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Constitution May Not Apply to Sept. 11 Defendants

January 15, 2013

The military judge overseeing the prosecution of Khalid Sheikh Mohammed and four other men accused of plotting the Sept. 11, 2001, terrorist attacks ruled that the U.S. Constitution may not always apply in the case, a lawyer for one of the defendants said.

U.S. Army Colonel James Pohl said today that there won’t be a “presumption” that the five defendants are protected by legal rights afforded by the Constitution, according to James Connell, an attorney for Ammar al Baluchi, a nephew of Mohammed’s who allegedly helped finance the attacks. Instead, the judge will make individual rulings as to whether the Constitution applies in particular instances, he said.

“We have to debate at each hearing whether the Constitution applies,” Connell said in an interview after distributing an e-mail announcing the ruling. “We have to fight it out” one-by-one.

The decision itself remains classified and isn’t publicly available, he said. Army Lieutenant Colonel Todd Breasseale, a Pentagon spokesman, didn’t immediately respond to an e-mailed request for comment on the decision.

The question of whether the Constitution applies is one of the critical legal issues in the prosecution before the military tribunal at Guantanamo Bay, Cuba.

‘Sweeping Pronouncements’

In opposing the defendants’ motion to recognize the Constitution, government prosecutors argued the issue is “unripe for adjudication,” according to court documents. They urged the judge not to issue a “sweeping pronouncement” on constitutional rights in military tribunals that would be “outside the context of any concrete dispute over a particular substantive or procedural issue.”

Hearings are scheduled to resume on Jan. 28 in Guantanamo Bay. One issue before the court is whether the government must preserve still-existing evidence from so-called black sites where the defendants were allegedly tortured.

The judge will also weigh whether the government must surrender to the defense documents from the administration of President George W. Bush about the U.S. interrogation program.

The case is U.S. v. Mohammed, Military Commissions Trial Judiciary (Guantanamo Bay, Cuba).

To contact the reporters on this story: David Glovin in New York at; David Lerman in Washington at

To contact the editor responsible for this story: Michael Hytha at

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