Justice In A Time Of Terror

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

The Hayats — father was an ice cream truck driver in Lodi, Calif., before the feds took him away — were fingered by a man named Nassim Kahn, who with a hidden tape recorder was sent off to frame them (after failing to frame local imams at a mosque). The Hayats, the story goes, did not incriminate themselves in their conversations with Kahn but were nevertheless arrested, accused of running an al Qaeda terrorist cell, and interrogated in a way that generated confessions that they had once attended a terror training camp. According to the expert interviewed by "Frontline," Umer, the father, did not "confess" until he saw his son's "confession" and his son didn't confess so much as repeat the "confessions" that the interrogators had suggested to him.

Umer was lucky. His jury could not agree upon a verdict and he was ultimately released. His son, Hamid, was not so lucky. He was convicted (he had, indeed, gone to Pakistan, for his wedding and honeymoon and to care for a relative) of lying to the feds and of providing "material support" to a terrorist organization. He faces decades in a federal prison. But the key to the "Frontline" piece may also be the key to Hamid's exit from his jail cell. The man who prosecuted the case, U.S. Attorney McGregor Scott, told PBS that there was and is no al Qaeda terror cell in Lodi. If this is true, it should mean a reversal of Hamid's conviction now that his case is on appeal.

If the story of a conflated case against the Hayats is true, it also follows neatly into a five-year groove of conduct by government officials that ought to shock the conscience and make us cringe when we consider that we are about to give the executive branch (in the form of the just-passed new detainee legislation) more unfettered power to fight terrorism here at home. If past is prologue, and if this is how our counter-terrorism forces are going to use the new power Congress is about to give them, we may well be headed toward a dark era in legal history where our constitutional rights and individual liberties are routinely violated without consequences to the offenders or recourse for the offended.

Indeed, the "Frontline" documentary Tuesday night made a compelling case — one dramatically larger than the story of the Hayats — that the government has constantly oversold and overreached in its counter-terrorism efforts here in America. Time and again, "Frontline" contends, our government has made grievous errors of judgment and execution in its effort to locate and then neutralize terror suspects here at home. Time and again, the news show established, the Bush administration has for reasons that are both obvious and obscure, turned weak or non-existent terror cases into headliners. As someone who has covered this "beat" for the past five years, I heartily second the show's motion.

The pattern is thus: some shady terror suspect points an accusing finger, or Northern Alliance soldiers are given cash payments as incentive to identify "dangerous" terrorists, or a man of Arab descent simply finds himself in the wrong place at the wrong time with the wrong friends, and trigger-happy officials make an arrest, or an apprehension, or a detention, which is quickly followed by a sleek and stern official announcement designed not just to remind us that there is an ongoing war on terrorism — not just perhaps to remind us of what we have to fear — but also to tell us that a significant victory has just been won.

Under the pattern, the suspect is immediately tagged a terrorist, linked to al Qaeda, turned into a grave threat to national security, and then either charged with beefed-up federal anti-terror charges or simply put on ice under military detention, without the right to face any such charges or even assert a defense. And it is not until there is some level of scrutiny into the information and evidence upon which the allegations are based — scrutiny from increasingly skeptical judges, brave defense attorneys, or dogged reporters — that the truth comes out. And too often, far too often, that truth does not support the charges or the detention. Sometimes, the suspect is freed. Sometimes not.

The Hayat story thus is the progeny of a line of stories that goes from Zacarias Moussaoui (who wasn't the 20th hijacker) to Jose Padilla (who wasn't a dirty bomber) to the Michigan men who were convicted after a trial that led to the indictments of the prosecutor and one of his fellow federal officials for misconduct. It is the latest in a litany that includes the puffed-up case against the so-called "American Taliban," John Walker Lindh, who was cowering in a Northern Alliance prison cell in Afghanistan when a U.S. spy was killed nearby.

It is a successor to cases like that of Yaser Esam Hamdi, a U.S. citizen who was labeled an "enemy combatant" by President George Bush and sent to a military brig for years, left without due process, until the Bush administration abruptly freed him and let him return to Saudi Arabia after a U.S. Supreme Court ruling generated the sort of scrutiny mentioned above. One day, Hamdi was too dangerous to even be allowed to speak to an attorney. The next day, he was hanging out with his family in friends in the Middle East, from the very country where the vast majority of the 9/11 hijackers had come.

Everyone wants our law enforcement officials and their counter-terror counterparts to aggressively defend us from enemies, foreign and domestic. No one wants to go back to the pre-Sept. 11 mindset that focused more upon prosecuting people for mass casualty crimes rather than preventing those crimes from being committed in the first place. But a good strategy, alone, isn't good enough to protect the rights of innocent people; isn't enough to ensure that the rule of law still means something; isn't enough to avoid the unacceptable pattern that lead us from Moussaoui to Hayat with so many dubious stops in between.

If Bush administration officials are going to make good, fair and legal use of their vast new powers of detention, they are going to have to do better — much, much better — than they have proven capable of doing so far. I'm sure that there are genuine terror threats here in America. Who could argue otherwise? But spending time and resources turning people like the Hayats into terror suspects isn't going to get us any closer to finding the real bad guys.

By Andrew Cohen