Give Terrorists Constitutional Rights, Says Obama Administration

WASHINGTON – US administration officials said Tuesday that terror suspects tried before military commissions can claim some constitutional rights, including protection against evidence obtained through coercion.
The commissions, Assistant Attorney General David Kris said, should only allow evidence from detainees' voluntary statements or else risk having convictions thrown out on appeal in higher courts.
"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 told the Senate Armed Services Committee in written testimony.
Adding the safeguards upholding "due process" principles in the US Constitution would help commission convictions stand up on appeal, Kris told the panel.
His comments, echoed by the Defense Department's general counsel, Jeh Johnson, reflected a debate within the administration and in Congress over how to prosecute detainees under revised rules for the controversial military tribunals.
Republican Senator John McCain questioned the Justice Department official's view, saying he was surprised to hear that terror suspects at Guantanamo, the US naval base in southern Cuba where 229 "war on terror" detainees remain, enjoyed constitutional protections.
"I did not know, nor know, of any time in American history where enemy combatants were given rights under the United States Constitution," McCain said.
The US Navy's judge advocate general, Vice Admiral Bruce McDonald, told the senators he rejected the Justice Department's opinion.
The admiral argued that the legal principle of voluntary statements from the accused made sense in ordinary criminal cases but was impractical for the military commissions, which he said were handling suspects picked up on the battlefield.
Instead, McDonald proposed a list of "considerations" to be taken into account by the presiding judge, including whether a statement was taken on the battlefield or in subsequent detention.
For detainees at the controversial prison camp facing possible prosecution, much of the evidence against them comes from "involuntary" statements in interrogations, legal analysts say.
The Senate hearing focused on a proposed bill, which McCain helped draft, that would introduce new rules for the commissions designed to make trial procedures resemble courts-martial.
In May, President Barack Obama said he would keep the military commissions set up by his predecessor, George W. Bush, to prosecute detainees at Guantanamo but pledged to reform the system.
Human rights groups sharply criticized Obama over his decision to retain the commissions and to allow for the possible indefinite detention of terror suspects.
The latest proposed changes to the commissions amounted to "tinkering," the American Civil Liberties Union (ACLU) said.
"The military commissions are fatally flawed and no amount of tinkering will fix them," ACLU senior legislative counsel Christopher Anders said in a statement.
"The system is set up to ensure convictions, not give defendants an impartial hearing."
One of Obama's first acts after taking office in January was to order a four-month suspension of the commissions.
Obama also promised to close the prison camp by January 2010.
At the hearing, administration officials said they were not ready to predict how many of the remaining detainees would be tried in federal courts, military commissions or held indefinitely.
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