Obama's Assistant Attorney General Tells Senate: Terrorists Captured on Battlefield Have Constitutional Rights
Wednesday, July 08, 2009
By Penny Starr, Senior Staff Writer


Sen. John McCain (R-Ariz.) (CNSNews.com/Penny Starr)

(CNSNews.com) – At a Senate hearing Tuesday on the use of military commissions to prosecute terrorists being held at Guantanamo Bay, some members of the Armed Services Committee took offense at the Obama administration’s view that the detainees should have the same legal protections under the Constitution as U.S. citizens.

Ranking member Sen. John McCain (R-Ariz.) questioned Assistant Attorney General David Kris about his remarks on the appropriateness of administering the Miranda warning to terrorist suspects captured abroad. "It is the administration's view that there is a serious risk that courts would hold that admission of involuntary statements of the accused in military commission proceedings is unconstitutional," Kris said in his opening statement.

“Does that infer that these individuals have constitutional rights?” McCain asked Kris.

“Ah, yes,” Kris answered.

“What are those constitutional rights of people who are not citizens of the United States of America, who were captured on a battlefield committing acts of war against the United States?” McCain asked.

“Our analysis, Senator, is that the due process clause applies to military commissions and imposes a constitutional floor on the procedures that the government sets on such commissions …” Kris said.

“So you are saying that these people who are at Guantanamo, who were part of 9/11, who committed acts of war against the United States, have constitutional rights under the Constitution of the United States of America?” McCain asked.

“Within the framework I just described, the answer is yes, the due process clause guarantees and imposes some requirements on the conduct of (military) commissions,” Kris said.

“The fact is they are entitled to protections under the Geneva Convention, which apply to the rules of war,” McCain said. “I do not know of a time in American history where enemy combatants were given rights under the United States Constitution.”


Jeh C. Johnson, general counsel, Department of Defense (CNSNews.com/Penny Starr)

Kris and Jeh C. Johnson, general counsel for the Department of Defense, said that military commissions were a viable “alternative” but that prosecuting terror suspects as criminals in U.S. federal courts was preferable – a position Sen. Joe Lieberman (I-Conn.) took issue with at the hearing.

“Why would anyone prefer to try people apprehended for violations of the law of war?” Lieberman asked. “The fact is that from the beginning of our country, from the Revolutionary War, we’ve used military tribunals to try war criminals, or people we have apprehended, captured for violations of the law of war.

“Again, I think the unique circumstances of this war on terrorists, against the people who attacked us on 9/11, have taken us down, including the Supreme Court, some roads that are not only to me ultimately unjust but inconsistent with the long history of military commissions,” Lieberman said.

“Why would you say the administration prefers to bring before our federal court system instead of military commissions that are really today’s version of the tribunals that we’ve used throughout our history to deal in a just way with prisoners of war?” Lieberman asked.

“I applaud this committee’s initiative to reform the military commission act. I think the military commission should be a viable ready alternative for national security reasons to deal with those who violate the laws of war, and I’m glad we’re having this discussion right now, and I thank the committee,” Johnson said.

“When you’re dealing with terrorists whose, and I’m going to say this on behalf of the administration, one of their fundamental aims is to kill innocent civilians, and so it is the administration’s view that direct violence on innocent civilians, let’s say in the continental United States, it might be appropriate that that person be brought to justice in a civilian public forum in the continental United States,” Johnson said.

“Because the act of violence that was committed here was a violation of Title 18 (federal criminal law), as well as the law of war, so we feel strongly that both alternatives should exist,” Johnson added.


Sen. Joe Lieberman (D-Conn.) (CNSNews.com/Penny Starr)

“Well, I respectfully disagree,” Lieberman said. “These are people we believe are war criminals; that’s why we captured them. The greater legal protections of the terrorists because they have chosen to do something that pretty much has not been done before in our history to attack Americans, to kill people here in America, as they did on 9/11, civilians, innocents, it doesn’t matter, and to do it outside of uniform.

“So it puts us in a very odd position, giving these terrorists greater protections in our federal courts than we’ve given war criminals in any other time throughout our history, even though, in my opinion, they are at least as brutal and inhumane, probably more brutal and inhumane than any war criminals,” Lieberman said.

“Yes, it might also be an act of murder that killed people who were in the Trade Towers on 9/11, but it was an act of war,” Lieberman said. “And the people who did that do not deserve the same constitutional protections of those accused of murder in New York City.”

The hearing focused on the military commissions portion of the National Defense Authorization Bill for Fiscal Year 2010, which includes changes to the Military Commission Act of 2006.

Committee Chairman Carl Levin (D-Mich.) summarized the changes in his opening statement.

  • Relative to the admissibility of coerced testimony, the provision in our bill would eliminate the double standard in existing law, under which coerced statements are admissible if they were obtained prior to Dec. 30, 2005.

  • Relative to the use of hearsay evidence, the provision in our bill would eliminate the extraordinary language in the existing law which places the burden on detainees to prove that hearsay evidence introduced against them is not reliable and probative.

  • Relative to the issue of access to classified evidence and exculpatory evidence, the provision in our bill would eliminate the unique procedures and requirements which have hampered the ability of defense teams to obtain information and led to so much litigation.
We would substitute more established procedures based on the Uniform Code of Military Justice (UCMJ), with modest changes to ensure that the government cannot be required to disclose classified information to unauthorized persons.

“Of great importance, the provision in our bill would reverse the existing presumption in the Military Commissions Act of 2006 that rules and procedures applicable to trials by courts martial would not apply,” Levin said.

“Our new language says, by contrast, that ‘Except as otherwise provided ... the procedures and rules of evidence applicable in trials by general courts-martial of the United States shall apply in trials by military commission under this chapter.’ The exceptions to this rule are, as suggested by the Supreme Court, carefully tailored to the unique circumstances of the conduct of military and intelligence operations during hostilities.”

Despite the ongoing debate, on June 25 the committee voted unanimously to send the bill to the full Senate for consideration. Staff at the Armed Services Committee press office could not say when the Senate will take up the bill.