The Annals Of Terror Law

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

Even though they were complicit in the restoration of torture as national policy, encouraged the conduct which begat the disgrace at Abu Ghraib, and are largely to blame for our nation's inability to prosecute terror suspects at Guantanamo Bay, these folks now are trying to salvage their names for future historians by threatening that doom will fall upon the nation. In his New York Times column this Sunday, Frank Rich accused one such tribune of coming "perilously close to wishing aloud that a terrorist attack would materialize to discredit Obama's reversals of" Bush anti-terror policies.

For example, longtime Bush official Marc A. Thiessen apparently is still drinking the Kool-Aid even though the rational world has long since recognized the poison within it. In a fear-mongering op-ed piece this past week in the Washington Post, the former White House and Pentagon official declared that if the current administration follows through on its plan to outlaw torture "it will effectively kill a program that stopped al Qaeda from launching another Sept. 11-style attack."

Not only does this overstate the effectiveness of water-boarding (simulated death by drowning) and other "enhanced interrogation techniques," it also borders on the endorsement of arguably criminal conduct. There are plenty of reasons why there has not been a terrorist attack upon American soil since the Twin Towers fell. And there are a great many politicians, lawyers, historians and military officials who believe you could make a decent case for the prosecution of some former Bush officials who authorized the most aggressive approaches to the treatment of detainees.

But Thiessen then made himself look even worse. If Obama "refuses" to authorize torture and our country is attacked, "he will bear responsibility," he wrote. Yet Thiessen's own boss didn't "bear" responsibility for the events of Sept. 11, 2001 even though one month earlier his top advisors had been warned that Osama bin Laden himself was "determined to attack inside" the United States. President Obama would have to continue to skirt the law on torture and to lose diplomatic points overseas to keep America safe in Thiessen's world; all President Bush had to do was act decisively on good intelligence.

Meanwhile, in equally shrill chorus, a more prominent architect of our failed terror law policies (and thus a more likely candidate for criminal indictment), had the temerity to warn of a parade of horribles that would befall America if President Obama continues his rollback of Bush terror-law policies.

John Yoo, who has been so consistently wrong about the scope of executive power in the Constitution that he ought not be allowed to teach law, now wants you to think that terror masterminds like Khalid Sheik Mohammed and Ramzi Binalshibh are suddenly, under President Obama, going to be treated like the defendants in "Law and Order."

Writing last week in the Wall Street Journal, Yoo predicted that: "Eliminating the Bush system will mean that we will get no more information from captured Al Qaeda terrorists. Every prisoner will have the right to a lawyer (which they will surely demand), the right to remain silent, and the right to a speedy trial."

This statement is demonstrably overblown and disingenuous; a sign that Yoo still wants to go down with his own ship, snapping and snarling about why the iceberg isn't really the iceberg and why he's still right and the rest of us are still wrong.

For example, just because we will torture less or not at all doesn't mean that we will "get no more information" from our enemies. The public record to date since 9/11 suggests that the torture of terror suspects has not been terribly effective or, in some case, even counterproductive. Yoo also is wrong when he suggests that "every" detainee will want a lawyer - we know from the conduct of people like Zacarias Moussaoui and the major al Qaeda leaders at Gitmo that they often do not want lawyers and choose instead to declare their guilt in defiant in-court statements railing against the United States.

In a perfect world, people like Yoo and Thiessen and the many other purveyors of bad ideas and judgments from the last administration would simply slink off somewhere after wishing their successors well in protecting America from terrorism within constitutional limits. We don't need any more negligent navigators of our national policies recommending any more courses that track through any more ice fields. But this is not a perfect world. So we have a new model of cynicism; preemptive "I told you sos" from the very men whose work in government helped to sink us to our present depths.