Terrorism Trials: Military Commissions

On the Constitution's Presumptive Application in the 9/11 Case

By Wells Bennett
Tuesday, January 15, 2013, 5:31 PM

Judge James Pohl apparently has rejected the defense's bid, in the 9/11 case, to presume (subject to rebuttal) the Constitution's application to military commission proceedings.

We don't have the court's order yet, but we do have this statement from James Connell III, lawyer for 9/11 accused Ammar al-Baluchi.  It provides, in full:

Today, the military commission ruled (AE057C) that it will not presume that the U.S. Constitution governs proceedings at the Guantanamo Bay military commissions. “The United States cannot avoid the requirements of the Founding Fathers simply by holding a trial at an overseas military base,” said James Connell, counsel for accused logistical co‐conspirator Ammar al Baluchi. “The United States must abide by the limitations contained in its foundational document, regardless of where places
its tribunal.”

At a hearing in October, the defense asked the military commission to presume that the United States Constitution governed its actions unless the prosecution demonstrated that a particular protection was inapplicable (AE057). The defense relied on the 2008 case of Boumediene v. Bush, in which the Supreme Court ruled that Constitutional provisions applied at Guantanamo Bay unless they
are “impracticable and anomalous.” The prosecution opposed this motion, arguing that it was unclear which provisions of the Constitution governed Guantanamo Bay (AE057A).

Today, the military commission sided with the prosecution and denied the defense request to presume the applicability of the Constitution. The military commission ruling (AE057C) will be posted on the military commissions website following a security review.