Lawyers Spar Over Rights for 9/11 Detainees
By JESS BRAVIN
Staff Reporter of THE WALL STREET JOURNAL.
19 October 2012
The Wall Street Journal Online

GUANTANAMO BAY, Cuba—Whether the accused Sept 11, 2001, terrorists are entitled to full constitutional rights came into sharper focus at a military-commission proceeding here Thursday. A military judge suggested that at least in one instance the defendants are getting less protection than that available to a U.S. defendant.

Col. James Pohl, presiding over the prosecution of Khalid Sheikh Mohammed and four co-defendants in the Sept. 11 terror conspiracy, told a defense attorney that his client may not enjoy the same robust right to confront prosecution witnesses that recent Supreme Court decisions have guaranteed to defendants in state and federal courts.

Defense attorneys argue that the accused terrorists are entitled to the same constitutional rights that apply in federal court— unless prosecutors can demonstrate it would be unworkable to afford them. The Supreme Court has used that standard in previous cases involving overseas participants.

A defense motion asks Col. Pohl to adopt that position, placing the burden on the government whenever it contends it can introduce evidence or take other steps outside the limits prescribed by the Bill of Rights.

The Supreme Court has issued only a handful of rulings concerning Guantanamo detainees. The most recent, the 2008 case of Boumediene v. Bush, struck down a Military Commissions Act provision that sought to strip Guantanamo detainees of habeas corpus rights, a method the Constitution provides for prisoners to contest unlawful detentions.

Using language from longstanding precedents, the opinion by Justice Anthony Kennedy found that habeas corpus rights should extend to Guantanamo because the government had not demonstrated it would be "impracticable and anomalous" to provide them

Defense attorney James Connell, representing defendant Ali Abdul Aziz Ali, asked Col. Pohl to follow the same method when determining the rights of the defendants to obtain witnesses.

In response, prosecutor Clay Trivett said that Congress didn't intend to provide commissions defendants "every constitutional right that would apply to a U.S. citizen in federal court."

Mr. Trivett said the government preferred the judge to leave unanswered whether the Constitution applied in general. Instead, he suggested, the judge should examine the question only if necessary to resolve specific issues that might arise.

For instance, "there may never be a Fourth Amendment challenge here, depending how evidence works out," he said, referring to the constitutional ban on "unreasonable searches and seizures."

Col. Pohl didn't immediately rule on the defense motion about witnesses.

The Sixth Amendment affords a defendant "compulsory process for obtaining witnesses in his favor." Amendments made in 2009 to the Military Commissions Act provide Guantanamo defendants "the opportunity to obtain witnesses and evidence...comparable to" that provided in federal district court.

Mr. Connell said the Pentagon's implementing rules weren't comparable. In federal court, defense attorneys have great autonomy in issuing subpoenas and obtaining witnesses, while military-commission rules require them to submit such requests to the prosecutor, who decides whether to provide the witness. Defense attorneys can ask the military judge to overrule a prosecutor who denies their witness requests.

Government attorneys say that method resembles that used in courts-martial, which they say is the appropriate model for military commissions.

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