“Aren’t you asking me for an advisory opinion?” Judge Pohl asked, referring to the practice that judges avoid issuing broad legal pronouncements about hypothetical issues.
“No sir. I'm asking for a procedural framework,” Mr. Connell replied.
The issue of what rights Mohammed and his codefendants will enjoy while on trial is a controversial question. The Bush administration decided to locate its Al Qaeda detention camp, and the military commission’s multimillion-dollar courtroom, at Guantánamo in part because it is beyond the jurisdiction of US courts and their mandatory application of constitutional standards.
Nonetheless, in a series of rulings, the US Supreme Court has established that at least some constitutional rights apply to detainees at Guantánamo. But it is unclear how many rights apply.
At one point, the Obama administration decided that Mohammed and his codefendants should be put on trial in federal court in New York City, complete with full constitutional protections. That decision was later rescinded. The case against Mohammed was returned to Guantánamo.
Now, the question is, which constitutional rights will apply at Mohammed’s war crimes tribunal.
Prosecutors argue that Judge Pohl should avoid making any broad pronouncements about what rights may or may not apply in a Guantánamo-based war crimes tribunal. They say Pohl should wait until a specific dispute arises that is tied to a specific defendant.
“Our position is that Congress clearly did not intend that every constitutional right would apply to the accused in military commissions at Guantánamo,” said Clayton Trivett, a Justice Department lawyer on the prosecution team.