Daphne Eviatar
January 16, 2013

In an opinion not yet publicly released by the Office of Military Commissions, the judge presiding over the trial of the five co-defendants accused of masterminding the September 11, 2001 terrorist attacks has said he won’t decide whether the U.S. Constitution applies to the case.

Defense lawyers had filed a legal motion asking the Guantanamo Bay military commission to clarify whether the U.S. Constitution applies to the war court there, which is preparing to try the men accused of the deadliest terrorist attack ever carried out against the United States. Government prosecutors, however, argued in October that the judge shouldn’t decide: “Congress clearly did not intend that every right that applies to U.S. citizens in a U.S. federal court would apply to the accused in a military commission,” Clayton Trivett, a Justice Department lawyer, said at a hearing held in the Guantanamo courtroom. “We need to take this up, issue by issue, and we’ll get to a determination.”

In an ordinary federal court, the U.S. Constitution not only applies, but reigns supreme: no other laws may conflict with it. In the military commissions, it’s not clear, because no judge has ever ruled on which parts of the Constitution apply there, other than the right of a detainee to challenge his detention in a civil proceeding in federal court — what’s known as the right to habeas corpus. Defense lawyers claim that makes it impossible for them to know how to fulfill their ethical obligations to present their clients’ best defense.

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