Post 9/11 Law: An Unfinished Journey

By CBS News legal analyst Andrew Cohen

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.

Hamdi, initially designated as an "enemy combatant" and put on ice for a few years, was treated differently than John Walker Lindh, the so-called American Taliban, who was immediately prosecuted (and pleaded guilty, alas, prematurely as it turned out) even though both men were picked up fighting with the Taliban overseas.

The only thing consistent about the treatment of these men is that they were treated inconsistently and that is anathema to the concept of equal treatment under the rule of law. The government has defended these disparate treatments by arguing that it must retain the ability to be "flexible" about how to deal with terror suspects, some of whom may be intelligent assets and some of whom may just be regular old thugs.

But even that standard fails the government's own test, for Moussaoui, who apparently had some connection to some al Qaeda leaders surely was a greater intelligent asset than Hamdi, who was a common soldier (and who, ultimately, was released without ever having to face charges).

Which brings us to the treatment of the prisoners we have captured, or our allies have captured, in the fight. Nowhere was the government's law-related conduct over the past five years more unproductive and self-defeating than it was in this area.

First, myopic White House officials — including the man who now is America's top lawyer, U.S. Attorney General Alberto Gonzales — turned 200 years of high ethical and moral conduct by our troops on its head by authorizing, with lawyer-like stealth, the types of interrogation and custodial methods that led directly to the diplomatic disasters that occurred at Abu Ghraib prison in Baghdad and at other spots where shadowy government agents questioned murky terror suspects.

Moreover, the linguistic games our government played with the Geneva Conventions, and the concomitant use of torture (let's face it, that's what we did to those top-level al Qaeda thugs), in the end, both angered our allies across the world and ended up providing us with intelligence that our military now says is probably useless.

That our government would have thought this particular strategy would turn out well or even differently itself tells us a lot about the level of desperation and unharnessed optimism that pervaded the hearts and minds of our best and brightest in the days, weeks and months following the terror attacks on America.

Now, finally, within the past year, we can see the pendulum swinging back.

Our military is formally and loudly rejecting torture or things closely connected to it. Our legislators are beginning to make noise about finally finding the backbone they need to reject the excesses of the White House's plans to try the detainees.

Even federal court judges, who were so agonizingly pliant during the months and years following the attacks, are resuming their vital function of requiring the other two branches to justify their requested changes in the law with facts and argument and not mere declarations.

We have come a long way since a single military official's affidavit (in the Hamdi case) was enough to justify holding an American citizen, indefinitely, without charges. And yet the looming military trials of men like Ramzi Binalshibh and Khalid Sheik Mohammed promise to generate new legal issues and new challenges to the rule of law as we know it.

If the past five years are notable for a paucity of true 9/11-related trials, the next five promise to be chalk full of them, each providing context and perspective on the shape of the law in this time of terror.

It is impossible to overstate how much the structure of the law has changed — or, more precisely, how much the Bush Administration has tried to change it — since the hijackers struck. The very notion of "checks and balances," the bedrock principle that we teach our children in school, has been challenged by an administration whose one consistent argument in virtually every legal battle since Sept. 11, 2001 has been to declare that the president needs more power to wage war on terrorists and that the other two branches ought to be satisfied with less.

That the system has bent in that direction, but not broken, is a testament not just to the brilliance of the Constitution but to the men and women who have sought to interpret it honestly in the face of enormous public pressure.

Have our laws and the way we interpret them changed? Absolutely. Are we safer today? Probably. Have we paid a price? No doubt.

But the simplest truth is that, five years along, the legal fight against terrorism is still very much an unfinished journey, with some clear skies over some parts of the path and a whole lot of fog covering the rest.