Sen. John McCain (R-Ariz.), the ranking member of the Senate Armed Services Committee, wants to know why the Justice Department’s David Kris thinks the military commissions need to withstand constitutional scrutiny by the courts. Does this mean the administration thinks the detainees might have constitutional rights, McCain asked. “Yes, they do,” Kris answered. “Our analysis, senator, is that the due-process clause applies to military commissions and imposse a constitutional floor on procedures governing these commissions including against enemy aliens.” McCain was incredulous. What constitutional rights? Kris replied that the issue was what the courts have consistently found the commissions process needs to include. “There’s a serious risk the courts would find a voluntariness standard” for a statement made by a defendant entered into evidence “is required by the due process clause.”
McCain replied that Kris’ statement means the Obama administration believes “enemy combatants” have constitutional rights similar to those of “U.S. citizens.” Kris quickly rejoindered: “No, not at all, I don’t think that’s right,” he said, clarifying that his point is about “due process rights as applied to the commissions.”
Interestingly, McCain’s longstanding ally, Sen. Lindsey Graham (R-S.C.) elevated the discourse later, saying it wasn’t an issue of the accused having constitutional rights, but rather the fact that “the courts will look at these trials,” Graham said later.
“That’s essentially exactly what I was saying to Sen. McCain,” Kris replied.