Monday, March 08, 2010

McCain and Lieberman: The Odd Couple Even Odder

By William Fisher

Civil liberties advocates and Constitutional law scholars lost no time in condemning proposed legislation introduced in the Senate yesterday that would hand the government the power to indefinitely detain terrorism suspects without charge and to conduct trials through military commissions only.

Typical was the response from the American Civil Liberties Union (ACLU), which said the proposed legislation would “deal a swift blow to due process and the rule of law.”

And Larry Cox, executive director of Amnesty International USA (AI), said, “Military commissions were created to consider evidence too inadequate to submit to a valid court. The commissions do not conform to the due process standards established under international law and do not have legitimacy in the eyes of the global community."

The “Enemy Belligerent Interrogation, Detention and Prosecution Act of 2010,” introduced by Republican Senator John McCain of Arizona and Independent Joseph Lieberman of Connecticut, would also create a new system of interrogation, requiring intelligence officials to be consulted about how to handle terrorism suspects after their capture.

The bill was precipitated by the Senators’ objections to the Obama administration’s decision to charge accused Christmas Day attacker Umar Farouk Abdulmutallab in the criminal court system. Abdulmutallab, while in FBI custody, was read his rights, including his right to remain silent and his right to an attorney. These Constitutional rights are enjoyed by all persons, whether they are citizens or not, who are arrested on U.S. territory.

U.S. officials insist Abdulmutallab provided valuable intelligence under civilian questioning despite being told he had the right to remain silent.

The McCain-Lieberman legislation would have a “high value detainee” team, made up of members of different intelligence agencies, interrogate and determine whether alleged terrorist suspects are “unprivileged enemy belligerents.” If so, and if the suspect is then charged, the legislation would mandate the use of the military commissions for trial.

President Barack Obama has already created such a team. Last summer, Obama announced a new interagency interrogation task force for extracting information from the most important terrorist suspects in its custody. Known as the High-Value Detainee Interrogation Group (HIG), the team draws on interrogators, intelligence analysts, linguists and cultural experts to interrogate detainees without torturing them. The unit is housed in the Federal Bureau of Investigation (FBI).

Laura W. Murphy, Director of the ACLU Washington Legislative Office, said the bill was “a direct attack on the Constitution.”

Chip Pitts, President of the Bill of Rights Defense Committee (BORDC), told IPS, “This bill’s warped understanding of international law and its mistaken predicate still blur actual wars (such as those in Afghanistan and Iraq today) with the politically appealing yet misleading and overbroad chimera of an endless and geographically unlimited ‘global war on terror’.”

He added, “Particularly when seen along with the Obama administration’s rumored reversal of its prior decision to try 9/11 suspects in civilian courts as opposed to military commissions, it’s another leg in the terrible race to the bottom in which politicians compete to seem ‘tougher’ on terrorism while really diminishing national security.”

Constitutional law experts were equally critical.

Prof. Peter Shane of the Ohio State University law school told IPS, “There seems to be a fundamental philosophical difference between those who believe that the rule of law threatens our fight against terrorism and those who regard it as one of our most potent weapons. There is no evidence to believe that the executive branch is making decisions with regard to the interrogation or detention of suspected terrorists that is compromising either our capacity to obtain intelligence information or to protect the United States from terrorist attack.”

The Bush Administration, he added, “convicted over 300 terrorist suspects apprehended in the United States using our criminal justice system to prosecute terror-related crimes. We should continue to leave these decisions to the discretion of federal prosecutors and investigators.”

Another legal scholar, Prof. Frances Boyle of the University of Illinois law school, told IPS that the current controversy had its roots in the administration of President George W. Bush, who created a universe of “legal nihilism where human beings (including U.S. citizens) can be disappeared, detained incommunicado, denied access to attorneys and regular courts, tried by kangaroo courts, executed, tortured, assassinated and subjected to numerous other manifestations of State Terrorism.”

He said, “This category of ‘unlawful enemy combatants’ negates almost the entirety of the post-World War II regime for the International Protection of Human Rights established by the U.N. Charter in 1945 and most of the major international human rights treaties.”

In introducing the proposed legislation, Sen. McCain said it “seeks to ensure that the mistakes made during the apprehension of the Christmas Day bomber, such as reading him a Miranda warning, will never happen again and put Americans’ security at risk.”

The legislation, McCain declared, “would authorize detention of enemy belligerents without criminal charges for the duration of the hostilities consistent with standards under the law of war which have been recognized by the Supreme Court.”

He added, “What we saw with the Christmas Day bomber was a series of missteps and staggering failures in coordination among the most senior members of the Administration’s national security officials that have continued to be compounded by Administration apologists who still don’t seem to understand that repeating the same mistakes that were made in 2001 and 2002 is going to lead to the deaths of many more Americans.”

The proposed legislation was introduced at a time of fierce election-year acrimony over how the United States should handle alleged terrorists. In addition to attacking President Barack Obama over the treatment of the so-called Christmas Day bomber, Republicans have also denounced the Obama administration's call for trial in a civilian court of Khalid Sheikh Mohammed, the self-proclaimed mastermind of the September 11, 2001 attacks.

Democrats have responded by pointing out that US civilian courts, under both the Bush and Obama Administrations, have tried and convicted more than 300 terrorists. They have said that favoring military trials hands terrorists a propaganda victory.

But the Washington Post is reporting that President Obama's advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, thus reversing Attorney General Eric H. Holder Jr.'s plan to try him in civilian court in New York City.


