight over the war on terrorism.

First, the White House brought in from the cold — from secret CIA prisons — 14 of the highest-level terror detainees. Next, it shipped the men to Guantanamo Bay, Cuba where they join the hundreds of other detainees awaiting trial there. And, finally, the administration and military officials proposed a series of serious legal compromises that would give all the tribunal defendants, including the newly transferred terror muckety-mucks, more legal rights than ever before.

The executive branch's stunning triple play doesn't resolve the matter right away. Congress still has to consent to the new tribunal rules proposed by the administration. The Supreme Court might again have to get involved to broker any disputes between the other branches as well as any objections raised by any of the detainees.

But the White House, in the span of just a few hours, has taken much of the steam out of the ears of its legal and political opponents. It has undercut many of the most serious arguments against the administration's treatment of terror prisoners. It has, you might say, done much of what its adversaries had demanded that it do. That's why today is probably the single most important day in the five-year history of the legal battle against terrorism.

The government's transfer of men like Khalid Sheik Mohammed and Ramzi Binalshibh to military control at Gitmo means that the men are markedly closer to facing justice than they were just a few days ago. It means that the family members of 9/11 victims and survivors of the attacks, who long have waited for a real 9/11 trial (and who were disappointed by the sham 9/11 trial of Zacarias Moussaoui earlier this year), now finally can allow themselves to imagine American prosecutors facing down Binalshibh and Mohammed in a military courtroom.

No wonder the White House's political operatives made sure that there were 9/11 families in the audience Wednesday when the president delivered his big speech.

In addition to solving many of the administration's legal problems over the fate of the detainees, the White House's moves also place enormous pressure upon the Congress to agree to the proposed compromise and to authorize the tribunal procedures the executive branch wants to see put into place. Now the White House can blame any sort of delay in the prosecution of the "New Gang of 14" upon the legislative branch if Congress doesn't act quickly enough.

It will be fascinating to see how the Senate, especially, reacts to the brave new world that has just been layered over this old and crusty topic. There are still serious concerns about the administration's proposal — and serious objections by important senators, especially over the level of involvement the terror detainees may have in their own defense.

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