Civil Liberties or Safety? CBS News Legal Analyst Misses the Point

In his September 10 article "Opportunities Squandered Since 9/11," CBS News legal analyst Andrew Cohen declares that "[o]ur leaders have made it far worse for themselves, and for us, by choosing confrontation over collaboration in the creation of a new legal order to best combat terrorism." Cohen's idea of "collaboration," of course, means that Republicans and the Bush Administration should listen to and implement the ideas of Cohen (and others who think like him). But while Cohen is quick to dump criticism upon post-9/11 conservative legal policy, he does not credit that policy for the prevention of further terrorist attacks.

Cohen chooses some familiar liberal talking points for the opening of his critique.

The legality of the National Security Agency's domestic spy program is in court and up in the air, challenged and perhaps headed for a Supreme Court showdown. The administration's latest plan - Plan C for those of you scoring at home - to try the Guantanamo Bay detainees through the use of military tribunals remains on hold because of its legal infirmities. Portions of the USA Patriot Act, revised, were struck down last week by a federal judge. It could take years more for that dispute to be resolved.

Cohen also laments the perceived loss of "civil liberties" such as the FBI being able to obtain records from telecommunication companies.

Cohen cites to the many "leaders" who have let us down, starting with Republicans in congress.

[W]hen controlled by the Republicans, the legislators in Congress bowed down like ostriches before President George W. Bush. It was a complete abdication of their oversight functions. The USA Patriot Act, the first version, was enacted in the fall of 2001 without so much as a quick read by most lawmakers. Its revised edition, after much reflection, is only marginally better. And the 2006 Military Commissions Act, the latest formal effort by the Congress to interject itself into the legal fight against terror, was instead just another lawsuit-inducing sell-out to the Pentagon.

And, according to Cohen, the judiciary has failed us as well.

Lower federal judges, for their part, granted extraordinary deference to White House officials in the years immediately following the attacks. This occurred even when those officials came into court and argued the following: who are you going to believe when it comes to assertions of national security, me or your own eyes?

Cohen, not nearly finished, also lays into congressional Democrats (for not effectively challenging the Republicans) and the Justice Department (for being incompetent).

While naming a lot of names, all of Cohen's criticisms lead back to the same source: the Bush Administration. Cohen complains that the Bush Administration has an "attitude" about expanding its own powers "to the detriment of the other two branches."

Instead of seeking out consensus among its eager and willing co-participants in government - instead of convening, for example, a terror law summit - it has used the terror attacks to aggressively expand its own powers to the detriment of the other two branches. From the revolutionary use of presidential "signing statements" to try to change the meaning of federal laws, to the use of "extraordinary renditions" to steal terror suspects away to secret prisons, the White House has spent the past six years avoiding legal and political partnerships.

The attitude is perhaps best summed up by David Addington, one of the "true believers" inside the White House. The current chief of staff to Vice President Dick Cheney reportedly has said: "We're going to push and push and push [for greater executive branch power] until some larger force makes us stop." Given this approach, the results have been entirely predictable. For every success in the legal front against terrorism, there have been setbacks and delays. When you treat your friends - in Congress and the courts - like enemies pretty soon they become so.

With the Bush Administration, Republicans, Democrats, and the lower federal courts all run amok, Cohen's last hope is the U.S. Supreme Court. But even the highest court has let down Cohen, despite his open lobbying for the Supreme Court to legislate from the bench.

The Supreme Court, in 2004 and 2006, has had to intercede to tell the other two branches that they had zealously overextended themselves in violation of federal law and the Constitution. But the justices failed on both of those occasions to explicitly and positively shape the outcome of the profound debate over the extent to which the president may assert his powers as commander-in-chief. All they did was politely tell the White House what it could not do.

For good measure, Cohen takes a shot as the newest conservative justice pointing out these decisions were "before Justice Sandra Day O’Connor, the pragmatist, was replaced by Justice Samuel A. Alito, Jr., a doctrinal supporter of the controversial 'unitary executive theory' of presidential authority." 

For all his criticism, though, Cohen does not point out that the domestic surveillance program assisted in breaking up terror plots in Britian and Germany (among others known and unknown). 

And while Cohen and other civil libertarians complain about the claimed "unconstitutionality" of Guantanomo Bay, they never cite to the deterrent effect of the facility. While radical Muslims terrorists have proven they are not afraid of dying, it appears they are averse to indefinite prison sentences in Cuba.

As to the Patriot Act, there are very few instances of alleged civil liberties violations, and in his article Cohen cites to none of the prosecutions aided by the Patriot Act.

But Cohen really misses the point when he describes the Bush Administration expanding its powers. Cohen frames Bush Administration policy as if it is doing something wrong, when in fact the federal system is based upon checks and balances among the branches. Our Constitution presumes that the legislative and executive branches will exceed their powers at times, and in those cases, it is the role of the judiciary to check those powers. This is federalism at its best, not an administration run amok. Cohen's frustration isn't with the system, but rather that congress and the courts aren't doing more to stop legal policy that Cohen himself doesn't agree with.

The contrast in approaches could not be more distinct: the Bush Administration has taken clear, decisive, tangible action - while Cohen would convene a terror summit.

Legal eggheads can argue all day long as to the constitutionality and appropriateness of the Bush legal policy as it relates to terrorism. But you can't argue with the results: no attacks in the six years since 9/11.