Tide Turns In Terror War

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

And for the first time since Sept. 11, 2001, the Administration began, grudgingly, to acknowledge some of the political and legal limitations inherent in an overall strategy (i.e., detain first, sort things out later) that is much more un-American than not.

It may just be a dip in the curve. The courts certainly have not completely vitiated the government's anti-terror efforts. And the Supreme Court itself hasn't yet spoken substantively on any of the civil liberties issues raised in the past two years.

Meanwhile, lawyers at the departments of Defense and Justice aren't exactly getting cramps from bending down before the bench. Still, the signs seem fairly clear that the White House won't get nearly as much deference from the courts over the next two years as it received during the past two years.

First, the Pentagon announced this week that it would voluntarily permit attorney access to Yaser Esam Hamdi, a U.S. citizen who was designated early last year by President Bush to be an "enemy combatant." The designation allows the government to hold Hamdi indefinitely, without charges -- and until this week -- without the right to see anyone other than his military interrogators.

The timing of the government's largesse to Hamdi was not coincidental. The Justice Department this week happened to have a filing deadline in a case brought on Hamdi's behalf (and obviously pursued without his knowledge or consent) that now is wending its way toward the Supreme Court.

The Pentagon said the move was "a matter of discretion and military policy" and should not have been construed as creating "precedent." The Justice Department said Hamdi's restored rights were a matter of governmental courtesy, not obligation.

But it's fair to say that the executive branch offered Hamdi an olive branch to help make nice with the judicial branch. My guess is that many smart government lawyers now sense the courts zeroing in on some of the more egregious examples of the use of raw power against individuals -- and Hamdi certainly could be Exhibit A in that case.

The government similarly and without coincidence conceded ground this week in the case of David Hicks, an Australian-born detainee who has been at the Guantanamo Bay facility since the Afghanistan campaign in 2001. After finally agreeing with Australia that Hicks had a right to see an attorney and to be tried before a military tribunal (instead of merely being kept literally at bay down in Cuba), the Pentagon actually assigned Hicks an attorney this week. This is surely good news to some of the other Guantanamo Bay detainees and it comes on the heels of an announcement by the Supreme Court that it will take up the issue of what rights, if any, those foreign-born detainees might have in federal courts.

Then there was the ruling this week by a federal appeals court in California -- yes, the routinely-reversed 9th U.S. Circuit Court of Appeals -that jeopardizes the government's use of the "material support" statute in terror cases. From John Walker Lindh to the Lackawanna Six, the government has charged suspects with providing "material support" to terror organizations even when that support was arguably far from "material."

In fact, the federal law, passed nearly a decade ago, has become a catch-all charge of sorts; a cornerstone routinely added to indictments to permit prosecutors to go after penny-ante figures only remotely linked to terrorism.

Now, thanks to a ruling that declares the statute unconstitutional, the "material" is back in the "material support" law and prosecutors in nine states may not prosecute an individual for what the court called the exercise of the right to free expression.

Finally, there was the circus that has become the case of Zacarias Moussaoui. This week the 4th U.S. Circuit Court of Appeals, one of the most conservative federal appeals courts in the nation, hinted for the first time publicly that it might not be willing to rubber-stamp the government's efforts to try Moussaoui on capital charges without giving him access to witnesses who might help exonerate him (or at least save him from lethal injection).

During oral argument this week, the appeals judges kept asking government lawyers why they couldn't simply hammer out a compromise that would give Moussaoui his constitutional rights while still protecting national security. If you are the Bush Administration and you've lost the 4th U.S. Circuit Court of Appeals on a matter like this, you've lost a bit of your grip on the push-and-pull tension between the two branches.

So it was a good week for the separation of powers doctrine, a bad week for those who seek bended-knee deference from life-tenured judges. It was a good week for checks and balances, a bad week for presidential imperialists.

It was a week when the courts finally awoke, flexed their muscle, and began to realize just how far the Constitution has been stretched in the past two years in the name of fighting terrorism. It was, in other words, a week historians might look back upon decades from now and call the end of the beginning of justice in a time of terror.

By Andrew Cohen