The Democrats And Terror

(CBS)
Lawyer Andrew Cohen analyzes legal affairs for CBS News and CBSNews.com.
Six years after the Twin Towers fell, Congressional Democrats apparently still haven't gotten the memo that it is possible to be considered "tough" on terrorism while still protecting the rest of us from unconstitutional surveillance (and other extralegal actions) by executive branch officials.

The latest example of this poll-driven fear factor occurs Tuesday when House Democrats offer up legislation that would, according to a storyin today's New York Times, "maintain for several years the type of broad blanket authority for National Security Agency eavesdropping." Yes, the House bill would "require a more active role" by the special Foreign Intelligence Surveillance Act Court, but a Senate version, reports the Times, would hew even more closely to the current White House plan.

This governance-by-acquiescence by the Democrats would be one thing if the Bush administration could point with pride since 9/11 to a series of smart, measured and constitutional anti-terror measures. But the executive branch cannot make such a claim. First, there was Alberto Gonzales' torture memo, which begat Abu Ghraib. Then there was the revelation about the warrantless spy program—which most legal observers still consider to be unconstitutional and a violation of federal law.

Then we learned about secret prisons and extraordinary rendition—the process by which individuals are essentially kidnapped and taken to countries with less stringent prohibitions against torture. Then there was the revelation—by the Justice Department, no less-- that the Federal Bureau of Investigation had on at least two occasions misused its power to eavesdrop. And, to complete the circle, we learned just last week that the so-called ban upon torture wasn't much of a ban at all thanks to yet another "secret" memo that had been circulated within the executive branch.

With such ignoble precedent, then, you would think that Congressional Democrats would be able to stand up to voters and declare that they are no longer willing to countenance the White House's shoot-first-ask-questions-later approach to terror law. You would think the Dems would be able to use the issue of the executive branch's misfeasance in the legal fight against terrorism as yet another way to distinguish themselves from their rivals going into the campaign season. And you would think such a stand would be met with a receptive response from voters.

It ain't gonna happen. The Democrats are willing to cave in again—even the House bill doesn't go far enough in ensuring proper oversight-- because they fear their Republican counterparts will roll around the country this upcoming election season calling them patsies in the war on terror. Karl Rove may be long gone from the White House but his cynical strategy—if you don't go along with the program you are patsie or, worse, a traitor—lives on in the minds of Democratic challengers if not also in their polls.

You are a patsie if you believe that the federal judiciary should have an increased oversight role in terror surveillance. You are a patsie if you believe that we should not be torturing terror detainees. You are a patsie if you believe that the Guantanamo Bay suspects ought to be given a reasonably fair trial before they are convicted. You are a patsie if you believe that the telecommunications companies shouldn't be given retroactive immunity for their role in sharing with government officials private information about their clients.

If there were no middle ground on these issues you might be able to accept the Democrats' position as the best choice between two evils. But there is plenty of middle ground. More judicial oversight. More Congressional oversight. A revamped military commissions process to try the Gitmo men. It's not rocket science or spy v. spy. It's politics—alas, as usual.


  • Andrew Cohen

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