Terrorism Law Battles Flare Up, Flame Out
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
While we were all distracted by he Mutt and Jeff show on Capitol Hill last week, and by that I mean the Roger Clemens-Brian McNamee steroids lie-off, our political leaders and intelligence officers were ratcheting up the rhetoric (and the posturing) in our endless battle to legally wage war on terrorism.
If the baseball scandal were focused squarely upon two lessened men sharing a single table on Capitol Hill, the roiling battle over surveillance, detainee rights and military commissions was splayed across the nation's capital; in the Senate and the House, at the Supreme Court and at the White House, Justice Department and Pentagon. It was a messy week, full of bloated threats, short-sightedness and little in the way of legal certainty.
There was a pitched battle between Congressional Democrats (at least in the House of Representatives) and the White House over renewal of the nation's domestic surveillance laws. Depending upon whom you believe our nation either is at great risk of a new terror attack because Congress didn't renew the Protect America Act or we'll do just fine using our old-fashioned reliance upon those secret Foreign Intelligence Surveillance Act (FISA) courts.
Right now, the executive branch's "Terrorist Surveillance Program" is on hold pending the return of the legislators toward the end of the month. "Because Congress failed to act, it will be harder for our government to keep you safe from terrorist attack," said President Bush, emboldened by the fact that Senate Democrats endorsed renewal of FISA and the granting of legal immunity to telecommunications companies that help the government conduct domestic surveillance.
Nonsense, snapped the Democrats. The president agreed to extend by a few days the expiring law, which didn't give immunity to those companies, and our nation's intelligence officials are still free to use FISA court judges, who often act in hours, to get the approval their need to search or seize or spy. And, speaking of immunity for misdeeds, by the end of the week we learned from The New York Times that "an apparent miscommunication" between the feds and one of those telecom companies gave the FBI access to "an entire computer network-perhaps hundreds of accounts or more."
Then there was a renewed push by the Bush Administration to clarify the rules by which federal courts will be able to review rulings handed down by Combatant Status Review Tribunals set up years ago to classify (as "combatant non-combatant," etc.) suspected terrorists at Guantanamo Bay. The White House wants the Supreme Court to expedite a review of a case that addresses that issue - to essentially add this new case to the Guantanamo Bay detainee case already pending (and ripe for a ruling) before the Justices.
Pretty complicated, right? And that's only about the level of appellate review on the pre-screening the detainees get before trial. The rules for those trials themselves - the "military commissions" as they'll be known to history-haven't been set. Which is why some Gitmo legal observers were surprised last week when the Pentagon announced it will try on capital charges six alleged Al Qaeda suspects. Khalid Sheik Mohammed, the 9/11 plotter, and Ramzi Binalshibh, a key cog in the conspiracy, will be among the six.
A debate immediately erupted over whether, given the one-sided rules, it will be the terror suspects or America herself that will be on trial if and when the commissions get started. Pundit after pundit, civil libertarian after civil libertarian, chimed in. The Washington Post ran a story on how lawyers for the doomed men "are not allowed to meet their clients in private, without video surveillance. All their mail and notes must be turned over to the military. Classified information cannot be shared with their clients. They are not entitled to everything the government knows about their clients."
The lawyers want to know how they can adequately defend their clients in these circumstances. Military officials claim the detainees will be given almost the same rights as suspected American soldiers would get for serious crimes. The shills at the White House proclaimed it a great step forward. The families of the victims shouted "about time." The only ones who were silent were the federal judges who ultimately will decide what rules will be used, and in what circumstances.
Wake me up when those judges start talking.