Terrorism Trials & Investigations

Order Denying the Constitution's Presumptive Application in the 9/11 Case

By Wells Bennett
Thursday, January 17, 2013, 2:49 PM

Remember that order, in which the military judge denied a defense request to presume the Constitution's application in the 9/11 case?   The ruling wasn't available earlier---it hadn't yet cleared security review--but it is now.

From the commission's ruling:

2. The Defense's requested relief, that the Commission "hold that the Constitution is presumed to apply in these proceedings," presents a nonjusticiable question with two correlated

a. First, the Defense is requesting an advisory opinion that is not within the province of this Commission to decide. In order for a court (an Article I court, including a military commission, or an Article III court) to decide a case, "there must be 'a real and substantial
controversy adm itt ing of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.'" Federal Express Corp. v. Air Line Pilots Ass'n, 67 F.3d 96 1, 963-64 (D.C. Cir. 1995), quoting Aetna Life Ins. Co. v. Haworth, 300 U.S . 227, 241 ( 1937). Accordingly, while it may be appropriate to decide discrete Constitutional application questions in future motions, no specific Constitutional issue "admitting of specific relief" is before this Commission in this motion.

b. Second, the issue is not yet ripe for decision.

( l) Deciding this issue would result in a premature judgment based on a theoretical dispute over the applicability of the U.S . Constitution on discrete subissues within the Commission proceedings. Abbott Laboratories v. Gardner, 387 U.S. 136 ( 1967) . Issues are ripe for decision when they present concrete, discrete controversies which seek specific, deliverable relief based on law, whether that law is Constitutional or otherwise, and when failure to decide would present hardship to the parties. Id. at 148-49. See also American Petroleum Institute v. Environmental Protection Agency, 683 F.3d 382, 386 (D.C. Cir. 20 12) ("The ripeness doctrine generally deals with when a federal court can or should decide a case. Part of the doctrine is subsumed into the [judicial] requirement of standing, which requires a petitioner to allege inter alia an injury-in-fact that is 'iimminent' or 'certainly impending. "')

(2) In its motion, the Defense simply seeks to include or exclude a particular line of argument, without reference to a definite, tangible legal issue to be decided which can result in a specific legal remedy. Moreover, there is no hardship to either party imposed by requiring each party to make its best Constitutional, statutory, regulatory, and international legal arguments on any particular discrete legal issue properly before this Commission; doing so requires the parties to adjust their litigation strategies and legal interpretive theories, but no specific legal dispossession results by this Commission's decision not to render advisory opinions on issues not yet ripe for decision.