Justice In A Time Of Terror

Andrew Cohen: Despite Past Failures In Legal War On Terror, It's Not Too Late To Get Things Right

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

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It’s far too late for the current Republican administration or the current Democrat-controlled Congress to redeem themselves in the legal war on terrorism. Too many men have been tortured; too many Americans have been spied upon without warrant; too many constitutional principles have been scuttled; too many precedents breached; too many smart ideas and reasonable compromises left along the legislative trial. There has been entirely too much of John Yoo and David Addington and not nearly enough of Jack Goldsmith and James Comey.

Hundreds of men - some terrorists, some not - still languish un-prosecuted in detention at Guantanamo Bay because the Administration stubbornly has refused to compromise over tribunal procedures. Warrantless domestic surveillance remains mired in controversy and legal illegitimacy. The Justices are about to announce their third detainee ruling on terror law since the Twin Towers fell and few believe the Court has the motivation or the votes to issue, finally, any sort of declarative judgment.

But the next president of the United States, whoever he or she may be, and the next Congress, however it is constituted, will have an opportunity to steer a more sensible and productive path. Perhaps the only “good” news about the current leadership’s shameful failure to formulate a terror-law plan - one that is constitutionally proper and publicly acceptable - is that the vacuum has drawn in several good ideas from outside the corridors of power.

Take journalist and newly-minted academician Ben Wittes. He’s just written the book I wanted to write. But instead of being bitter, I’m relieved. Although I don’t agree with many of his conclusions, Wittes’ “Law and the Long War” is by open lengths the most useful post-9/11 terror law book yet written. It posits, earnestly, that America will be far better off, and more capable of tackling the terrorists, only when the Congress takes a proactive role in creating terror law rules, when the President of the United States is willing to accept the legislative branch as a partner in the policy-making process, and when the courts have a more pre-defined role in the mix.

Continuing the current unworkable (and un-working) paradigm, Wittes argues, where the executive branch floods into the open space left by legislative inaction only to be checked by the judicial branch, will only result in more uncertainty as the war against terrorism approaches its first decade. It’s easy, of course, to say that the politicians have to do better. But Wittes offers some specific ideas that should find their way into the next President’s campaign platform if not his or her Inaugural Address.

For example, Wittes wants to see the legislative creation of a separate “administrative detention” system which would alleviate the need for the messy detainee situation still unfolding down in Cuba. The system - a cross between our civilian criminal courts and the military tribunals which have yet to fire fully since 9/11 - would function in Wittes’ view as a sort of “National Security Court” (we already have a special Foreign Intelligence Surveillance Court, remember) or something akin to an administrative law body. He also wants more stringent rules against excessive interrogations with explicit exceptions in extreme cases (the ticking time bomb in Times Square, for example).

And, perhaps most controversially, in the arena of domestic surveillance, Wittes wants Congress to "strip away the roadblocks to constructive, real-time government access to routine transactional data - credit card and other financial transactions and telecommunications addressing information in particular" while creating a "what-happens-in-counterterrorism-stays-in-counterterrorism" limit to executive branch power over our private transactions. Mountains may move before this occurs. But Wittes is right that we ought to try.

Now let’s turn to David Cole, the Georgetown University Law professor who has done more to help educate us all about the legal war on terror than any man alive. Cole has taught on the subject, written about it, and gotten his hands dirty representing individuals and causes conflicting with the government’s interest. In an important review titled “The Brits Do it Better” in the June 12th New York Review of Books, Cole concludes that the “English have learned from their mistakes in fighting terrorism. The question for the United States can learn from ours.” Unlike our British cousins, Cole suggests, America could use a lesson in subtlety in the war on terror.

That Wittes and Cole have reached the same fertile ground at the same time despite traveling different paths is no coincidence. Most anyone who has closely followed the arch of the government’s legal response to the terror attacks on America concedes (with varying degrees of defensiveness, anger or disgust) that the story is one of lost opportunities, misguided priorities, political cowardice, and bad intentions. Indeed, the report issued last week by the Justice Department’s Office of Inspector General confirmed for history the dysfunction within the various departments of the executive branch when it comes to the creation of terror law policy.

Come Jan. 20, 2009, all of this nonsense, this catastrophically damaging nonsense, must end. The new President must cooperate fully and fairly with the new Congress. The new Congress must act courageously, decisively, proactively and comprehensively. And the federal judiciary must intercede sparingly yet with far more clarity than we’ve seen from the Supreme Court since 2001. After seven years of chaos and embarrassment - and just a single detainee tried down at Guantanamo Bay - that shouldn’t be too much to ask.

[it_oldtimer]

What terror? I have not experienced any terror that I''m aware of, nor am I the least bit worried that I will experience genuine terror in the future.

It''s all just right-wing fear-mongering in support of an otherwise unsupportable political agenda.

[msgtsteve]

DEMAND WAR CRIMES for all democommies. Put them all up against the wall for cowardice!

