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

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.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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