Terror Law: Can't Anyone Here Play This Game?

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It has been nine-and-one-half years since the Twin Towers fell. It has been a few weeks past eight years since 9/11 planner Khalid Sheikh Mohammed was captured in Pakistan. It has been seven years since we first learned about torture at Abu Ghraib. Seven years!

Since that time, the United States Supreme Court has rendered four major rulings about terror law and has impacted countless other lesser cases. Congress has passed sweeping legislation governing the rights of the detainees at Guantanamo Bay, Cuba. White House officials, through successive administrations, have attempted to close the odious prison via means of military tribunals and repatriations, cajoling and threats. In court and on Capitol Hill and from the bully pulpit, from sea to shining sea, millions upon millions have been spoken and written about American justice in a time of terror.

Our government still has not found the legal and political equilibrium that would result in an honorable adjudication of the men of Gitmo.

And what exactly do we have to show for all that? Not a lot of legal clarity. And certainly not a great deal of efficiency. There are fewer detainees now than there were before, that's true. But the hardest legal cases -- and not just those involving incidents of torture -- have still not been processed through a system designed, remember, for quicker justice. Meanwhile, literally adding insult to injury, former Defense Secretary Donald Rumsfeld himself just revealed his disappointment, way back in 2003, that Gitmo was populated in the first place with "low-level" detainees and not, as disgraced former Attorney General Alberto Gonzales used to say, the "worst of the worst."

Nearly a decade on from the ash and rubble, the three branches of government still have not found the legal and political equilibrium that would result in an honorable (not to mention legally viable) adjudication of the men of Gitmo. Federal lawmakers gleefully allowed the Bush White House to prosecute terror suspects in civilian court, but Congress now won't let the Obama administration do likewise. The federal courts, constitutionally unable to play a proactive role in legislation, have mainly told the other two branches only what they cannot do. And the White House has gone from excessively asserting executive power under Bush to fecklessly defending it under Obama. Conservatives and liberals alike are calling it the same thing: Bush Lite.

Take last week, for example. The Obama administration re-started military tribunals with new rules and due process safeguards. It pledged to fight Congress over restrictions on federal criminal prosecutions for terror suspects. It implemented a periodic review of the case files of those detainees at Guantanamo Bay, Cuba, for whom tribunals are not an advisable option. On Capitol Hill, meanwhile, lawmakers sought to further erode traditional Justice Department functions by transferring more authority over detainee policy to the Department of Defense. These are big developments. They will shape the contours of the terror law debate for years to come.

Alas, they also clearly reveal many of the same divisions and contrary directions we've seen over and over again since President Bush authorized the tribunals in November 2001. And thus they foretell even more counterproduction for the looming second decade of our war on terror.

With September 11, 2011 now only six months away, here is the sorry state of what we are expected to accept as smart, viable, and -- most of all -- effective terror law policy. 

1. The most traditional (and successful) way of prosecuting terror suspects, both before and after 9/11, is to try them in federal civilian courts. But for the men of Gitmo, this avenue now appears precluded by Congress. On this topic, we have an oddity in the government's post 9/11 legal response to terrorism. On this, the feds actually got it right at the start and have slipped since, the specter of seeing Mohammed as a criminal defendant in an American courtroom evidently being too horrific for federal lawmakers to contemplate. Talk about snatching defeat from the jaws of victory.

2. Two of the men most responsible for Congress' failure to help establish a lawful and competent military tribunal system at Guantanamo Bay, Cuba -- Sen. John McCain (R-Ariz.) and Sen. Lindsey Graham (R-S.C.) -- have never been held politically accountable for their meddlesome errors in judgment. They are still there on the ramparts, stirring up trouble, and contaminating yet another wave of practical solutions to the detainee problem. Here's a metaphysical question someone might want to try to answer for me: How consistently wrong do lawmakers have to be before other lawmakers stop listening to them?

3. Having infuriated civil libertarians with a resumption of the tribunals, the White House and Justice Department are gambling that their new commission rules are going to satisfy the federal courts, including the Supreme Court, which ultimately will determine the fate of the prisoners. It's a big gamble, especially if the new rules are as similar to the old ones as some people think. But if it pays off, I suspect the president won't care what the Wall Street Journal's editorial writers call him the the day Mohammed's tribunal conviction and sentence are endorsed by the Supreme Court.

It feels like I have written this graph a thousand times since 2002 but I'll write it again: The object here is to process and prosecute these prisoners through the adjudication of the allegations against them. President Bush failed to do this because he promoted unfair and unconstitutional tribunal rules and the courts called him on it. President Obama now will take his shot. If Congress doesn't want the Gitmo detainees in federal court, the administration must bring much of the federal court to Gitmo. If the White House and Justice Department achieve that with their new rules, I promise you we won't all be talking about this mess come September 2021.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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