In an ordinary federal court held on U.S. soil, it's clear what rules apply. There are the laws passed by Congress, precedent from cases decided in the federal appeals courts and, of course, the U.S. Constitution, which reigns supreme. None of the other laws can conflict with it.
That's not necessarily the case in the military commissions at Guantanamo Bay, where a commission is now holding pre-trial hearings in the most important terrorism case in U.S. history. Just as it's often not clear what legal rules apply on the U.S. military base in Cuba, the U.S. government won't even say if it believes the U.S. Constitution applies.
Today, lawyers for the five alleged co-conspirators in the September 11th terrorist attacks asked the judge to please let them know: Are we operating under a Constitutional framework here or not? Exactly what Constitutional rights do our clients have?
In the 11 years since the first military commissions were created at Guantanamo, the question has never been answered.
Judge James Pohl, following the government's lead, has so far continued that tradition in this case. "Give me a concrete example, and I'll tell you what applies," he said Thursday morning.
Prosecutors in the 9/11 case argue the judge shouldn't answer the question until a specific Constitutional question arises. "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," asserted Clayton Trivett, a lawyer from the Justice Department. "We need to take this up, issue by issue, and we'll get to a determination."
Defense lawyers say that makes it impossible to adequately prepare their cases. Of the 25 pre-trial motions scheduled to be heard this week at Guantanamo, many raise Constitutional questions, and the government explicitly disagreed with the defense on only one of those. Does that mean the government concedes the Constitution applies on all the others?
"The court should presume the Constitution applies," argued James Connell, lawyer for Ammar al-Baluchi, this morning. Connell and the other defense lawyers argue that according to the Supreme Court's reasoning in Boumediene v. Bush, which found that Guantanamo detainees have a right to challenge their detention in federal court: "The burden is on the government to show it doesn't; the government must show it's impractical and anomalous under the circumstances."
The "impractical and anomalous" standard comes from the Supreme Court in Boumediene. There, the court found that because Guantanamo is wholly controlled by the U.S. government, the court would assume the right to habeas corpus applied because the result would not be "impractical and anomalous." That's now the applicable standard, argues the defense in this case.
Judge Pohl didn't refute that legal standard, but sounded skeptical that he should decide the issue now. "Are you asking for an advisory opinion?" he asked.
No, Connell said. "We're asking for a legal framework."
In the afternoon, Judge Pohl moved onto the next motion -- which involves a Constitutional claim -- without deciding whether the Constitution applies.
Such are the Guantanamo military commissions that defense lawyers may well have to represent their clients in a death penalty case involving the murder of nearly 3,000 Americans and not know before trial what Constitutional rights, if any, their clients have.