By CBS News legal analyst Andrew Cohen
Five years after the twin towers fell, and with the legal war on terror still a work in progress, the law's journey from September 11, 2001 to today can be marked by only a few handfuls of milestones. Here they are, in chronological order, showing both the sweep of change and the reality that we still have a long way to go. October 26, 2001. The day of the passage of the first USA Patriot Act, a sweeping piece of anti-terror legislation that was approved by the Senate and the House of Representatives even as recovery efforts at the World Trade Center and Pentagon were underway. The law, which passed with barely any debate and only a little forethought, dramatically increased the power of law enforcement officials to track suspected terrorists, increased penalties for terror-related crimes, and altered in measurable ways for all Americans the balance between liberty and security. The USA Patriot Act has since been extended and revised and some of its key provisions are still under judicial review. December 11, 2001. Three months to the day after the twin towers fell, federal prosecutors indicted the mentally unstable Zacarias Moussaoui as a conspirator in the attacks on America, even though the lowly al Qaeda operative was sitting in a Minnesota jail on 9/11. It would take over four years – and countless embarrassments to the government – before he would get to trial in Virginia. And by the time he did, it was clear that he was not the "20th hijacker" or that he even knew much of anything about the terror plot. He is now serving a life sentence in a maximum-security federal prison, a living example of the government's stubborn insistence on trying to link a man to a crime he did not commit. January 18, 2002. The day that President Bush signed an executive order excluding captured al Qaeda and Taliban soldiers from the protections of the Geneva Conventions. This decision actually preceded by seven days the now-famous "torture" memo written by then-White House Counsel Alberto Gonzales, who is now the nation's top lawyer. The abuses of prisoners at Abu Ghraib and at other places around the world by U.S. personnel can be traced to this order, and the Bush administration's concomitant policy of employing aggressive interrogation methods in order to extract information from captured suspects. Last week, however, the U.S. military conceded that such "alternative procedures" did not work and would be abandoned as official Defense Department policy, even as President Bush told the nation that he intends to continue to allow CIA and other covert operatives to continue to employ the practices.
June 10, 2002. The day that then-Attorney General John Ashcroft announced the arrest of Jose Padilla as a "dirty bomb" suspect. Ashcroft dramatically interrupted a trip to Russia to beam back to us via satellite news of Padilla's arrest. But it quickly became clear that Padilla was nowhere near the threat the attorney general had made him out to be. Nonetheless, despite being a U.S. citizen, and in spite of a lack of evidence against him, Padilla was quickly designated by President Bush as an "enemy combatant" and held by our military for years, incommunicado and without facing charges. Last year, reluctantly, after a series of adverse court rulings, the White House quickly transferred Padilla to civilian control, where he now faces relatively minor charges in Florida. So call this day the day the government began to lose its credibility when accusing terror suspects of crimes.
July 15, 2002. The day that John Walker Lindh, the so-called "American Taliban," pleaded guilty in a Virginia federal court to aiding the Taliban in its fight against the Northern Alliance. An early "face of terror" stateside following 9/11, Lindh wasn't much help to the Taliban. When discovered by American troops, Lindh was in a prison in Afghanistan in December 2001. He never fired a shot in anger at American troops or anyone else. Yet he was overcharged by overzealous prosecutors and after a series of adverse rulings by his judge, Lindh decided to take a plea. He was later sentenced to 20 years in prison, a sentence that today seems outrageously harsh given the length of other sentences handed out to terror suspects who were accused of similar or even greater crimes.
January 30, 2003. The day U.S. District Judge William G. Young sentenced to life in prison Richard Reid, the "shoe bomber" who failed to blow up an airplane when he couldn't light his shoe on fire. Judge Young's comments to Reid, after Reid pledged his fealty to Osama Bin Laden in court, still stand as some of the most eloquent in explaining how many Americans feel about al Qaeda and both its leaders and followers. Judge Young told Reid:
"You are not an enemy combatant. You are a terrorist. You are not a soldier in any war. You are a terrorist. To give you that reference, to call you a soldier gives you far too much stature. Whether it is the officers of government who do it or your attorney who does it, or that happens to be your view, you are a terrorist. And we do not negotiate with terrorists. We do not treat with terrorists. We do not sign documents with terrorists. We hunt them down one by one and bring them to justice. So war talk is way out of line in this court. You're a big fellow. But you're not that big. You're no warrior. I know warriors. You are a terrorist. A species of criminal guilty of multiple attempted murders. " June 28, 2004. The day the United States Supreme Court issued its decision in Hamdi v. Rumsfeld, the first time since the terror attacks on America that the high court had spoken directly about a legal issue raised by the attacks. This is the day that then-Associate Justice Sandra Day O'Connor famously declared that "a state of war is not a blank check" for presidential power. This is the day the court declared that both citizen- and non-citizen terror detainees could challenge in federal court their detention. This ruling set the stage for the Hamdan ruling two years later and marked the first major legal setback in the White House's war on terrorism.
December 16, 2005. The day The New York Times first reported on the existence of the National Security Agency's domestic surveillance program, which involves the secret wiretapping of communications within and without the U.S. without a prior court order. The program, which President Bush had authorized in 2002, represents and end run around both Congress and the Foreign Surveillance Intelligence Act, which had been set up a generation ago to allow in certain circumstances for special surveillance measures. The legal and political debate over the future contours of the NSA program promises to be one of the biggest stories worth following as we enter year six of the war on terror. June 29, 2006. The day the United States Supreme Court rejected the Bush administration's latest efforts to come up with rules governing military tribunals for terror detainees. If there had been any ambiguity about where the high court stood on the war on terror after its Hamdi ruling in 2004, the court's majority in Hamdan came down squarely against the administration's efforts to try detainees without providing them certain fundamental due process rights. Also, the court's majority declared that the nation was bound to treat the detainees under Geneva Conventions' rules. The decision dealt the White House a significant legal and political blow – and made visible for the world the split among governmental branches – and set the stage for last week's big White House announcement about the status of the detainees.
September 6, 2006. The day President Bush announced that some of the most important terror leaders in the world, including 9/11 masterminds Ramzi Binalshibh and Khalid Sheik Mohammed, had been transferred to the U.S. prison at Guantanamo Bay for trial by military tribunal. The president then upped the day's ante by calling upon Congress to agree to the administration's proposed rules to try the men. By bringing the dangerous men in from the cold, the White House placed enormous pressure on the legislative branch to quickly come up with a set of rules that could both satisfy judicial review and also quickly generate the sorts of trials the family members of 9/11 victims have been waiting for in their search to bring al Qaeda leaders to justice.
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