9/11 cases: Do broad constitutional rights apply to Guantánamo detainees?
US Supreme Court has identified some rights that apply to terrorism suspects at the US detention camp. At a pretrial hearing at Guantánamo, detainees' lawyers argue that the Constitution should be presumed to be in effect during war-crimes trials.
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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.Skip to next paragraph
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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.