Military Commission Won't Say Whether US Constitution Applies to 9/11 Case (Updated)

01/15/2013 05:49 pm ET | Updated Mar 17, 2013
  • Daphne Eviatar Senior Counsel, Law and Security Program, Human Rights First

The judge presiding over the trial of the five co-defendants accused of masterminding the September 11, 2001 terrorist attacks has said he won't decide whether the U.S. Constitution applies to the case. The opinion, which was originally withheld from the public, is now available here.

Defense lawyers had filed a legal motion asking the Guantanamo Bay military commission to clarify whether the U.S. Constitution applies to the war court there, which is preparing to try the men accused of the deadliest terrorist attack ever carried out against the United States. Government prosecutors, however, argued in October that the judge shouldn't decide: "Congress clearly did not intend that every right that applies to U.S. citizens in a U.S. federal court would apply to the accused in a military commission," Clayton Trivett, a Justice Department lawyer, said at a hearing held in the Guantanamo courtroom. "We need to take this up, issue by issue, and we'll get to a determination."

In an ordinary federal court, the U.S. Constitution not only applies, but reigns supreme: no other laws may conflict with it. In the military commissions, it's not clear, because no judge has ever ruled on which parts of the Constitution apply there, other than the right of a detainee to challenge his detention in a civil proceeding in federal court -- what's known as the right to habeas corpus. Defense lawyers claim that makes it impossible for them to know how to fulfill their ethical obligations to present their clients' best defense.

No matter. On Tuesday, Colonel James Pohl, the military judge presiding over the September 11 case, ruled in favor of the government: he's decided not to decide whether the Constitution applies. Although not made immediately available, it's now been posted online. (Most documents filed in the case are kept under seal for a week or more before they're made available to the public. Some are never made available.) In his opinion, Judge Pohl says that to determine that the U.S. Constitution applies to the military commission proceedings would be "premature."

Defense attorney James Connell, who represents accused co‐conspirator Ammar al Baluchi, said in a statement issued on the day of the decision: "The United States cannot avoid the requirements of the Founding Fathers simply by holding a trial at an overseas military base... The United States must abide by the limitations contained in its foundational document, regardless of where places its tribunal."

Or not.