Obama And Terror Law: More Of The Same?

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
As Attorney General Eric Holder prepares Monday to visit the terror detainees and their guards at the prison at Guantanamo Bay, Cuba, it is fair to say that the first month of the Obama administration has been a major disappointment to civil libertarians and others who believed that the new president would swiftly deconstruct some of the most dubious terror law policies enacted by the Bush White House and the Pentagon.

It's true that President Barack Obama formally pledged in the first hours of his presidency to close down Gitmo within one year. But don't forget that George W. Bush declared on several occasions that he, too, wanted to close down the place as quickly as possible.

Indeed, it's hard to find anyone of substance who wants to keep open the sad symbol of American penal excess except for a few hysterical senators who have unhelpfully adopted a Not-In-My-Backyard stance on relocating the detainees to prisons on American soil.

So the Attorney General goes to Gitmo with his Justice Department (and no doubt the Pentagon as well) undertaking a review of individual detainee cases that cannot be much different in form than the review of those cases that Bush officials had performed over the past few years (which has resulted in the release of hundreds of Gitmo prisoners).

The only measurable difference, it seems to me, are the new sets of eyes that will be reading the dossiers. The evidence against the men (in some cases good, in many other cases not so much) is the same - and so are the diplomatic challenges in sending the least dangerous ones away for good.

We will know whether the Obama administration really is serious about alternatives to Gitmo when it announces how it plans to disperse the men. How many will be repatriated or otherwise sent abroad? How many will be tried in our civilian criminal courts, or in new terror-law courts? How many under repaired military commission rules? What will those rules look like? Will the men be housed at Supermax in Colorado, which already houses al Qaeda convicts? Or will Sen. Sam Brownback's worst nightmare come true - terror law prisoners at Ft. Leavenworth? We just don't yet know.

But we do know how the new president has reacted to other terror law policies. And so far there has been no reason for Obama's staunchest supporters on the left to be anything but dismayed.

A few weeks ago, the Obama Justice Department informed a federal judge that it would follow the Bush administration's expansive interpretation of the "state secrets" doctrine; a legal standard that allows the government to ask for dismissal of a case against it if the evidence is classified and may not be revealed without harming national security.

The case in question involves the government's still-controversial domestic surveillance program. The feds used the same argument to recently support the dismissal of a lawsuit against the Boeing Corporation which alleged the planemaker had helped transfer terror suspects abroad for torture as part of the government's "extraordinary rendition" program."

Then, on Friday, the Obama Justice Department hewed to another oft-litigated Bush administration policy when it curtly told another federal judge in another case that terror detainees held at the U.S. military airbase at Bagram, Afghanistan have no "habeas corpus" right to petition U.S. courts for a redress of their grievances.

The position indicates the new administration is willing to live with two sets of rules for its detainees: one that grants Gitmo prisoners rights to our courts (the Supreme Court made that call last year), and one that does not. Noodle on that for a second more - Gitmo now is the best place a terror detainee can be these days!

In the next month or so, there will be several other ways in which the Obama administration will reveal its plans and priorities. For example, the Justice Department has until March 23 to file a brief in the Supreme Court case of Ali Saleh Kahlah Al-Marri, a Qatari national who was arrested in December 2001 while living lawfully in the United States. He was initially charged with making false statements to investigators, but before his criminal case could proceed he was designated an "enemy combatant" and put into the brig in Charleston, South Carolina, where he resides today.

The prisoner's lawyers say that his indefinite detention is unconstitutional - that the government must either release him, as it did Yaser Esam Hamdi (an American citizen who was captured abroad, brought to the States, designated a "combatant," and then abruptly returned to Saudi Arabia after the Supreme Court ruled in his favor in 2004), or charge him in our regular courts, as it did with Jose Padilla (an American citizen who was arrested in Illinois, designated a "dirty bomber," sent to military detention, and then brought back into the criminal justice system, tried and convicted after the Supreme Court ruled in his favor in 2004).

The Bush Administration had argued that al-Marri is an Al Qaeda operative who was sent to America to take part in a post-9/11 terror plot. As Jane Mayer magazine, the feds allege that al-Marri met with Osama bin Laden, had links to one of the financiers of the Twin Tower plot, was trained in the mid 1990s in chemical warfare, and may have some sort of connection to top 9/11 planner Khalid Sheik Mohammed.

But much of this evidence, if it exists, would be inadmissible in our civilian courts because of the way it was obtained or because it is otherwise classified. The Bush team weighed the factors in the al-Marri case and opted to keep him on ice.

Now the Obama team gets to have its say. The Justices will hear argument in Al-Marri during the last week of April and may have a ruling by the end of the term. But we should know well before then whether the earliest decisions of the Obama administration on terror law represent the exceptions … or the rule.