Post 9/11 Law: An Unfinished Journey

By CBS News legal analyst Andrew Cohen
Judging from President Bush's big detainee announcement last week, and the swift and vocal reaction to it, it is clear that we have not yet completed our journey from where the law stood on the morning of Sept. 11, 2001 to where the law ultimately will come to rest in the multi-front battle against terrorism.

We have come far, no doubt, and many of the legal disputes we already have resolved would have been unthinkable before the Twin Towers fell. But some of the biggest battles are yet to come and as unpredictable to gauge as anything we've yet seen.

We know five years into this twilight struggle that we have as a people sacrificed freedom and liberty in exchange for security and safety. Thanks to the USA Patriot Act and its legislative progeny, for example, we have consented to more searches of our bodies and more seizures of our property. There are more checkpoints in our lives. There is fingerprinting at airports. Bags can be randomly checked on trains and subways. And it hasn't just been concrete changes in the letter of the laws that have made this so. It has been a fundamental change in the level of our willingness to accept these personal intrusions as a way of perhaps stopping the next attack.

We also have become accustomed to a new priority from our police and prosecutors. They have said over and over again that they will no longer be content with prosecuting criminals or terrorists after they strike — that the focus now of our counter-terrorism program is to stop the attacks before they occur.

This paradigm shift has made it difficult for the government to prevail in court, especially when prosecutors have busted up so-called terror rings before the ringleaders have made any overt acts in furtherance of a crime. Watch over the next five years for this tension to first heighten and then get resolved either by legislation or Supreme Court fiat.

Meanwhile, thanks to the National Security Agency's domestic surveillance program, secretly authorized by the White House but now under legal and political pressure, we have, or at least some of us have, been spied upon without knowledge, consent or a court order authorizing the spying. Where you stand on the NSA program, especially in the absence of any definitive court rulings on its constitutionality, depends largely upon which branch of government, or which political philosophy, you trust most to guide us through the world that has emerged from the fire and ash of the Pentagon and Lower Manhattan.

If you trust the president and the Republican leadership, the NSA program is a narrow exercise in aggressive counter-terror measures designed to interrupt communication between terrorists or, at least, monitor those communications for intelligence and law enforcement purposes.

If you do not trust the president and his spymasters, the NSA program is an excessive, free-speech-chilling, and ultimately futile attempt to monitor conversations that no longer take place, anyway, between savvy terrorists. Either way, the constitutional verdict on the surveillance program, however and whenever it comes, will be one of the biggest law-related stories of the next five years in the war on terror.

One of the biggest themes of the first five years of the legal fight was the haphazard prosecution or detention of various high-profile terror suspects. Looking back there seems to be no rhyme or reason to how the government proceeded. Zacarias Moussaoui, who is not a U.S. citizen, was afforded greater constitutional rights than were Jose Padilla and Yaser Hamdi, two U.S. citizens.