Fear Mongers Continue Calls for Military Tribunals to Avoid Burdens of Complying with Constitution and Rule of Law
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
The day after we posted our blog “Argument Against Gitmo Closure Defeated By Act of Terrorism” (Dec. 28, 2009), in which we pointed out that Republican opponents of the Obama administration’s decision to close Guantanamo Bay, had not suggested that Christmas Day attempted airline bomber Umar Farouck Abdulmutallab be tried before a military tribunal rather than in a civilian court, Rep. Peter King (R-N.Y.) led an awakened chorus of Republican voices saying Abdulmutallab should not be tried as a “criminal defendant” in a federal civilian court but rather as a “terrorist” before a military tribunal.
“I think that the administration has made a mistake by treating this terrorist as a common criminal … by putting him into the criminal justice system,” King stated in a December 29 interview with NBC. “I wish they would have put him into a military tribunal so we could get as much intelligence and information out of him as we could … My concern is that we did miss the opportunity because once we put him into the criminal justice system, he gets a lawyer and Miranda rights.”
King’s statements suggest that military interrogators would have been able to employ the “harsh interrogation methods” long advocated by former Vice President Dick Cheney (such as water boarding, sleep deprivation, physical abuse, etc.) to secure the “intelligence and information” the congressman assumes Abdulmutallab possesses. Apparently Rep. King, along with the others who share this point of view, forgot that in 2005 Congress (a body to which the New York representative belongs) passed the Detainee Treatment Act which prohibits cruel, inhuman and degrading treatment of “terror suspects” during military or CIA interrogations. Torture is no longer a permissible method to extract “intelligence and information” from terror suspects, despite Dick Cheney’s lamentations to the contrary.
Rep. King, who is a ranking member of the House Homeland Security Committee, must have also forgotten (or has never been aware) that in October 2009 President Obama signed the 2010 National Defense Authorization Act (which is called the “Military Commissions Act of 2009”) which significantly altered the legal landscape in the interrogation of “terror suspects.” The previous Military Commissions Act, enacted by King and his congressional colleagues in 2006, allowed coerced statements obtained through torture to be admitted into evidence against terror suspects tried before military tribunals. The new Act, which was law at the time of Abdulmutallab’s arrest, no longer permits the use of such statements obtained through the “harsh interrogation” techniques supported by Dick Cheney and others. In a recent Findlaw column, Human Rights Watch attorney Joanne Mariner discussed the provisions of the revised 2009 Act:
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