Better Late Than Never

By CBS News legal analyst Andrew Cohen

First, the White House brought in from the cold — from secret CIA prisons — 14 of the highest-level terror detainees. Next, it shipped the men to Guantanamo Bay, Cuba where they join the hundreds of other detainees awaiting trial there. And, finally, the administration and military officials proposed a series of serious legal compromises that would give all the tribunal defendants, including the newly transferred terror muckety-mucks, more legal rights than ever before.

The executive branch's stunning triple play doesn't resolve the matter right away. Congress still has to consent to the new tribunal rules proposed by the administration. The Supreme Court might again have to get involved to broker any disputes between the other branches as well as any objections raised by any of the detainees.

But the White House, in the span of just a few hours, has taken much of the steam out of the ears of its legal and political opponents. It has undercut many of the most serious arguments against the administration's treatment of terror prisoners. It has, you might say, done much of what its adversaries had demanded that it do. That's why today is probably the single most important day in the five-year history of the legal battle against terrorism.

The government's transfer of men like Khalid Sheik Mohammed and Ramzi Binalshibh to military control at Gitmo means that the men are markedly closer to facing justice than they were just a few days ago. It means that the family members of 9/11 victims and survivors of the attacks, who long have waited for a real 9/11 trial (and who were disappointed by the sham 9/11 trial of Zacarias Moussaoui earlier this year), now finally can allow themselves to imagine American prosecutors facing down Binalshibh and Mohammed in a military courtroom.

No wonder the White House's political operatives made sure that there were 9/11 families in the audience Wednesday when the president delivered his big speech.

In addition to solving many of the administration's legal problems over the fate of the detainees, the White House's moves also place enormous pressure upon the Congress to agree to the proposed compromise and to authorize the tribunal procedures the executive branch wants to see put into place. Now the White House can blame any sort of delay in the prosecution of the "New Gang of 14" upon the legislative branch if Congress doesn't act quickly enough.

It will be fascinating to see how the Senate, especially, reacts to the brave new world that has just been layered over this old and crusty topic. There are still serious concerns about the administration's proposal — and serious objections by important senators, especially over the level of involvement the terror detainees may have in their own defense.

But even while he was bending to legal and political pressure, President Bush was telling the world that those secret CIA prisons from whence the New Gang of 14 came are still open for business for any future wave of high-level terror thugs. Mr. Bush wants to keep that option open, say his folks off-camera. He also defended the CIA's dubious interrogation tactics, which most of the rest of the world considers to be torture, as "an alternative set of procedures" that were both legal and necessary.

Now, with the men who suffered through those "alternative set of procedures" transferred to Gitmo and with new no-torture rules apparently in place (at least for now), the fight eases a bit over whether and to what extent the United States sanctions or has sanctioned torture.

Don't look for Mohammed or Binalshibh to go to trial soon. Even if Congress were to authorize the tribunal procedures "as is" today, there would be a series of court challenges to determine whether those procedures meet the standards set forth earlier this year by the Supreme Court when it declared the old rules insufficient. Those court challenges likely will take some time. But with Congress on board and the big-shot terror leaders only a few steps away from a courtroom in Cuba, the justices will be far more receptive to the procedures than they were before.

We still may be a year or so away from the start of any Gitmo trials, but that's many years closer to starting than we were just a few days ago. After nearly five years of waiting, that's called progress.

The only discordant note on a day of bold strokes by an administration that has failed lately to paint with any sort of precision came when the President repeated the exaggeration (some call it a lie) that there already exist at Gitmo hundreds of dangerous terrorists. This is simply not true and the administration knows it. How? Because our military officials themselves have compiled records at the prison camp that demonstrate beyond any doubt that the vast majority of prisoners held there are not al Qaeda members or even terrorists of any other sort.

The news the President delivered today was striking enough without the hype about the detainees currently on hand at Gitmo. It was positive enough without having to lamely justify why so many of those detainees haven't yet been set free.

So today becomes the first day of the rest of the lives of Binalshibh, Mohammed and the dozen other newly-minted Gitmo detainees. They are probably delighted to be out of whatever rat hole the CIA had kept them in for the past few years, and they are probably wondering what is next for them. The answer is: a lot of waiting around for legislative and judicial branches of government to figure out how to digest and process what the executive branch has just accomplished.

But their day in court now is almost guaranteed to come sooner rather than later and to come at all after so much doubt and speculation. It's not for them that this is a big deal. They are doomed anyway. It's for the tens of thousands of people who almost five years ago to the day were swept up into the maelstrom of America's worst moments.

After so many bad days, and so many more to come, these poor people deserve to know that their idea of justice is on its way. And it is.

Better late than never.