Terror And Bush's "Must-Do List"

Lawyer Andrew Cohen analyzes legal affairs for CBS News and CBSNews.com.
Helping to explain the contours and nuances of the legal war on terror has been by a mile the most important job I have tried to perform for CBS News since the Twin Towers fell. It also has been by far the most difficult. First, the law is rarely a good "television story" since it rarely involves good video or pictures. It is always a challenge to tell it on the air in a compelling way. Second, our evolving (some say devolving) rules of law governing the fight against terrorism often are so complex and dense that they beggar quick analysis and commentary.

But every once in a while, I come across an article, or a story, or an opinion piece, that crystallizes in one tiny space much of the work I have tried to do over the past five and one-half years. It happened on Sunday, when the editorial page editors of the New York Times offered up as a house editorial what they labeled a "Must-Do List" for the Bush administration to focus upon as it tries to, in the Times' words, "undo the damage" caused by our government's anti-terror policies. The "news peg" for the editorial is the recent effort by some in the new Democratically-controlled Congress to push new legislation that would undercut much of what the old Congress had done.

Here are the headlines of the list: Restore Habeas Corpus, Stop Illegal Spying, Ban Torture Really, Close the CIA Prisons, Account for Ghost Prisoners, Ban Extraordinary Rendition, Tighten the Definition of (Enemy) Combatant, Screen Prisoners Fairly and Effectively, Ban Tainted Evidence, Ban Secret Evidence, Better Define "Classified" Evidence, and Respect the Right to Counsel. Now, you can tell just from those titles where the Times stands on these issues—and you probably aren't surprised by those positions. And no doubt some of you reading this disagree completely with the "list" the paper has compiled.

Fair enough. But I can tell you, as someone who has covered every single one of those issues, that the paper has fairly identified the most significant disputes and pressure points that have arisen in constitutional and statutory law since September 11, 2001. The past few years have truly been a time of monumental change for our nation's laws- change that has gone in many cases unnoticed by a great many people. In our name, on our behalf, but without necessarily our attention, our government has done dramatic things and taken extraordinary legal positions in fighting the legal war on terror. And it is not at all objectively clear to anyone even five years out that these policies have been smart or good or right or justified.

So, to the extent that simple, easy-to-read editorials like the Times' piece on Sunday help people understand how much our terror laws have become unrecognizable in such a short time, great. To the extent that marvelous documentaries like "Ghosts of Abu Ghraib," currently airing on HBO, help with this education, even better. And, to the extent that brave judges and politicians are willing to try to temper or even negate the worst of those changes, best of all.