By William Fisher

Civil libertarians hit back hard today (Sunday) at reports indicating that the Obama Administration is about to cave to pressure from Congress and local groups in New York City and is not only considering transferring the cases of suspected terrorists to another federal court, but even moving them to the military commission system.

The American Civil Liberties Union (ACLU) purchased a full-page advertisement in today’s New York Times, urging the president to stick to the Justice Department’s original plan to try “high-value” terror suspects in the civilian criminal justice system.

The ACLU said military commissions are “a second class system of justice which should be shut down for good. The Constitution is not optional, and the rule of law must be restored.”

The ad features a picture of President Obama morphing into a picture of former President Bush.

The ad asks: “What will it be Mr. President? Change or more of the Same?

“Candidate Barack Obama vowed to change the Bush-Cheney policies and restore America’s values of justice and due process. Many of us are shocked and concerned that right now, President Obama is considering reversing his attorney general’s decision to try the 9/11 defendants in criminal court. Our criminal justice system has successfully handled over 300 terrorism cases compared to only 3 in the military commissions. Our criminal justice system will resolve these cases more quickly and more credibly than the military commissions.

The ad urges readers to “Tell President Obama not to back down on his commitment to our justice system, and to try the 9/11 defendants in criminal court. Remind the world that America stands for due process, justice, and the rule of law.”

Anthony D. Romero, the ACLU’s Executive Director, said the organization
placed the ad because “it’s critical that Americans know what is at stake here: nothing less than America’s commitment to the Constitution and the rule of law.”

Other legal authorities have been blunt in their criticism of the Obama Administration. Prof. David J. R. Frakt, Director of the Criminal Law Practice Center at Western State University College of Law, told IPS, “Many of the crimes alleged to have been committed by detainees at Guantanamo are not crimes under the law of war and do not belong in military commissions. If military commissions are the only option, this may preclude some detainees from being tried at all.”

Frakt, a Lt. Col. in the Air Force Reserve, was appointed to defend Guantanamo detainee Mohammed Jawad, an alleged combatant facing charges for events that took place when he was a minor. In 2008, he challenged the role of the legal advisor to the convening authority -- the number two in the Office of Military Commissions -- Brigadier General Thomas Hartmann, in choosing his client for trial. Frakt argued that Hartmann had "...exercised unlawful command influence." Hartmann was widely quoted as saying the Prosecution should choose to charge captives based on whether their trials would: "...capture the imagination of the American people.

Former Secretary of State Colin Powell joined dozens of retired military officers in encouraging the administration to use the civilian criminal justice system. In a television interview, he said, “I don't know where the [Republican] claim comes that we are less safe…In eight years the military commissions have put three people on trial. Two of them served relatively short sentences and are free. One guy is in jail.”

Meanwhile, he said, “The federal courts, our Article III, regular legal court system, has put dozens of terrorists in jail and they're fully capable of doing it. So the suggestion that somehow a military commission is the way to go isn't…borne out by the history of the military commissions.”

As recently as two weeks ago, the Justice Department appeared to be steadfast in its commitment to civilian courts. “There is no precedent in the history of our Nation in which Congress has intervened in such a manner to prohibit the prosecution of particular persons or crimes," said the U.S. Department of Justice.

The administration appeared to be on board. The president has made his preference for civilian courts widely known. And John Brennan, Assistant to the President and Deputy National Security Advisor for Homeland Security and Counterterrorism, said last week, “Cries to try terrorists only in military courts lack foundation. There have been three convictions of terrorists in the military tribunal system since 9/11, and hundreds in the criminal justice system—including high-profile terrorists such as (the shoe-bomber, Richard) Reid and 9/11 plotter Zacarious Moussaoui.”

But the political backlash was already growing. Most Congressional Republicans believe that military commissions are the correct vehicles for trying suspected terrorists. They also believe that those who cannot be tried in either civilian court or military commissions should be held indefinitely, without trial or charge. Some of these Congresspersons grudgingly acknowledge the Supreme Court’s ruling that all detainees must have the right to challenge their detention in U.S. courts – the habeas corpus right.

But others would deny this right, absent a Supreme Court ruling.

At the same time, some Democrats – looking toward the 2010 elections – are fearful that they will be called out as being “soft on terrorism” and are therefore either remaining silent or adopting the Republican line.

Congress threw an early monkey wrench into Administration plans to bring Guantanamo detainees to the U.S. for trials and to house those convicted in an Illinois prison the government was set to purchase. “Not in my backyard,” was the frightened cry that went up from Congress – which barred the President from moving any prisoner to the U.S. without their consent.

The wrath of right-wing politicians, activists and commentators reached a new level last week when Liz Cheney, daughter of former Vice President Dick Cheney, launched an attack on seven lawyers in the Justice Department. She tagged the lawyers as “Al Qaeda sympathizers” because the law firms they worked for before joining the government defended Guantanamo prisoners, often on a pro bono basis. Cheney called them “The Al-Qaeda Seven.”

“Keep America Safe,” the organization she heads along with William Kristol, a prominent conservative publisher, has launched an internet ad demanding that the identities of the seven lawyers be revealed.

Condemnation of the Cheney ad came from scores of lawyers, law professors, Ted Olsen, who served as George W. Bush’s solicitor general, and the American Bar Association.

Carolyn Lamm, president of the American Bar Association, called the Cheney ad “a divisive and diversionary tactic to impugn the character of lawyers who have sought to protect the fundamental rights of unpopular clients.” She said said that lawyers have an ethical obligation to "provide representation to people who otherwise would stand alone against the power and resources of the government--even to those accused of heinous crimes against this nation in the name of causes that evoke our contempt."