How Obama Got His Groove Back

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Why did the President decide to try KSM and four others in U.S. criminal courts? This was not Eric Holder’s unprecedented legal decision, but the President’s political decision.  The President’s political decision raises concerns of both conservative and liberal legal scholars. It seems that the President has made a short-term political decision to rally support by reviving the torture issue –  a decision that threatens long-term damage to our civil liberties.  The decision is all the more cynical if it is a smokescreen to divert attention from the health care debate.

The decision to try these individuals in civilian courts was unprecedented (without legal precedent.)  Some wrongly argue that the decision has legal precedent.  They argue that the Bush administration used civilian courts to jail Richard Reid, Jose Padilla, “American Taliban” John Walker Lindh; the Lackawanna Six; and Zacarias Moussaoui.  However, none of these (save Lindh) appear to be “unlawful combatants”. International law recognizes that “unlawful combatants” (civilians engaged in armed combat against the military) are not protected by the Geneva Convention as POW’s (and are often subjected to coercive interrogation and executed).  Lindh (an apparent “unlawful combatant”) was tried in civilian court because he was a U.S. citizen.  Nor was Holder able to offer any precedent.

The decision to try these individuals in civilian courts was not Eric Holder’s, but the Presidents.  Eric Holder has no independent authority to move these subjects to federal courts to stand trial.  “The attorney general doesn’t have the authority to mandate that the secretary of Defense turn somebody over to him and yield jurisdiction so that something that would have been done in a military setting is done in a civilian setting,”  states former Attorney General Aschcroft, “I believe that this is a decision that comes as a result of the president making the decision, or if not making the decision, allowing an attorney general to do what he normally doesn’t have the authority to do, and could only do at the acquiescence of the president.”  The President appears to be using Holder as cover for his own political decision.

The President’s decision raises concerns of both conservative and liberal legal commentators. Conservative legal scholar Mark Levin argues that the Fourth Amendment must apply (with all of the standard rules) because federal court has only one set of rules.  Levin worries over the threat to civil liberty if the rules are undermined or the Constitutional line between civil and martial law is blurred.  Liberal public defender David Feige shares Levin’s concerns – that bad precedents may undermine the right to a speedy trial, erode the Fourth Amendment, allow withholding of critical evidence from future defendants, and expand suppression of evidence in the name of national security.

The President has made a political football of torture allegations.  Earlier this year, he made torture accusations when he released memos detailing alleged torture practices – the “facial hold” (holding a subject’s head immobile), “walling” (forcing a subject into a flexible wall), “cramped confinement”, and “waterboarding” (“individual is bound securely to an inclined bench.… A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner… [as] the cloth is lowered until it covers both the nose and mouth.”).  Partisan Democrats cried for show trials of Bush officials.  But, the President and Holder did not prosecute interrogators.  Instead, they decided to investigate the government lawyers who legally justified “enhanced interrogation techniques”.  Finally, they did nothing, since prosecuting government lawyers for rendering legal opinions would, in effect, criminalize policy differences.

“Like a dog with a juicy bone, the far left does not want to let go of this issue,” says conservative writer Peter Hannaford.  The President’s political motive becomes all to clear – use the torture issue to revive his flagging support by igniting the far left.  Details of “enhanced interrogation techniques” will inevitably arise in these criminal trials.  And the President will attempt to use it for his political advantage in the 2010 elections.  If conservative and liberal legal commentators are right about the dangers, then the President’s short-term political decision will cause long-term damage to our civil liberties.

The President’s decision is all the more cynical if it is a smokescreen to divert attention from the health care debate.  He has surely calculated that his decision will spark a firestorm in the conservative media.  His intent may be to focus conservative media on something they can do nothing about (these prosecutions), rather than a political battle they can influence (healthcare reform).

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