%u201CContemplate the mangled bodies of your countrymen, and then say ''what should be the reward of such sacrifices?'' Bid us and our posterity bow the knee, supplicate the friendship and plough, and sow, and reap, to glut the avarice of the men who have let loose on us the dogs of war to riot in our blood and hunt us from the face of the earth? If ye love wealth better than liberty, the tranquility of servitude than the animated contest of freedom, go from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains sit lightly upon you, and may posterity forget that you were our countrymen!%u201D - Samuel Adams

nough said deomcommies
Seig hillary

[msgtsteve]

Yeah just the republicans are making money off politics, so just where did the clintons millions come from?
Seig hillary!

[msgtsteve]

What the democommies want is to just go home and everything will be alright. VERY TRUE!! I will see you at the mosque, make sure you wear your burka!
Seig hillary!

[bluestardad]

REPIGS MAKINE MONEY OFF IRAQ!

By Aram Roston
Investigative producer
NBC News
updated 6:32 a.m. ET, Wed., May. 28, 2008


Aram Roston
Investigative producer


A little-noticed civil lawsuit in Florida is shining a light on an unusual but hugely profitable Pentagon contract to ship millions of gallons of aviation fuel to U.S. bases in Iraq through the kingdom of Jordan.

The deal involves a cast of influential characters, including the king of Jordan%u2019s brother-in-law, who is suing Harry Sargeant III, a top Florida-based fundraiser for Sen. John McCain''s presidential bid.

Sargeant is a Florida businessman and former Marine Corps pilot hailed by the McCain campaign as a "Trailblazer" for raising $100,000 or more in political donations. Through a company called International Oil Trading Co., or IOTC, Sargeant and a partner have a lucrative contract worth hundreds of millions of dollars per year to supply American military forces in Iraq with fuel, especially aviation fuel. The firm ships the fuel to Jordan and then trucks it across the border, where U.S. forces escort the convoys to air bases.

[bluestardad]

DEMAND IRAQ WAR CRIMES TRIALS!

AMERICA STAND UP OR SHUT UP!

[noloyalisti]

Are we going to prosecute the American terrorists who started and continue to wage the wars of terror in Asia?

[steve668702]

CBS please find a legal analyst who deals in facts instead of liberal advocacy. His assertation that too many have been tortured is not based on any facts in evidence. There are hundreds if not thousands of people who could comment on this subject however he cherry picks 2 people who come to the same conclusion. This is officially the last piece written by Andrew Cohen I will read. I don''t expect journalism from him but at least balance and a look at both points of view. Cohen only has a single point of view and he writes from that point of view ad naseuem. Find someone else PLEASE CBS!!!!!

[sanfelz]

The Bush Administration will never extend legal rights to those it has accused of terrorism. Not this group at the White House, which has continually infringed upon the rights of average Americans while fighting for more privileges and less accountability of big business.

Even Bush''s greatest success, implanting a conservative Supreme Court, will probably lead to limitations on legal abortion and start of a new black market in these procedures.

The clever lawyers in the Bush Administation rationalized more power for the executive branch of government but not the American citizen.

[bluestardad]

START WAR CRIMES TRIALS AGAINST BUSH AND THE MIDDLE EASTERN NEOCONS THAT GOT AMERICA INTO THE IRAQ WAR AND HAVE KEPT AMERICA TIED UP IN THE MIDDLE EAST FOR 65 YEARS!

THEN THE WORLD WILL SEE THAT AMERICA DOES STAND FOR JUSTICE AND HOPE!

DEMAND WAR CRIMES TRIALS NOW!

[feelfree4u]

Andrew Cohen,

RE: "It%u2019s far too late for the current Republican administration or the current Democrat-controlled Congress to redeem themselves in the legal war on terrorism."

For your information, "terrorism" is a tactic, and not only is there no legal mechanism whatsoever to wage a "war" against "terrorism", but only an imbecile would choose to wage a war against it, as the chances for defeating a tactic are zero. This kind of "war" rivals only asinine, self-defeating efforts like the "War on Drugs" for its futility and stupidity.

If you do not understand this basic premise, then you have no business doling out legal analysis.

Try, convict, and sentence the criminal Bush cabal and their collaborators, and "terrorism" will diminish overnight, guaranteed.

FeelFree1

[babooph]

US propaganda system has the video of murder of war prisoners-they cut it & edited ,turning it into a total lie!!I have seen the video[German],before they doctored it up !!That is why the US taliban captive was never on trial - his lawyer had the video !!

[joyous88]

the US Justice Dept and the Dept of Defense, they are

the terrorists, bush is the terrorist, McSame is the

war monger, terrorist.

we should all be ashamed for our country

[scorpio59er]

The U.S. inavasion and destruction of Iraq is an act of terrorism on a massive scale.

Bush, et al, are war criminals, pure and simple.

[it_oldtimer]

The "War on Terror" is a total sham -- it''s just capitalist fear-mongering, plain and simple. It''s a tool to rob us all of our Constitutional rights.

Don''t buy into it; it''s a scam.

[messiahx4eve]

The new age bible sez beware of "Insane" McCain & "Unable" Obama, the new brothers in the Age of Dog & Pony Show Economics. Civil War II is at hand....

[joyous88]

four more of the same crimes vote McBushCain

[joyous88]

with all hope, we can wish that GW Bush and his cabal

will be the last Un-American and criminal President of

the United States of America, we can end the crimes

now by voteing out the republicons, and repudiating

the immoral conservative agenda by voting for Obama

[irliberal]

Want 100 more years of war? Vote for McSame!