News Release

Does the Constitution Even Apply at Guantanamo? Defense teams file a sealed motion seeking a ruling.

Washington, DC (July 17, 2012) – “Does the Constitution govern Gitmo?”

That is a question raised yesterday by James Connell, death penalty counsel for accused 9-11 conspirator Amar al-Baluchi, and several other 9-11 defense counsel. The defense lawyers filed a motion yesterday arguing that because the government is seeking to execute their clients, the commissions must provide them with due process of law and the full range of constitutional protections provided any death penalty defendant.

“It is time for the government to acknowledge that it cannot operate outside the Constitution, even at Guantanamo,” Connell said in a statement. “If the government maintains that it can operate beyond the reach of its own Constitution, the military commission will have to address the issue at [a future] hearing.”

The National Association of Criminal Defense Lawyers has maintained for over a decade that the full panoply of rights, including due process, the right to confront witnesses, the right to present a defense, and the right to effective assistance of counsel, must be a part of the commissions process.

According to the statement, David Kris, then-Assistant Attorney General and head of the Justice Department’s National Security Division, testified before Congress in 2009 that, “Our analysis . . . is that the due process clause applies to military commissions and imposes a constitutional floor on the procedures that would govern such commission, including against enemy aliens.” But Connell reports that the government’s chief prosecutor, Brigadier General Mark Martins, told the military judge presiding over al Nashiri’s case last April that he was “aware of no authority” that would extend the right of due process of law to Guantanamo defendants.

The motion, AE057 Defense Motion to Recognize That the Constitution Governs the Military Commissions, is under seal pending a security review. But according to the defense statement, it argues that the framework the Supreme Court established in Boumediene v. Bush (2008) requires that constitutional protections, including the right to due process, govern the military commissions proceedings unless the prosecution can show that the protections of a particular right would be “impractical and anomalous.”

The judge presiding over the 9-11 proceedings, Army Col. James Pohl, yesterday continued the next set of hearings until August 22-26, after Ramadan.

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Jack King, Director of Public Affairs & Communications, (202) 465-7628 or

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.