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The President’s Balancing Act; Public’s Right to know, Due Process for Terrorist
 
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
 
President Barak Obama has drawn considerable political flak recently from liberal Democrats, human rights groups, and “left-leaning” bloggers for two terror-related decisions: the decision to fight the court-ordered release of dozens of photos of terror suspects being subjected to torture interrogation techniques; and the decision to resurrect the military tribunals set up during the Bush administration to try terror suspects. This new wave of criticism from the president’s natural base of supporters comes of the heels of massive political flak he incurred several weeks ago from Republicans, right-wing radio talk show hosts, and the “new voice” of the Republican Party, former vice-president Dick Cheney, concerning the administration’s decision to release of U.S. Justice Department “terror memos” authorizing CIA torture interrogations in 2002.
 
Our first observation about these recent politically-motivated turn of events is this: in order to receive that kind of criticism from so many diverse political perspectives—all of which are promoting pushing some kind of out of the mainstream agenda—it is a clear indication that President Obama is doing the “right thing” and trying to serve both the constitutional and security interests of this nation.
 
We have written rather extensively in the past about a laundry list of the “war-on-terror” issues: torture, secret prisons, CIA-kidnappings of terror suspects, military tribunals, abuses to the great writ of habeas corpus, and the infamous terror “memos.” We are by no means “experts” on these issues but we do have the natural ability to distinguish between necessary restrictions and the flagrant disregard for sacred constitutional principles in the Bush-declared “war on terror.” The Bush administration—led by the likes of Dick Cheney, Alberto Gonzales, and Donald Rumsfeld—manipulated legitimate “national security interests” to justify a host of illegal activity and constitutional abuses: torture of terror suspects, illegal surveillance of American citizens, criminal kidnappings of innocent individuals on foreign soil, denial of basic human and civil rights, to name only a few.
 
So we naturally supported President’s Obama’s release of the terror “memos” in an April 21, 2009 article (“The CIA Terror Memos”); and as a matter of presenting a balanced perspective, we posted another on May 9, 2009 (“A Defense Against Torture”) offering a defense for those former Justice Department officials who authorized the CIA torture interrogations.
 
Any weighing of “national security” and “constitutional” interests demands a measured, balanced response. If the ideologues on either the right or left are allowed to control this decision-making process, abuses of both interests are inevitable. Fanatics of any political stripe are dangerous to our founding principles of democracy. A mere review of all the failed democracies that litter the landscape of history will show that it was the fanatics who destroyed them.
 
That’s why we support the president’s decision to fight the court-ordered release of the photos of the terror interrogations. First, court orders are not always right. How many “court orders” have sent innocent people to prison? And how many lower court orders have later been declared unconstitutional or based on unsound legal principles? Our law books are filled with reversed court-orders. The president not only has a right but a duty to seek a definitive ruling from the nation’s highest court–the U.S. Supreme Court—on such a thorny constitutional issue.
 
Second, President Obama is the nation’s commander-in-chief. He has a fundamental duty to protect the thousands of military personnel who are currently in “harm’s way” on foreign soil. The highest ranking military officers in this country have advised him that the release of those photos would place these military personnel at greater risk of harm. The president had a constitutional duty, above and beyond all others, to heed the advice of his military advisors not to release photos that could cause harm to our military personnel.  Presidents, democrat and republican, have juggled this political “hot potato” throughout the history of this country.
 
Finally, what legitimate “right to know” interests would be served by releasing the photos? None. The president has already released the detailed torture memos that unequivocally informed the American public that the CIA engaged in enhanced and torture interrogation techniques. Those memos informed the American public about not only how but why U.S. Justice Department officials authorized those interrogation techniques. The American public is not a “torture voyeur” who wants or needs to see CIA personnel water boarding or slapping around terror suspects. The ACLU and Huffington Post bloggers seek release of the photos not for any First Amendment “right to know” protections but to be used as political ammunition to discredit the political right by seeking criminal prosecution of those responsible for the torture interrogations. While there motives are very understandable, the U.S. Constitution is not a football field where a contest of political ideologies should be waged.
 
As for military tribunals, we have long had a problem with the complete lack of constitutional protections available to those facing trial before such tribunals. President Obama, however, has greatly enhanced legal protections for terror suspects who will be brought before these tribunals. For example, evidence obtained through cruel and unusual interrogations techniques will not be admissible; greater restrictions will be imposed on the use of hearsay evidence; and a suspect will have greater leeway in choosing military counsel of his choice.
 
While these protections are not nearly as great as the evidentiary protections and constitutional rights enjoyed by a criminal defendant in the American legal system, unfortunately, certain kinds of terror suspects cannot realistically be tried in the nation’s legal system. The evidence against some of these terror suspects simply would not stand up against evidentiary rules of procedure or constitutional challenges in criminal courts. Some would argue that these individuals should be “turned loose” if a case cannot be made against them in the nation’s legal system where they would enjoy the full panoply of constitutional rights.
 
But this “turn ‘em loose” option is not only impractical but truly dangerous to the legitimate “national security interests” of this country. A dozen or more of the terror suspects currently being held at the Guantanamo Bay military prison in Cuba are dangerous individuals who were allegedly directly involved in the 9/11 attacks, or were involved in other terror attacks on this country, or were involved in the planning of terror attacks on this country. To this day these individuals declare their allegiance to the destruction of the United States of America.
 
There should be no debate about whether these individuals should be held accountable for their terrorist activities—some of which cost the lives of thousands of innocent Americans. The rule of law and the very safety of the American people demand accountability for the terrorist attacks committed against them. The military tribunals as they are being resurrected by President Obama are the only realistic way to achieve such accountability.
 
Even if we subscribed to the “term ‘em loose” argument, there is no country that would take them—and even if another country would take them, it would only allow them to engage future terror attacks against Americans if they so wished.
 
President Obama has adopted the sound policy for dealing with the difficult “war on terror.” He has not only condemned torture as a way of extracting information from terror suspects, but has also said they will be accorded all the rights guaranteed to “prisoners of war” under the Geneva Convention. The president is chartering a course that will allow America to both treat terrorists in a humane manner, give them due process, and, if necessary punish them as swiftly and severely as their crimes require.
 
A nation has an indisputable right to protect itself from terrorism—and it does not have to forsake its fundamental constitutional values in doing so. We believe President Obama as our commander in chief has undertaken, and hopefully will continue, a course of action that will protect our legitimate “national security” interests while allowing America to restore its place as a moral beacon in the international community.
 
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair