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Judge in 9/11 case weighs whether Constitution applies at Guantanamo
October 18, 2012 / 8:16 PM / in 5 years

Judge in 9/11 case weighs whether Constitution applies at Guantanamo

GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) - The Guantanamo tribunal judge should deal with constitutional challenges individually as they arise rather than make a blanket presumption the U.S. Constitution applies in the trial of five men accused of plotting the September 11 attacks, a U.S. prosecutor argued on Thursday.

The flag over a war crimes courtroom in Camp Justice at US Naval Base Guantanamo Bay in Cuba in this photo reviewed by the U.S. Department of Defense on October 17, 2012, day three of pre-trial hearings for the five Guantanamo prisoners accused of orchestrating the 9/11. REUTERS/Michelle Shephard/Pool

The matter arose in a pretrial hearing for alleged September 11 mastermind Khalid Sheikh Mohammed and four other Pakistani, Yemeni and Saudi captives facing charges that could lead to their execution.

They are being tried at the Guantanamo Bay U.S. Naval Base in a tribunal system that Congress established to try non-U.S. citizens on terrorism charges.

Critics have long charged that the Guantanamo base in Cuba was chosen to hold such detainees mainly because former President George W. Bush’s administration believed it would put them outside the reach of U.S. law.

The U.S. Supreme Court ruled in 2008 that although they were non-citizens held outside the United States, Guantanamo prisoners had the constitutional “habeas corpus” right to challenge their detention in court and make the government show evidence for holding them.

It said the United States had “de facto sovereignty” because the Cuban base is entirely under U.S. control.

The sun rises over the U.S. detention center Camp Delta at US Naval Base Guantanamo Bay in Cuba on October 18, 2012 in this photo reviewed by the U.S. Department of Defense. REUTERS/Michelle Shephard/Pool

It did not address whether Guantanamo detainees had other rights guaranteed by the U.S. Constitution, such as the right to due process, the right not to be subjected to cruel and unusual punishment, or the right to confront accusers.

Lawyers defending the 9/11 suspects asked the judge, Army Colonel James Pohl, to issue an advisory opinion that the Constitution applied to the tribunals, except where the prosecution can prove that recognizing a particular right would be “impractical and anomalous.”

Pre-dawn light shines on the compound at Camp Delta at US Naval Base Guantanamo Bay in Cuba on October 18, 2012 in this photo reviewed by the U.S. Department of Defense. REUTERS/Michelle Shephard/Pool

Prosecutor Clay Trivett said that when Congress enacted the law underpinning the Guantanamo tribunals, it clearly did not intend for defendants to have all the rights they would have had if they were tried in the U.S. federal courts.

But he urged the judge to avoid a sweeping, generalized ruling, calling it premature.

“It’s not fair to ask you for an advisory opinion on issues that may not arise,” Trivett said. “We need to take this up issue by issue.”

Pohl took the arguments under advisory, but did not indicate when he would rule.

Editing by Kevin Gray and Peter Cooney

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