Politics of Terror Threaten Constitution

By:  Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair


The recent election of Republican Senator Scott Brown in Massachusetts has effectively torpedoed the constitutional right to silence by any “terror suspect” arrested on American soil. Elected to replace the legendary liberal Senator Ted Kennedy, who died of brain cancer last August, Brown used the “politics of terror” to seal his stunning upset victory over Massachusetts Attorney General Martha Coakley. Brown accused the Obama administration of being “soft on terror” with its decisions to close Guantanamo Bay and to prosecute “9/11 mastermind” Khalid Sheikh Mohammad and co-conspirators in a New York federal civilian court rather than before a military tribunal.


These two decisions have drawn the political ire of Republicans across the country, as well as many conservative-moderate Democrats, including New York’s senior senator Charles “Chuck” Schumer who, along with New York’s Republican Mayor Michael Blumberg, have lobbied the Obama administration to move the KSM trial out of New York and into some more remote region of the country. Scott Brown effectively manipulated this political unrest to rise from the depths of a “long shot candidate” into the “winner’s circle”—a political victory that simultaneously resurrected the Republican Party from the ashes of political demise and put the Obama administration in the cross hairs of a deepening political crisis.


Then the Christmas Day bombing attempt of a Northwest Airlines flight over Detroit by a Nigerian native named Umar Farouk Abdulmutallab stunned the nation. Abdulmutallab was seized, taken into custody by the FBI, and underwent some custodial interrogation before he was advised of his Miranda right to remain silent and given counsel. The FBI did not contact any of the nation’s intelligence agencies prior to interrogating or advising Abdulmutallab of his Miranda rights. The law enforcement interrogation effectively ceased after the terror suspect was advised of his right to silence and counsel appointed to represent him.


Republicans, and Scott Brown in particular, seized upon the Justice Department’s handling of the “Christmas Day bombing case” as further evidence of the Obama administration’s “soft on terror” policies first scorned by former Vice President Dick Cheney. Brown, who by Christmas Day has already surged almost even with Coakley in the polls, used the Abdulmutallab case to rally angry Massachusetts voters even more, telling them that their tax dollars should not be used to pay for “lawyers for terrorists.” He reiterated these campaign views on January 20, 2010 in his U.S. Senate seat victory speech.


“I believe that our Constitution and laws exist to protect this nation,” Brown said. “They do not grant rights and privileges to enemies in wartime. In dealing with terrorists, our tax dollars should pay for weapons to stop them, not lawyers to defend them.”


Two of Sen. Brown’s key advisers, strategist Eric Fehrnstrom and pollster Neil Newhouse, told the media that they believe the senator’s use of the terrorism issue played more in his favor than his attacks on Obama’s health care plan. “National security was a more potent issue than health care, based on the polling we saw, on dealing with terrorists as ordinary criminals versus enemy combatants.”


The political repercussions from Brown’s successful use of the “politics of terror” were immediate. The Obama administration announced it was looking for an alternative site for the trial of KSM and his co-conspirators outside of New York City, and Attorney General Holder followed this administration announcement by saying the trial of KSM and his co-conspirators could still be conducted before a military tribunal. The Attorney General also fell on the political sword by telling the media and members of Congress that the original decision to prosecute KSM in federal civilian court had been his alone and had been made without consultation with the White House.

And more recently the Washington Post reported that the Obama administration has reversed itself once again on the terror front by formulating a yet to be revealed policy which would require the Justice Department and FBI to consult with the intelligence community when terror suspects like Abdulmutallab are arrested. Obama administration officials conceded anonymously that the Republican-led charge, that the FBI lost potentially valuable intelligence information once it advised Abdulmutallab of his Miranda rights, was the force behind the proposed changes.


“We are analyzing lessons learned (in the Detroit Christmas Day case) with the goal of ensuring full information from across the government is available to law enforcement on the ground as they conduct interrogations and make decisions on how to handle terrorist suspects,” a senior White Official told the Washington Post, requesting anonymity because the new procedures have not been approved by President Obama.

