Post 9/11 Law: An Unfinished Journey

Andrew Cohen Analyzes The Legal Progress Made In War On Terror

(CBS) 
Hamdi, initially designated as an "enemy combatant" and put on ice for a few years, was treated differently than John Walker Lindh, the so-called American Taliban, who was immediately prosecuted (and pleaded guilty, alas, prematurely as it turned out) even though both men were picked up fighting with the Taliban overseas.

The only thing consistent about the treatment of these men is that they were treated inconsistently and that is anathema to the concept of equal treatment under the rule of law. The government has defended these disparate treatments by arguing that it must retain the ability to be "flexible" about how to deal with terror suspects, some of whom may be intelligent assets and some of whom may just be regular old thugs.

But even that standard fails the government’s own test, for Moussaoui, who apparently had some connection to some al Qaeda leaders surely was a greater intelligent asset than Hamdi, who was a common soldier (and who, ultimately, was released without ever having to face charges).

Which brings us to the treatment of the prisoners we have captured, or our allies have captured, in the fight. Nowhere was the government’s law-related conduct over the past five years more unproductive and self-defeating than it was in this area.

First, myopic White House officials — including the man who now is America’s top lawyer, U.S. Attorney General Alberto Gonzales — turned 200 years of high ethical and moral conduct by our troops on its head by authorizing, with lawyer-like stealth, the types of interrogation and custodial methods that led directly to the diplomatic disasters that occurred at Abu Ghraib prison in Baghdad and at other spots where shadowy government agents questioned murky terror suspects.

Moreover, the linguistic games our government played with the Geneva Conventions, and the concomitant use of torture (let’s face it, that’s what we did to those top-level al Qaeda thugs), in the end, both angered our allies across the world and ended up providing us with intelligence that our military now says is probably useless.

That our government would have thought this particular strategy would turn out well or even differently itself tells us a lot about the level of desperation and unharnessed optimism that pervaded the hearts and minds of our best and brightest in the days, weeks and months following the terror attacks on America.

Now, finally, within the past year, we can see the pendulum swinging back.

Our military is formally and loudly rejecting torture or things closely connected to it. Our legislators are beginning to make noise about finally finding the backbone they need to reject the excesses of the White House’s plans to try the detainees.

Even federal court judges, who were so agonizingly pliant during the months and years following the attacks, are resuming their vital function of requiring the other two branches to justify their requested changes in the law with facts and argument and not mere declarations.

We have come a long way since a single military official’s affidavit (in the Hamdi case) was enough to justify holding an American citizen, indefinitely, without charges. And yet the looming military trials of men like Ramzi Binalshibh and Khalid Sheik Mohammed promise to generate new legal issues and new challenges to the rule of law as we know it.

If the past five years are notable for a paucity of true 9/11-related trials, the next five promise to be chalk full of them, each providing context and perspective on the shape of the law in this time of terror.

It is impossible to overstate how much the structure of the law has changed — or, more precisely, how much the Bush Administration has tried to change it — since the hijackers struck. The very notion of "checks and balances," the bedrock principle that we teach our children in school, has been challenged by an administration whose one consistent argument in virtually every legal battle since Sept. 11, 2001 has been to declare that the president needs more power to wage war on terrorists and that the other two branches ought to be satisfied with less.

That the system has bent in that direction, but not broken, is a testament not just to the brilliance of the Constitution but to the men and women who have sought to interpret it honestly in the face of enormous public pressure.

Have our laws and the way we interpret them changed? Absolutely. Are we safer today? Probably. Have we paid a price? No doubt.

But the simplest truth is that, five years along, the legal fight against terrorism is still very much an unfinished journey, with some clear skies over some parts of the path and a whole lot of fog covering the rest.

I wonder how much "proof" my fellow correspondents need. Virtually everything this Administrations said or implied about Iraq before invading it [with the notable exception that Saddam Hussein was a not a nice man, which we already knew]was false. Period.

At several times in our years long Iran adventure, the Vice President has had the gall to say in public "the insurgency is in its last theroes" when every publicly available piece of evidence contradicted him. If he is not a liar then he is a world class fool. I don't think he is a fool.

When it was convenient, [ie, when they frittered away all hope of catching him] the President and his merry men told us "Osama Bin Laden did not matter". But whenever it is politically convenient to try to frighten us into voting Republican, all of a sudden bringing him to justice matters very much.

When it sounded good and levelheaded, the President told us that we were not in a war with Islam. Now, suddenly, we have the rhetorical spectre of "Islamic fascists" [ie, every Muslim who disagrees with any of our policies] to deal with.

When it sounded noble and maganimous, we were "spreading democracy" in the Middle East, with pictures of women in headscarves flashing purple fingers everywhere. What of "democratic" Lebanon now? And the Administration is busy trying to lie away the fact that the Israelis got a bloody nose, which the Israelis themselves, cold realists as they are, know to be the case.

[redi4510]

9/11 would not have happend if our air line pilots carried a side arm. Israil air line pilots have always been armed and have never been hijacked. There is no reason why our air line pilots would be any more dangerous than the Israil pilots

[sliderule3]

Hey Mr. *** Meyer,

You have done your news organization a great diservice by calling the President a liar (without proof). This is just another one of your left wing comments, that do a great diservice to your fellow journalists. You should be fired and now!!! Then you can sit at home and stir in your own left wing liberal juices without the public having to hear you!