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9/11 pretrial hearings debate rules for Constitution's applicability

government lawyers and those representing five men, including Khalid Sheikh Mohammed, who are accused of plotting the 9/11 terror attacks, wrangled before a military judge over procedures that will largely determine the men’s fate and the degree to which their trial by military commission is afforded legitimacy by outside observers.

Arguments heard during pretrial hearings held October 15-19 included whether the U.S. Constitution should be presumed to apply to commission proceedings, thus affording the defendants – who are charged with war crimes including attacking civilians and civilian objects, murder, destruction of property, hijacking, terrorism and conspiracy as a result of their alleged involvement in the September 11, 2001 attacks that killed nearly 3,000 people – the same level of constitutional rights they would enjoy if their case was being tried in federal court.

Three years ago, Attorney General Eric Holder announced the Justice Department’s plan to transfer the five men’s original military trial from Guantanamo to the Southern District of New York, where the men would be tried instead in federal court. The decision, however, sparked an uproar by local officials and Congress members, who shortly thereafter placed funding restrictions in annual legislation to limit the executive branch’s ability to transfer Guantanamo detainees to the United States. The move effectively prohibits any funds being used to bring such detainees into the country for any purpose, including federal trial. As a result, charges were refiled and pretrial military commission hearings for the five men began anew last spring.

On the fourth day of hearings last month, defense lawyers told U.S. Army Col. James Pohl, the military judge presiding over the case, that if a dispute arose over whether to grant the defendants a constitutional protection, it should be the prosecution’s burden to demonstrate that the right does not apply to the proceedings at Guantanamo. “We are not asking for a blanket declaration that every constitutional

provision imaginable applies at Guantanamo Bay,” James Connell, a lawyer for one of the accused, said, adding he sought from the judge an order that would provide a “procedural framework.” As it stands now, it is up to defense attorneys to show that specific constitutional rights apply to their clients.

Government attorneys, however, urged Judge Pohl to decide the issue on a case-by-case basis when a specific dispute arises for each defendant and to avoid making any sweeping pronouncement about which constitutional rights might apply to the trial. “Our position is that Congress clearly did not intend that every constitutional right would apply to the accused in military commissions at Guantanamo,” said Justice Department lawyer and prosecution team member Clayton Trivett.

Judge Pohl acknowledged having little Supreme Court precedence available to help guide him. In 2008, the Supreme Court held in Boumediene v. Bush that detainees held at Guantanamo were allowed to file habeas corpus petitions in federal court to challenge the legality of their detentions, which Congress had tried to prevent when it passed the Military Commissions Act of 2006 (MCA 2006). Justice Anthony Kennedy’s opinion for the Boumediene 5-4 majority used an impracticability test – basically, a factual determination of whether it would be impractical to apply a constitutional right – to find the great writ under the Constitution’s Suspension Clause, Art. I, Sec. 9, Cl. 2, applied to Guantanamo Bay. The case, however, made no mention whether other constitutional rights also might apply.

Defense counsel Connell argued the Court’s use of an impracticability test and failure to explicitly limit such a test to only the Suspension Clause, among other arguments, supported a presumption that other constitutional provisions apply. Trivett, the government attorney, read the Court’s Boumediene decision narrowly and argued the Court could have stated the Constitution applied generally to Guantanamo, but it did not do so.

The second day of proceedings earlier in the week also were overshadowed by a decision announced by the U.S. Court of Appeals for the District of Columbia Circuit that overturned the war-crimes conviction of Salim Hamdan, a Yemeni man and former driver for Osama bin Laden, who was found guilty by a military commission in 2008 of providing material support for terrorism. The unanimous decision held that Hamdan’s conviction, which was based on his actions between 1996 and 2001, could not stand because the international law of war did not recognize material support for terrorism as a war crime and the court did not read the MCA 2006, which authorized military commissions and made material support a crime, to apply retroactively when Congress passed it.

While the D.C. Court of Appeals’s most recent Hamdan decision was not believed to affect the military trial of Mohammed and his co-defendants because they are not charged with material support, lawyers for Mustafa al-Hawsawi, one of the 9/11 accused, filed November 6 a motion to dismiss the charges against their client for lack of jurisdiction under the rationale of Hamdan: namely, that the government must “allege offenses that were crimes under the law of war at the time that conduct occurred.” The Hamdan decision also may jeopardize the cases of other suspected terrorists whom the government has charged or intended to charge with material support.

The resolution of these disputes is important to bolster the perceived credibility of the military commissions, which have been retooled in various ways since 2004, including the Military Commissions Act of 2009, because suspicion of their use continues to have real world national security implications. A case in point: five other terror suspects were finally extradited last month to the U.S. after assurances were given to United Kingdom officials that the U.S. would try the men not in military commissions but in civilian courts.


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