Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
The past few days have likely given earnest critics of the Bush Administration's legal war on terror a much better understanding of what Germans must have felt during the fall of the Berlin Wall.
One by one, hour by hour, many of the most odious legal policies of our post-9/11 world have tumbled like rubble down into history. An official and explicit end to the torture of terror suspects. Shuttering the Central Intelligence Agency's dark, secret prisons. A serious and on-the-record commitment to empty within a year the terror prison at Guantanamo Bay. And a review of the case of Ali Al-Marri, a legal resident of the States, who has been held without charges for six years as a suspected Al Qaeda sleeper terrorist.
With the strokes of just a few pens by President Barack Obama, and even before all of the inaugural revelers had made it back home to their towns and villages, the new administration sharply announced that the war on terror will be fought differently than it has been since the Twin Towers fell - at least in court and in the treatment of the men and women we capture as suspected terrorists or "enemy combatants." What a time for celebration it must be for the thousands of lawyers and other advocates who fought for seven long years for the Constitution and the rule of law and the Geneva Conventions.
But it's way too early for civil libertarians to get all lathered up and declare "Mission Accomplished." There is a vast gulf between the absence of bad policies, which thankfully we now have, and the presence of good policies, which we have not yet received. The former may clean our consciences a bit - finally, no more Gitmo! - but it's the latter that are going to define how the Obama Administration is viewed here at home and around the world. Just because a nation finally figures out that it is deep in the woods doesn't guarantee that it can finds its way out.
The reversal on torture is the simplest. Whether our secret agents still do it or not, as they have in the past, is one thing. But at least the technical denouncement of it on Wednesday gives us precisely the same diplomatic cover we had for centuries before 9/11 to engage in such dirty tricks. The most significant component of this change is that the Obama Administration has taken pains to explain that techniques like waterboarding aren't just bad because they are immoral and technically illegal but because they often don't work in generating accurate information. Science wins out again over superstition in the new regime.
The al-Marri case is only a bit more difficult. If the Bush Administration could prosecute in federal civilian court men like Richard Reid (the shoe-bomber) and Zacarias Moussaoui (the zany figure who got fired from al Qaeda before 9/11) and Jose Padilla (the guy who wasn't a dirty bomber), then surely it can prosecute al-Marri if it has competent evidence to do so. And if the evidence isn't so competent - for example because it was obtained by torture - well, then, the time has come to recognize that as well.
The closing of the Gitmo base is by far the most difficult part of the new dynamic. If it were easy to close the prison, President Bush would have done so. And, indeed, to its credit, the previous administrators did reduce by many hundreds the number of men once locked up on that island. The hardest cases, naturally, they left for their successors, who now face serious questions about three distinct groups of prisoners. You have the least-threatening men whom the U.S. has wanted for years to simply release, except that no country will take them. You have slightly more menacing men who, like Padilla and Reid and Moussaoui, could be tried in our civilian courts. And you have the true "worst of the worst" - people like Khalid Sheik Mohammed and Ramzi Binalshibh.
If the Obama Administration is going to be able to shutter the prison at Gitmo, it is going to have to give other nations of the world the hard sell (hello there, Secretary of State Clinton) on the first group of men. Perhaps the fact that George W. Bush is no longer president, alone, will convince some of these countries to take some of those low-risk detainees off our hands. As for the second group, the Obama Administration should be able to generate a set of uniform standards that determine when and how these detainees can be tried as federal criminal defendants like other post-9/11 terrorists before them. No one needs to reinvent any wheels for this group. All that has been missing has been the will to prosecute them; that will is now in power.
But what in the world can and should the White House do about Mohammed and Binalshibh and the other truly bad actors? If the current trials at Gitmo continue, the government runs the risk of a reversal on appeal before the federal courts. Start new trials with different rules? Fair enough. But where are the new rules going to come from and can they be implemented in time to meet the Administration's Gitmo deadline? Or should America simply scrap the failed military commission paradigm and create a new "national security" justice system attuned to dealing with cases involving classified information and harsh interrogation tactics?
During his speech on Tuesday, when President Obama decried the "false choice between national security and our ideals," no doubt he was thinking of these precise questions. It's a challenge heightened by lame lawmakers and other politicians whose only contributions to the cause of justice and finality here have been to declare: "don't bring these suspects into my backyard!" Memo to these short-sighted, unhelpful cranks: there are plenty of terrorists already languishing in American prisons and the world hasn't end. Where do they think Reid and Moussaoui actually are these days?
Although the Obama Administration deserves credit for moving so quickly and decisively, it's always easier to tear down than to build up. The next few months will determine the structure of the nation's new anti-terror policies and the challenges in coming up with good, honest, moral ones is as daunting as the rewards are rich.
By Andrew Cohen