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Obama's Assistant Attorney General Tells Senate: Terrorists Captured on Battlefield Have Constitutional Rights
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.
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.
Replies to This Discussion
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Permalink Reply by Debbie on -
Goodmorning! I started a reply to this earlier and was sidetracted. In fact I have been pondering this for quite some time now. I started to respond several times and stopped. I have always been a half full kinda gal but lately I have this sense of creeping darkness overtaking the bright city on the hill. I believe we as American's are generous and kind, willing to lend a hand at the drop of a hat. I also believe we are a fierce force to be reckoned with when we defend those who need our protection. Even with our mistakes over the years and who doesnt make mistakes we are human after all. we are that shinning city on the hill. We have always drawn people from other countries looking for a better life, a chance to become what they dream. We are willing to share what we have to offer, all we ask in return is you follow our laws RESPECT OUR CULTURE display loyalty to this country. Not to much to ask in my humble opinion. Besides we are a genuine nice bunch of folks. who wouldn't want to hang out with us?(lol)
Now this administration would offer our enemies(persons who feel hatred for, foster harmful designs against, or engage in antagonistic activities against another; an adversary or opponent) the rights of our citizenry, rights that have costs countless lives on the battlefield in the past and now today as we address this issue, young men trudge through the hell that is afganistan under new rules of engagement that limit their response and tie their hands so as not to offend the culture of the afgan people. Does this seem oxymoronic to anyone else? We come here, to this site, because we are concerned about the security of our country, our communities, our families, because we love this country and what it stands for. We talk about threats from terrorist, wheather disasters, pandemics, but to me this insidious type of threat is the most dangerous of all in its subtle approach explained away as an attempt to be fair, to be what America stands for.. What a crock of crap! This pseudointellectual theory that if America just apologizes and makes amends for her arrogance all will be set right this offends me to my very core. We have rebuilt countless countries and funded the rest, jumped in where ever needed, how are we the bad guys? We play into the enemies(not a proper word in our new lexicon, I know) when we stumble over our own defense with inane premises like this. Jimmy Carter must be doing the happy dance. LORD HAVE MERCY ON US ALL!
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Permalink Reply by Steve VanDegrift on -
Could someone please explain to the White House and the Justice Department that the nation of Islam has not declared war on just the United States, but on all secular governments of the world. This is not a case of the nation of Islam vs. America, but the nation of Islam vs. the world.
Where the hell is the United Nations? Why is there not a world court seated to try these war criminals like we did during and following every other major conflict in the 20th century. The UN is happy to sit back and let the U.S. handle all of the messy details rather than risk offending some member nations because the members of the nation of Islam also happen to be citizens of legitimate countries.
I know that I will offend the sensibilities of a lot of liberals with my next statement. But, anyone who professes the belief that they have a right, and a moral obligation, to kill non-combatants in order to achieve the political goals of their organization, has given up any right to be treated in a humane manner. When these people (read this last word as monsters) are willing to espouse the generally acceptable principles and rules of warfare, I will be among those that argue for their "rights" and fair treatment.
War is not a good thing. I abhor violence, especially when used by anyone to force a belief or a concept of government onto an unwilling person or group of persons. But, as long as there are people who are willing to resort to those measures, I fully support the idea that decent people must resist with the force necessary to convince would-be oppressors that their goals will not be achieved. I am willing to defend the right of all people to live in a free society.
When the nation of Islam is ready to seek their goals through legitimate means, I will accept them as a legitimate political body. Until then, they are outlaws and must be treated as such.
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Permalink Reply by Meir Amarin on -
"Terrorists Captured on Battlefield Have Constitutional Rights". Is it just a semantic issue: "ANYONE Captured on Battlefield Have Constitutional Rights" or are we dealing with new equation terrorist=anyone?
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Permalink Reply by James Williams on -
My new favorite nonpolitical correct word for these type of statements is Poppycock ! My understanding is that to enjoy constitutional rights you first need to be a citizen of the United States & then if you commit such crimes your tried for treason. if your not a citizen then you are an enemy combatant or a spy then you are a prisoner of war , deported or in extreme cases shot as a spy! In any case it is just another attempt to sugar coat the real problem we are at war call what you want but the end result will always be the same!
When has any of our citizens been afforded their constitutional rights when detained in a foreign country ? Please where is the America halted the fascist tide of Nazi Germany & Imperialist Japan in world war 2 we are now facing an enemy far more dangerous now is not the time for politically correctness or placidness in hopes it will go away!