This same official tried to soften the Obama administration’s retreat on its long-held policy that the constitution trumps “enhanced interrogation techniques” routinely used by intelligence agencies during the previous Republican administration, saying: “The final decision about Miranda and other law enforcement decisions will continue to lie with the FBI and Department of Justice.”


Clearly the Obama administration had succumbed to both the public and political pressure led by Sen. Christopher S. Bond, R-Mo. “The leaders of the intelligence community, the director of National Intelligence, the director of the Counterterrorism Center were shock to hear [Abdulmutallab] had been Mirandized because he had very valuable information,” the ranking member of the Senate Select Committee on Intelligence told Fox News.


When told about the Obama administration’s possible new policy shift, Bond told the Washington Post: “While there are a lot of unanswered questions, I hope this is a signal that the White House is now more interested in getting lifesaving information from captured terrorists than getting them a lawyer.”


That reaction by Sen. Bond, standing alone, exemplifies how Republicans have used the “terror” issue for raw, partisan political gain rather than protecting “national security.” The senator’s statement emphatically accuses the Obama administration of being more concerned about getting terror suspects a lawyer than protecting the nation against terrorism. If that’s not partisan politics, then are no longhorns in the State of Texas.


Former President Harry S. Truman universalized the statement, “if you can’t stand the heat, get out of the kitchen.” To our disappointment, the Obama administration has signaled it cannot stand the heat in the presidential kitchen. President Obama has repeatedly told the American people and the world community that this nation does not, and will not, torture any suspect; that we as a people are not ideologues driven by the emotion to use any interrogation technique possible to secure what Sen. Bond called “very valuable information.”


If this nation learned anything from the President Bush declared “war on terror,” it was that interrogations of terror suspects by intelligence agencies are not remotely comparable to “custodial interrogations” conducted by law enforcement agencies. “Enhanced interrogation techniques” used by intelligence agencies is a euphemism for torture, pure and simple. The FBI refused to participate in these kinds of “enhanced interrogations” during the Bush administration because they violated American law, international law, and the Geneva Conventions.


If the FBI must “consult” with the intelligence community before it Mirandizes a “terror suspect” under the policy being considered by the Obama administration, then the law enforcement agency may also defer to any interrogation techniques suggested by the intelligence agencies. For example, if it is believed that a terror suspect has “very valuable information” and is not cooperating with the FBI’s normal custodial interrogation, what interrogation techniques will the CIA suggest be employed to secure that information? Waterboarding? Sleep deprivation? Slapping and use of pressure points? Any of these techniques, or a combination thereof, amount to torture.


One thing is certain: if a terror suspect has “very valuable information” about terrorism, the CIA and other intelligence agencies will utilize whatever physical and psychological means are necessary, including “torture,” to force the suspect to disclose that information.


And what will happen as a result of this kind of “enhanced interrogation” process?

The Associated Press reported last month that U.S. District Court Judge Thomas Hogan threw out 23 statements the Government planned to use against terror suspect Musa’ab Omar Al Madhwani who was captured in Pakistan in 2002. After being turned over to U.S. forces, Madhwani was taken to a “pitch-black prison” where he was suspended in a cell by his left hand, subjected to loud music 24 hours a day, and repeatedly threatened and abused. The suspect said he “confessed” to everything the interrogators wanted in order to stop the physical and psychological abuse. Judge Hogan said the suspect’s “medical records” supported his claims of abuse.


And how will President Obama be able to face the American people and the world community and still tell them we are a nation of laws, not torture, when such confessions are repeatedly suppressed by the federal courts because the “enhanced interrogation techniques” utilized by intelligence agencies to get terror suspects to give up that “very valuable information” are unconstitutional?


We are saddened to say that the U.S. Constitution—the document so often touted by political conservatives and new “tea party movement”—has once again, as it was so many times under the previous administration, been sacrificed at the altar of terror politics. The only hope for its survival lies with federal judges, like the Honorable Thomas Hogan, who have the courage to stand for the rule of law and not the “politics of terror.”




By:  Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair