The Legal War On Terror

CBSNews.com Legal Analyst Andrew Cohen looks at the changes in America's courts over the past year and considers whether the current system of justice will work in winning the war on terror.

Already armed before the attack on America with the immense power of the state, over the past 12 months the White House, the Justice Department and prosecutors around the country have zealously pushed up against -- and in some ways beyond -- well-established legal boundaries to put people in jail, to keep them there, and to avoid explaining why for as long as possible.

So far, one year into what figures to be a long, twilight struggle against a new type of criminal bent on a new type of crime, the results are murky. The government can boast, on the one hand, that there have been no follow-up attacks on America since the twin towers fell. This is a sign, perhaps, that the administration's sprawling, aggressive, frenzied round-up of suspects and "material witnesses" in the days and weeks after Sept. 11 disrupted the efforts of the al Qaeda "sleeper" cells still lurking in this country. If this is the case many people can rightfully argue, at least at this point in our new history, that the novel, jarring jurisprudential means in the fight against terror has justified its ends.

But if the administration can proclaim this Sept. 11 that our domestic tranquility has been reinforced, it surely must also concede that the cost to individual liberties and to the very structure of government itself has been very high. In fact, aside from the depths of the Civil War, when President Lincoln suspended fundamental rights in the name of security, it's hard to identify another time in our nation's history when the momentum in our courts and in our legislatures was so far in favor of police power and so far against the protection of the procedural and substantive rights of citizens. And it isn't just concrete new laws and rules that have altered in favor of government the delicate balance between the individual and the state. The past year also has seen a titanic shift in the way the judicial system operates; a shift that is bound to be more apparent to regular Americans in the months and years to come.

It's trite but still illustrative to say today that the legal landscape has changed monumentally since Sept. 10, 2001. Today, law enforcement officials may use roving wiretaps to follow suspects from one place to another and from one cellphone to another; they may seek records from bookstores and libraries; they may in some cases share domestic intelligence information with their Central Intelligence Agency colleagues; they may seek the deportation of people more quickly and behind closed doors; they may more aggressively track and seize the financial assets of individuals and entities at home and abroad; they may refuse to release to the public even the most basic information about people held behind bars; they may send non-citizens to the bar of justice before a military tribunal instead of a civilian court; and they may, if the President says so, hold U.S. citizens indefinitely -- and incommunicado even from their own attorneys -- without having to answer to the courts.

The government may do all of those things, and many more things, because Congress authorized these powers last October in the USA Patriot Act and has since stepped aside; because the White House has exercised these powers continuously over the past year in the name of the President as Commander in Chief; and because federal judges, fearful of authorizing the release of a future terrorist, so far have been mostly unwilling or unable to provide an adequate check on the executive branch. Yes, it is true that most of these new powers have been challenged in court and some of those challenges, at least for now, have been relatively successful. But it also is true that the Supreme Court is yet to make any definitive, substantive ruling on any terror-related issue and the victories won so far through great effort by civil libertarians and the media have largely been victories of process over substance.

For example, it took months and months, and an arduous appeal that is still ongoing, just to get a court to declare that the Justice Department ought to release the names of some of its terror suspects unless it can justify keeping those names secret. When you declare that sort of gateway ruling a major defeat for the government, as some did last month, it says something about how skewed the fight really is against those who want more access to the inner-workings of the legal war on terror. The White House and the Justice Department are quite simply fighting a generally successful scorched-earth battle in the federal courts, to try to ensure that the executive branch is afforded great deference and latitude as it pushes forward on the legal front in the war on terror.

Prosecutors are conceding no points, omitting no charges, offering no breaks and ignoring no potential avenue of fact or law to press their advantage over a wide-range of terror law cases since last September. They contend that this new, fanatically aggressive strategy is an absolute necessity if our justice system is going to fulfill the function of protecting Americans from the next attack. And that's the real question as Year One of the new reality turns into Year Two. So far the government has worked within the confines of the existing justice system to try to achieve its noble goals. But that may not be enough. The arguments, cases, appeals and decisions over the next 12 months will clarify and in some ways decide whether our current model of justice works in this new era or whether our political, military and judicial leaders need to come up with a new model that better prevents terrorism before it occurs, instead of reacting to it once the dust has cleared.

For that reason and many others, the story of the legal response to Sept. 11, 2001 is much closer to its beginning than it is to its end.