9/11 cases: Do broad constitutional rights apply to Guantánamo detainees?

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 Guantánamo.

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 doesn’t apply at the US Naval Base at Guantánamo Bay, Cuba.

Under the current situation, it will up to defense lawyers to prove that the specific constitutional right at issue does apply at Guantánamo.

“We are not asking for a blanket declaration that every constitutional provision imaginable applies at Guantánamo 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.

“Aren’t 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 replied.

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 commission’s multimillion-dollar courtroom, at Guantánamo 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 Guantánamo. 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 That decision was later rescinded.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 Guantánamo.

Now, the question is, which constitutional rights will apply at Mohammed’s war crimes tribunal.

Prosecutors argue that Judge Pohl should avoid making any broad pronouncements about what rights may or may not apply in a Guantánamo-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 Guantánamo,” 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.

Pohl recognized that his court sits in an unusual posture with extremely limited Supreme Court guidance on the scope of constitutional coverage, and only three appeals court decisions dealing with completed military commission cases.

“Is there any decision that the Constitution will necessarily apply to your client?” the judge asked James Harrington, a lawyer for Ramzi bin al-Shibh.

In 2008, the Supreme Court ruled that the constitutional protection of habeas corpus extended to the Guantánamo detainees. After answering that question, the high court did not address the next issue: whether other constitutional rights also apply at Guantánamo.

It is that unresolved question that now confronts Pohl.

“The Supreme Court is saying we didn’t get to it, and we don’t have to,” Mr. Harrington told the judge.

“Does the Constitution apply to your client in this case as in federal court?” the judge asked.

“Yes sir,” Harrington said.

Critics of the military commission process say it was specifically designed by Congress to offer a stripped-down version of justice that would make it easier to sidestep well-established defendant rights that might make it more difficult to win convictions. They say these failings are even more serious given that the government is seeking the death penalty against each of the four defendants.

Supporters of the commission process insist that Mohammed and other defendants are receiving more than enough due process and other rights in their commission trials. They say the commission process is necessary to protect sensitive intelligence sources and methods.  

The issue arose on the fourth of five days of pretrial hearings at a high-security courtroom on the naval base. The hearings are needed to set rules and resolve emerging legal issues in advance of a war crimes tribunal convened at Guantánamo. No date has yet been set for a trial.

Mohammed is accused of organizing and directing a terrorism plot involving the coordinated hijacking of four commercial aircraft and crashing the planes into the Pentagon and World Trade Center on Sept. 11, 2001. The plot killed nearly 3,000.

The four codefendants – Walid bin Attash, Mr. Shibh, Mr. Ali, and Mustafa al-Hawsawi – are accused of playing key supporting roles in helping the hijackers with logistics prior to the attack. They are charged with violating the law of war by committing the crimes of terrorism, conspiracy, hijacking, murder, and attacking civilians and civilian property.

The Defense Department is permitting members of the media to monitor the hearings both at Guantánamo and via a video feed at Fort Meade, Md.