Terror and Cause and Effect By Andrew Cohen

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Terror and Cause and Effect

http://www.washingtonpost.com/wp-dyn/content/article/2006/10/17/AR2006101701090.html

By Andrew Cohen
Special to washingtonpost.com
Wednesday, October 18, 2006; 12:00 AM



We know now what we didn't know then, back in the dark days of the autumn of 2001, and we still cannot get it right. After five years we now have a long track record of seeing what can, will and usually does go wrong when the administration acts unilaterally in the legal war on terror. It has been written into the record of one Supreme Court case after another, one lower court ruling following the next, and still we accept the premise that the rule of law as we knew it could and should be twisted unrecognizably, now and forever more, until this ill-defined, ever-evolving, undeclared war is over.

The detainee legislation that the Congress has just passed, with the advice and consent of White House officials hungering for more legal latitude upon their conduct, represents a complete abdication of the legislative branch's vital duty to act as a brake upon the executive branch. Worse, Congress has now officially become an explicit co-conspirator along with the Bush administration in its five-year-long effort to freeze out of the equation the federal courts, the last bulwark against tyranny. The less-than-do-nothing Congress finally did something and in doing so made a bad situation an order of magnitude worse.

Generations from now, historians and scholars and lawyers and judges will look back upon the past five years, and last month's formal legislative reaction to it, and marvel at the vast gulf between cause and effect. It is of course inapt to compare this atrocious law to the decrees that caused the internment of Japanese-Americans during World War II. But it is not too early to predict that our heirs will look back upon this law, and the dark effort behind it, with the same mixture of astonishment and disgust which our generation feels over what our government did in our name following Pearl Harbor. A Sept. 28 New York Times editorial compared this law with the notorious Alien and Sedition Act of the late 18th Century and, indeed, it is that bad and maybe even worse given what we know of the current war on terrorism.

But back to the grand disconnect that exists between what this law does -- gives the President new broad power -- and what preceded it -- the White House's often bungled use of its already-existing broad power. Long after both President Bush and Osama Bin Laden are gone from the scene, our successors-in-interest will look at this wretched law in particular, and the events upon which it is based, and wonder why Congress dramatically loosened the Bush Administration's legal leash at this time rather than severely restricting it.