Editor’s note: Ongoing coverage of the military commission hearing at Guantanamo is a collaboration between Truthout and Seton Hall University School of Law, Center for Policy and Research.

On October 18 and 19, the military commission at Guantanamo Bay heard arguments on several issues that I am sure will raise a variety of blogosphere discussion, but I want to focus on two issues that I think will ultimately serve to define this commission: the applicability of the constitution to the commission at Guantanamo, and the process by which the defense can secure witnesses.

Does the Constitution Apply?

Turning to the first question regarding the applicability of the constitution: like all the arguments last week, this one was deceptive in its apparent simplicity. While the constitution may be the supreme law of the land in the United States, its application to the defendants in the commission proceedings remains an open topic of debate. As the arguments were made by the parties, salient themes emerged.

The defense motion urged the commission to adopt the default position that the constitution does in fact apply to proceedings at Guantanamo based on the Supreme Court’s 2008 decision in Boumediene v. Bush. In Boumediene, the court considered the applicability of habeas corpus to detainees, concluding that the “great writ” applied. In its finding, the court noted four key points: first, Guantanamo Bay and the detention facilities there were not extraterritorial – they were within the jurisdiction of the United States; second, the United States had de facto sovereignty; third, constitutional rights should apply unless their application was impracticable and anomalous; and finally, the application of the suspension clause was not impracticable and therefore did apply to the detainees.

While the court only considered the question of the applicability of habeas corpus in Boumediene, the defense argued on October 18 that the underlying logic applied to the current commission hearings. Defense attorney James Connell urged the commission to find that the constitution presumptively applied unless and until the government made a showing that its application was impracticable and anomalous – the burden articulated by the court in Boumediene.

This argument is a complex one and warrants some unpacking. The question of whether or not the constitution applies drives at the heart of the dilemma these commissions present. Within the Article III courts, there is litigation over the question of which constitutional rights apply to foreign nationals in the custody of the United States. While admittedly not all rights apply in every situation, the courts have recognized a body of primary constitutional rights that are applicable in Article III courts. No such body of law exists in the context of the commission. While Boumediene certainly recognizes the possibility (and actual) applicability of the constitution over detainees, it leaves open questions of which rights apply and whether or not there should be a presumption of constitutional application in this context.

The DC Circuit’s decision last week in Hamdan, overturning the defendant’s commission conviction for material support for terrorism, offers little help. One of the questions raised in Hamdan was whether the ex post facto clause applied. In other words, could Hamdan be convicted of something that was not yet a crime when he did it. While the court rejected the material support charge, in a footnote, it indicated that it had not reached the constitutional question because it was able to make a decision on the statutory issue alone. This doctrine, known as constitutional avoidance, encourages courts to avoid reaching constitutional issues if it is unnecessary to resolve the dispute before it. In other words, if a matter can be resolved as a matter of statutory interpretation, it should be. This doctrine does not mean the constitution does not apply to a particular case, only that it should be an avenue of last resort for courts seeking to resolve applications and the meaning of statutes and the rules and standards they may promulgate.

In Guantanamo Bay, this becomes an especially loaded question. It is not apparent from the government’s briefing or argument on October 18 that they reject the application of the constitution in these proceedings. Instead, the government took the position that the commission should resist entering into a blanket ruling, and instead should consider the constitutional rights question on a case-by-case basis as the matter arises. To date, the defense, or intervenors, have filed motions implicating 12 distinct constitutional rights: the First Amendment’s rights to free speech and access to trial, the Fourth Amendment’s rights to be free from unreasonable searches and seizures, the Fifth Amendment rights to due process and a grand jury, the Sixth Amendment’s rights to compulsory process, to be present at proceedings and to counsel that is both conflict free and effective in his/her assistance, and the Eighth Amendment’s right to be free from cruel and unusual punishment.

While the commission has heard argument, or will hear argument soon, on many of these, it has not yet issued rulings on their applicability to the defendants. The defense’s request for a ruling on October 18 was about controlling the dialogue surrounding this discussion. In requesting a presumption of the applicability of the constitution in this commission, the defendants sought not only to impose the standard of Boumediene on the government, but more importantly, the burden to demonstrate that in fact, upholding constitutional rights for these defendants was not impracticable and anomalous.

