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:


“The good news is that the revised MCA entirely bars statements made as a result of cruel, inhuman, or degrading treatment. It does not, however, allow involuntary statements made by persons other than the accused if the conditions in which the statements were taken do not cross the cruel, inhuman or degrading treatment threshold.


“For the defendant’s own statements, the rules are even stricter. In general, the new law establishes a voluntariness standard for the statements of the defendant, but it establishes an exception for voluntary statements made during military operations—for example, statements made by a defendant who was captured by U.S. military forces on the battlefield. Functionally, the rules regarding the voluntariness of defendants’ statements are close to those used in federal court, as a federal court would most likely apply an exception to the Miranda rule for battlefield captures. (The case of New York v. Quarles created a ‘public safety’ exception to Miranda for situations where a threat to public safety compels law enforcement to question a suspect immediately.)”


Abdulmutallab was not captured on the “battlefield” by military forces which could have subjected him to a harsher method of interrogation than he faced as a criminal defendant. Nonetheless, the civilian law enforcement authorities who arrested Abdulmutallab probably applied the “public safety” exception in order to extensively interrogate the criminal suspect about any other “intelligence and information” he may have possessed. Thus, nothing was lost through a civilian law enforcement interrogation.


Furthermore, as pointed out by Ms. Mariner, the U.S. Justice Department’s Office of Legal Counsel in early 2009 took the position of the Obama administration that terror “detainees” put on trial before military tribunals could “claim certain constitutional rights, including the prohibition on the use of statements obtained coercively.” This position is consistent with the new Military Commissions Act, which has a subsection titled “Determination of Voluntariness,” that, as Ms. Mariner noted, “instructs the military judge about the kinds of circumstances he or she should consider when making an assessment as to the voluntariness of a defendant’s statement. It specifies that the judge should consider the ‘totality of the circumstances,’ including, as appropriate, ‘[t]he lapse of time, change of place, or change in identity of the questioners between the statement sought to be admitted and any prior questioning of the accused.’”


Clearly, had the Obama administration turned Abdulmutallab over to military authorities as a “terror suspect,” it would not have opened some non-Miranda protected gateway through which military or CIA interrogators could have “worked” on Adbulmutallab in order to coerce him into revealing any other “intelligence and information” he may have possessed. And to even suggest that Abdulmutallab may have possessed other “intelligence and information” is border line ludicrous. He could not even detonate the bomb supplied to him (apparently by al Qaeda) for the attack. He was nothing more than a brainwashed “suicide bomber” sent on a mission he could not even carry out. It is not even remotely logical to assume he possessed some throve of “intelligence and information” that could have been obtained through a military or CIA interrogation.


The criticism by conservative lawmakers, and right-wing pundits, of the Obama administration’s decision to try Adbulmutallab as a criminal defendant in federal civilian court underscores the Dick Cheney-led agenda to politicize the issue of the “war on terror.” While the Obama administration does not parrot the Bush/Cheney phrase “war on terror” phrase, it nonetheless calls the prevention of terrorism “a war against Al Qaeda, the Taliban, and associated groups,” as described by Ms. Mariner. Phraseology means nothing. Commitment to the prevention and prosecution of terrorism is all that matters, and the Obama administration had been consistently committed to those national security objectives—and for anyone to suggest otherwise, as former Vice President Cheney has frequently done, is intellectually dishonest.


President Obama informed the American public on January 5, 2010 that the nation’s intelligence system failed with near catastrophic consequences in the Adbulmutallab case. In fact, he used the words “failed” or “failure” nine times during a nine-minute report to the nation through the media on January 5 describing the intelligence system’s failure to “connect the dots” in the Abdulmutallab case. The Bush/Cheney administration never once during eight years of lies and deceit admitted to the American public that it had failed one time in connection with either the 9/11 attacks or anything else involving its so-called “war on terror.”


And, incidentally, where was Rep. Peter King leading up to the near-tragedy in the Adbulmutallab case? He is the ranking member of the Homeland Security Committee, a Congressional oversight committee whose responsibility is to make sure that “intelligence gathering” agencies like Homeland Security “connect the dots” in the nation’s fight against terrorism. The reality is that Rep. King is an integral part of the “systemic” failure of the intelligence community described by President Obama in the Abdulmutallab case and the New York congressman now wants to flee from accountability with the political red-herring that the Obama administration made a “mistake” by not trying Umar Farouck Adbulmutallab before a military tribunal.


The bottom line is this: so long as the nation’s political leaders and the right-wing opinion-shapers continue to politicize the “war on terror,” this nation will never be safe from future attacks by either al Qaeda or any “home grown” terror group. It has become all too common for the minority party to obtain political mileage by inventing failure, rather than contributing to success. Rep. King, Dick Cheney, and litany of other Republican-agenda pushing commentators did not step forward one time in 2009 when the Obama administration successfully thwarted several potential terror attacks against this nation and offer congratulatory comments to the administration for preventing those attacks. The tragedy is that some of the very people who are callous enough to politicize the “war on terror” are Machiavellian enough to desire a successful terror attack because of the political mileage that can be gained from such an attack. That is how dangerously politically divided this nation has become.






By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair