Opportunities Squandered Since 9/11

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

The legality of the National Security Agency's domestic spy program is in court and up in the air, challenged and perhaps headed for a Supreme Court showdown. The administration's latest plan - Plan C for those of you scoring at home - to try the Guantanamo Bay detainees through the use of military tribunals remains on hold because of its legal infirmities. Portions of the USA Patriot Act, revised, were struck down last week by a federal judge. It could take years more for that dispute to be resolved.

Good ideas, like establishing a wholly separate legal system to handle sensitive terror-related cases and causes, have been shot down without a fair hearing in the court of public opinion (never mind inside the White House). Terrible ideas, like allowing agents from the Federal Bureau of Investigation to determine when the private records of consumers can be poached from telecommunications companies, have rocketed through the corridors of power to become policy.

The Supreme Court, in 2004 and 2006, has had to intercede to tell the other two branches that they had zealously overextended themselves in violation of federal law and the Constitution. But the justices failed on both of those occasions to explicitly and positively shape the outcome of the profound debate over the extent to which the president may assert his powers as commander-in-chief. All they did was politely tell the White House what it could not do. And that was before Justice Sandra Day O'Connor, the pragmatist, was replaced by Justice Samuel A. Alito, Jr., a doctrinal supporter of the controversial "unitary executive theory" of presidential authority.

Lower federal judges, for their part, granted extraordinary deference to White House officials in the years immediately following the attacks. This occurred even when those officials came into court and argued the following: who are you going to believe when it comes to assertions of national security, me or your own eyes? It took years for the federal judiciary to stand up to the executive branch and begin to question - never mind actively reject - the bold and broad assertions made by law enforcement officials. And, even now, there are plenty of federal judges who remain eager to be on board with an administration that has exaggerated its legal positions over and over again under oath.

Meanwhile, when controlled by the Republicans, the legislators in Congress bowed down like ostriches before President George W. Bush. It was a complete abdication of their oversight functions. The USA Patriot Act, the first version, was enacted in the fall of 2001 without so much as a quick read by most lawmakers. Its revised edition, after much reflection, is only marginally better. And the 2006 Military Commissions Act, the latest formal effort by the Congress to interject itself into the legal fight against terror, was instead just another lawsuit-inducing sell-out to the Pentagon.

Under the Democrats, however, Capitol Hill has not become markedly more courageous or proficient in ensuring an appropriate balance between the branches and a reasonable and measured approach to legal doctrine against terrorism. They have time to investigate many examples of odious conduct on the part of White House officials. But they have little time, apparently, to push to change the Commissions Act, or the Foreign Intelligence Surveillance law, or to interject themselves assertively into the debate over the NSA surveillance program. This gotcha strategy may be productive politics, but it surely is not good governance six years on.

And the executive branch? Instead of seeking out consensus among its eager and willing co-participants in government - instead of convening, for example, a terror law summit - it has used the terror attacks to aggressively expand its own powers to the detriment of the other two branches. From the revolutionary use of presidential "signing statements" to try to change the meaning of federal laws, to the use of "extraordinary renditions" to steal terror suspects away to secret prisons, the White House has spent the past six years avoiding legal and political partnerships.

The attitude is perhaps best summed up by David Addington, one of the "true believers" inside the White House. The current chief of staff to Vice President Dick Cheney reportedly has said: "We're going to push and push and push [for greater executive branch power] until some larger force makes us stop." Given this approach, the results have been entirely predictable. For every success in the legal front against terrorism, there have been setbacks and delays. When you treat your friends - in Congress and the courts - like enemies pretty soon they become so.

The Justice Department? Since 9/11 it has been led by one man (John Ashcroft) who gave us the "20th hijacker" who wasn't and then later the "dirty bomber" who wasn't, and by another (Alberto Gonzales) who is among the worst in history. Instead of acting as an intra-branch check on the worst excesses of craven ideologues like Addington and John C. Yoo, Ashcroft and Gonzales and company just went along with the program, whatever the program happened to be and regardless of the legal soundness of the policies offered up. Loosen the reins on torture? Be our guest. Eavesdrop without a warrant, in violation of the Foreign Intelligence Surveillance Act? Go for it.

No one believes that the legal challenges presented by the aftermath of 9/11 were going to be solved quickly and easily. No one suggests that the dramatic changes our laws needed were to come without stark sacrifice. But if the past 2192 days have taught us anything, it is that our leaders, all of them, have made it far worse for themselves, and for us, by choosing confrontation over collaboration in the creation of a new legal order to best combat terrorism. Opportunities squandered; time wasted; avoidable conflicts blossomed. These are just more of the truly sad legacies of the saddest day of them all.
By Andrew Cohen