US constitutional rights should be presumed to apply at the
historic war crimes tribunal of alleged 9/11 mastermind Khalid
Sheikh Mohammed, defense lawyers argued on Thursday in a pretrial
hearing at Guantnamo.
Lawyers for Mr. Mohammed and his four alleged co-conspirators
urged the judge presiding over the military commission to issue a
pretrial order proclaiming that the five alleged terrorism suspects
on trial are presumed to enjoy the same level of constitutional
protection they would receive in a US federal courtroom.
The lawyers told the judge, US Army Col. James Pohl, that if a
dispute arose over whether to afford a constitutional protection to
the defendants, it should be up to government lawyers to prove that
the right doesnt apply at the US Naval Base at Guantnamo Bay, Cuba.
Under the current situation, it will up to defense lawyers to
prove that the specific constitutional right at issue does apply at
We are not asking for a blanket declaration that every
constitutional provision imaginable applies at Guantnamo Bay, said
James Connell, a lawyer for Ali Abdul Aziz Ali. Instead, he said,
defense lawyers are asking the judge to adopt a presumption that the
Constitution applies to the proceedings.
Arent you asking me for an advisory opinion? Judge Pohl asked,
referring to the practice that judges avoid issuing broad legal
pronouncements about hypothetical issues.
No sir. I'm asking for a procedural framework, Mr. Connell
The issue of what rights Mohammed and his codefendants will enjoy
while on trial is a controversial question. The Bush administration
decided to locate its Al Qaeda detention camp, and the military
commissions multimillion-dollar courtroom, at Guantnamo in part
because it is beyond the jurisdiction of US courts and their
mandatory application of constitutional standards.
Nonetheless, in a series of rulings, the US Supreme Court has
established that at least some constitutional rights apply to
detainees at Guantnamo. But it is unclear how many rights apply.
At one point, the Obama administration decided that Mohammed and
his codefendants should be put on trial in federal court in New York
City, complete with full constitutional protections. That decision
was later rescinded. The case against Mohammed was returned to
Now, the question is, which constitutional rights will apply at
Mohammeds war crimes tribunal.
Prosecutors argue that Judge Pohl should avoid making any broad
pronouncements about what rights may or may not apply in a Guantnamo-
based war crimes tribunal. They say Pohl should wait until a
specific dispute arises that is tied to a specific defendant.
Our position is that Congress clearly did not intend that every
constitutional right would apply to the accused in military
commissions at Guantnamo, said Clayton Trivett, a Justice Department
lawyer on the prosecution team.
He said the only proper way for the court to address the question
was on a case-by-case basis as the issue arises in the context of
the ongoing case. …