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Permalink Reply by James Williams on
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This article does not sugar coat this subject & there fore is not poppycock! Please take a minute to read-
NEW YORK POST
July 31, 2009
SYMPATHY FOR DEVILS
OBAMA'S OVERSEAS BLIND SPOT
By RALPH PETERS
WHEN it comes to dealing with America's adversaries, rhetorical "empathy" may get the Obama administration points with the media, but stone-cold-sober analysis of the enemy's view of the world would get better results.
There are plenty of problems with this administration's Pollyanna approach to butchers, fanatics and dictators, but its fundamental foreign-policy weakness -- even with allies -- is its refusal to put itself in the other guy's place. Well, things look a lot different from Kandahar or Caracas than they do from 1600 Pennsylvania Avenue.
If you're a Harvard-educated member of our ruling class, insulated from violence, poverty and the passions of faith, it's all too easy to convince yourself that al Qaeda "isn't about religion," or that Iran's hard-liners "don't really mean" what they say about longing for Israel's destruction. Assuming that everybody else, from Peru to Pakistan, is "just like us" and "wants the same things we do" is an old Washington sin. But President Obama has carried it to a level fraught with catastrophic danger.
We need to get it straight: The cabal of rulers in Beijing does not seek the same global outcomes we do. Afghan villagers do not dream of a Hamptons lifestyle. Al Qaeda believes that Allah wants bloody vengeance. Russians assume they have a right to rule their neighbors. North Korea's leaders do not share our humanitarian concerns. Venezuela's Hugo Chavez is not just adding a little salsa to democracy. And Sudan's Arab rulers do not believe that blacks are fully human.
If all men and women want the same thing, does that mean we'd celebrate if our kids became suicide bombers? Would the neighbors congratulate us? Any Post reader inclined to assist in the "honor killing" of his or her daughter after she's spotted flirting?
Not even all of our fellow citizens want the same thing. How on earth can we continue to cough up the lie that war, massacre, vast atrocities and the savage oppression of women are just misunderstandings that a few ringing speeches and heart-to-heart chats will vanquish?
As an intelligence officer, the most challenging and important task I faced was the need to put myself in the mind and soul of an enemy, whether a military commander, a political leader or a fundamentalist madman. It isn't easy, and it certainly isn't comfortable, but it must be done. The greatest leverage you can have in a negotiation is to grasp what your opposite number really wants, what his red lines are, his weaknesses. We obsess on what we have in common, but the key to coming out on top is a painstaking assessment of our differences.
Our enemies study us. We just draw up wish-lists and cross our fingers. As I've noted before, it's natural for Obama to assume he can talk anybody into anything, since this charismatic, talented man talked his way into the Oval Office without ever really doing anything.
But when he attempts to engage Iran's President Mahmoud Ahmedinejad, or Russia's Prime Minister Vladimir Putin, or Venezuela's President-for-Eternity-and-Then-Some Hugo Chavez, it's not just about blithe election promises and getting ACORN to register a few more cemetery residents.
Despite their present bickering, Iran's hard-core leaders all want Israel destroyed. They may debate how and when, but not whether. Putin's life is dedicated to Russia's centuries-old imperial mission. Chavez intends to export his new-model dictatorship throughout Latin America. Hamas and Hezbollah are not interested in amicable compromises over Israeli settlements.
And al Qaeda's terrorists believe down to the depths of their withered souls that their god demands their barbarities and will reward them in paradise for their savagery.
The Obama crowd thinks they're all kidding. After all, who takes religion seriously? Who would really pull a nuclear trigger? Who would spoil everything now, when America's president travels the globe, crying out, "Our bad!"
Our self-mythologizing president got a hard slap in the face last month when Putin -- a typical Great Russian racist -- lectured him on Moscow's imperial destiny. Encountering condescension instead of adulation seems to have come as quite a shock.
But how many shocks will it take before Obama grasps that not every foreign leader will be susceptible to his charm, that they have their own agendas -- and that some of those agendas are irreconcilable with our national interests?
Our emboldened enemies tell us exactly what they mean to do. And we tell them they don't know what they're talking about.
In world affairs, self-delusion has always been a formula for catastrophe.
Ralph Peters is Fox News' strategic analyst.
http://www.nypost.com/seven/07312009/postopinion/opedcolumnists/sym...
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