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McCain, Lieberman Schooled on Rule of Law by Kris, Johnson

Last week, Assistant Attorney General David Kris and Department of Defense General Counsel Jeh Johnson appeared before the Senate Armed Services Committee to talk about Military Commissions. David Kris got into a little bit of a discussion with Sen. John McCain because McCain was shocked to learn that the Constitution may operate in ways that apply to non citizens. In his defense, McCain is not a lawyer, but I didn’t think this was a novel concept. Yet, Kris had to patiently explain the fundamentals:

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.

Joseph Lieberman took an even more radical view: that acts of murder committed by terrorists on US soil should somehow be immune from prosecution under Title 18 of the US Code (Title 18 is the federal criminal code). I’m sorry, that’s a "WTF?" moment for me. (Please note, I did NOT say "blowjob.")

Until President Bush decided to IGNORE warnings that terrorists wanted to use planes as bombs against major US targets and waived it off with a dismissive "you’ve covered your ass" to his briefer, the FBI and the Department of Justice, and particularly Mary Jo White’s USAO SDNY, did an astoundingly good job of prosecuting terrorists who committed crimes against US citizens at home and abroad. They even managed to prosecute terror plots BEFORE they were executed, such as the Millennium bomb plot and the Day of Terror plot.

Yet, Joe Lieberman thinks that where it is possible to hold fair trials in open court and put murderers in prison, the DOJ should be prohibited from doing that:

"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, as well as the law of war, so we feel strongly that both alternatives should exist," Johnson added.

"Well, I respectfully disagree," Lieberman said.

You can’t make this stuff up.

I am gratified to see that New York Times thinks Messrs Kris and Johnson have provided good legal counsel to the Committee. From the Times editorial page:

After years of watching government lawyers undermine the rule of law, it has been especially gratifying to see President Obama’s lawyers urging senators to do even more to create a system that will fairly try prisoners and no longer shame Americans.

At a hearing last week, Defense and Justice Department lawyers suggested major improvements in the Levin bill, which seeks to replace the 2006 Military Commissions Act. Most important, they said tribunals may not violate the Constitution’s due process requirements.

[emphasis added]

What is disturbing to me is the notion that, in order to avoid admitting what horrible assaults were committed on the Constitution, the Geneva Conventions, and the notion of Rule of Law, members of Congress are willing to continue the abuses of the past. All so they don’t have to admit their own past, rubber stamping, mistakes. Here, Obama administration lawyers are doing something to return our country to a sound legal footing, and they are getting spluttering flack from senators who have been around long enough to know how bankrupt their support for continuing the illegal and immoral abuses of the past eight years really is.

I hope Chairman Levin was taking notes during the Kris and Johnson testimony, and that he incorporates their wise advice into the bill currently in committee.

Oh, and Jeh and David: Nice job. Big attaboys all around.

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Cynthia Kouril

Cynthia Kouril

Cynthia Kouril is a former Special Assistant United States Attorney in the Southern District of New York under several different U.S. Attorneys, former counsel to the Inspector General for the N.Y.C. Department of Environmental Protection where she investigated threats to the New York City water supply and other environmental crimes, as well as public corruption and fraud against the government, former Examining Attorney at the N.Y.C. Department of Investigation and former Capital Construction Counsel at New York City Parks and Recreation.
She is now in private practice with a colleague whom she met while at the USA Attorney's Office. Ms. Kouril is a member of the Steering Committee, National Committeewoman and Regional Coordinator for the New York Democratic Lawyers Council, a member of the Program Committee of the Federal Bar Council and a member of the Election Law Committee at the Association of the Bar of the City of New York. She is active in several other Bar Associations.
Most important of all, she is a soccer mom.

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