Read It and Weep

The Legal Year in Review

By Andrew Cohen
Special to washingtonpost.com
Friday, December 29, 2006; 12:00 AM

The good news from the world of the law in 2006 is that we did not for once in recent memory have to endure an avalanche of vapid news coverage about a solitary trashy tale of sex and fame and crime. There was no Michael Jackson molestation trial or Kobe Bryant rape trial or Laci Peterson saga to draw our attention away from trials and cases and legal issues of true merit.

The bad news from the world of the law in 2006 is that we didn't take that extra time given to us by divine providence and follow or absorb with any depth or sense of passion or outrage the truly monumental and generally ominous things that were done in the law, in our name, in this fifth-going-on-sixth year of the legal war on terrorism. Tens of millions of Americans know and care about the identity of the latest winner of American Idol. But only a tiny fraction of those know, too, of the manifold pressures currently pushing upon the rule of law. Hey, you didn't really think that Paris and Britney really were going to end up best-friends-forever, did you?

From our government's own documents, for example, we learned in 2006 that hundreds of the terror suspects at Guantanamo Bay, being held now for about half a decade, never took up arms against the United States or were otherwise a part of Al Qaeda when they were captured by U.S. or Coalition forces shortly after we went to war. Our own military has told us this and we have done nothing with it. Those men languish there, in our self-made terror incubation camps, while our legislative- and executive-branch leaders conjure up ways to deprive them of their rights. Can you believe that hot and naughty Miss USA is now in rehab?

We lasted the entire year in 2006 knowing that our executive branch was able and eager to spy upon us, without any warrants or other legal checks or balances upon that invasive power, as part of a domestic surveillance program that many leading legal experts believe is, at best, constitutionally suspect and, at worst, blatantly illegal. We even learned this year that some of that surveillance fell upon anti-war protestors and others who were exercising their constitutionally-protected free speech rights. And we did virtually nothing about it. Do you really think Tom and Katie are married?

Meanwhile, almost all of our federal judges remained silent about the National Security Agency program (and its cousin, the Department of Defense's "Talon" program, whose administrators were caught with data on anti-war activities at churches) except for a brave few. For their part, our national legislators, whom one noted essayist aptly called "corrupt and indifferent," were unable or unwilling, day after day at the so-called "people's house" of Congress, to muster up the courage and force to assure either us or themselves that the White House wasn't permitting or even encouraging widespread constitutional violations. Seriously, what do you think really happened at that stripper party at Duke?

2006 was the year in which the Supreme Court, thanks to the newest Justice, Samuel A. Alito, Jr., declared admissible evidence seized from a home after the police entered via a "no-knock" raid. Writing for a 5-4 majority over a vigorous dissent, Justice Antonin Scalia ruled that the "societal cost" of suppressing evidence obtained as a result of these sorts of raids was greater than the corresponding privacy protections citizens would receive from a continuance of the longstanding "knock and announce" rule of police work. Only the civil libertarians among us cried foul when this case was announced this past June. Everyone else remained silent. Can you believe that Starr Jones took on Barbara Walters on television?

Just when we need strong, independent judges most to thwart the concerted effort by the White House to impose a "unitary" theory of governance, 2006 also happened to be the year in which hundreds of thousands of Americans expressed their scorn for the judiciary by voting for anti-judge initiatives in elections all across the country. The worst of these measures was soundly defeated in South Dakota. But in Colorado a similarly goofy scheme netted nearly 600,000 votes before it went down to defeat. These troublemakers were egged on by cynical politicians who successfully pander to their base by labeling judges as anti-American (or worse) when they issue unpopular rulings. I haven't yet been hit by a mobile phone thrown by supermodel Naomi Campbell, have you?

We've also just endured a year in which an over-the-top television host was accused in court of contributing (via a nasty, unfair interview) to the suicide of a mother whose child went missing and who thus became natural fodder for that host's popular but grim show that features daily doses of vengeance and prejudgment on its menu. We experienced a collective moment of Zen when we learned that the icon of corporate greed, Enron's Kenneth Lay, dropped dead in his bathroom in the middle of the night, a la Elvis, just months before he was to be sentenced for fleecing billions. And we discovered that the judge in the Terri Schiavo case, who bravely followed the law, still gets hate mail. Wait, please tell me once again why O.J. Simpson can't go to jail if he confesses to killing Nicole and Ron?

2006 was not a good year for the Constitution. It was not remotely a good year for the concept of separation of powers in government or for the idea that our system works best when there are sufficient checks on the excesses of one branch over another. It was not a good year for opponents of an imperial presidency or for supporters of a concerned and compassionate Congress. It was not a year that offers a lot of hope that things will get any better, or even stabilize, in 2007.

So we got out of the law this year what we deserved from it. And hopefully we will come to realize in 2007 and beyond that if we continue to ignore and neglect the most important and weighty issues that confront the Constitution, its power and authority will erode, slowly but surely, until one of the best ideas ever conceived by man is relegated to being just another dusty, historical document.

Andrew Cohen writes Bench Conference and this regular law column for washingtonpost.com. He is also CBS News Chief Legal Analyst. His columns for CBS can be found online here.