Make no doubt this is both a high standard to meet, but also pushes the commission into uncharted territory regarding the constitutional parameters of the process itself. While the defense conceded that the adoption of the urged position would not preclude the doctrine of constitutional avoidance with regard to the specific rules and provisions in dispute, it would change the landscape of the discussion, shifting it unquestionably toward a larger constitutional one akin to that seen in Article III courts.

Regardless of how serving judge Army Col. James Pohl rules, this discussion will define the future conversation about the nature of these proceedings. At the end of the day, the question at the center of the debate is whether or not these defendants even have the ability to raise a constitutional challenge to the process.

Compulsory Process for the Defense

The second issue raised on October 18 by the defense, on which the commission continued to hear argument on Friday, revolved around how the defense could ensure the presence of witnesses at proceedings. Here a comparative analysis is helpful. In federal court, defendants seeking to procure the presence of a witness at a hearing or trial can do so under the Federal Rules of Criminal Procedure Rule 17 (often referred to as Rule 17). Rule 17 allows a defense attorney, as an officer of the court, to obtain a blank subpoena that can compel a witness to appear on a matter to testify and/or present documents or other tangible evidence. This Rule enshrines and facilitates what is known as compulsory process, guaranteed by the Sixth Amendment. And every day, in courthouses across the country, Rule 17 is utilized to ensure that a defendant’s right to present a defense is a meaningful one by ensuring that he/she has access to the very witnesses that can prove his/her defense or argument or cast doubt on the government’s case. At its core, Rule 17 provides the mechanism by which the defense can procure witnesses without being forced to seek the assistance of the prosecutor’s office or, more importantly, without having to reveal their case or trial strategy, or even details of the witness’s anticipated testimony. In short, the Rule makes the substantive right to compel a witness an actual, not just hypothetical one.

In this, Rule 17 promotes a true adversarial process in which both sides can present evidence and pursue theories of the case independent of one another. The courts, including the Supreme Court, have repeatedly recognized the important role the concept of reciprocal discovery plays in ensuring fair process to defendants and legitimate outcomes from trials.

But Guantanamo is different. On one level, Guantanamo is different because, unlike in other courthouses, witnesses who receive subpoenas, or agree to testify, cannot “voluntarily” appear. They may (or may not) be willing to come, but to enter the commission hearing room, a witness must receive permission from the government. This unique nature of the commission’s physical setting has influenced the creation of its procedure for witnesses. Under the rules of the military commission, the defense must provide the prosecution with the name, location and summary of the witness’s anticipated testimony. The prosecution can then refuse the witness. This is by no means the end of the process. The rule allows for the defense to appeal the prosecution’s denial to the commission itself and to seek an alternative ruling, but in many ways, this is like closing a barn door after the horse has already run out. While the federal rules, like many state court rules, require notice to both sides of the identity of witnesses, the commission rule is unique in the extent of information it requires the defense to provide the prosecution and the prosecution’s ability to deny witness requests prior to the issuance of a subpoena. This unique aspect of the commission quite literally forces the defense to choose between calling witnesses and tipping their hand as to their trial strategy. That this process should be necessitated by the government’s decision to hold the hearings on Guantanamo Bay as opposed to in an Article III court only fuels the notion that the commission, from the get-go, appears more bent towards outcome than fair process.

On October 19, Judge Pohl heard from the prosecution. While the government was willing to accept de minimis notice regarding expert witnesses – defined as composed only of the defense’s intent to call an expert – they were less willing to budge from their position with regard to lay fact witnesses. Their answer pointed out that their obligation under the Rule for Military Commissions was not to mimic federal court’s procedure, but only to provide comparable process. They went on to suggest that a proceeding more consistent with court martial process was appropriate. While there is no denying that the commission is not an Article III court, it is less clear if the analogy to court martial makes sense. As the defense has repeatedly argued, court martial serves a distinct purpose and one inconsistent with the articulated goals of the commission.

In making this argument, the government pushes the commission to adopt a procedural model that rejects complete autonomy for the defense. The prosecution sought to claim a role normally reserved for the trial judge in Article III courts as a gatekeeper to what testimony is presented at trial and what is excluded from the defense’s narrative. While there is no denying that courts do not admit irrelevant and immaterial evidence – both legal standards rooted in precedent and strong policy interests – it is a rare process indeed in which the initial determination of that standard is made by an adversary in a process, promoting an unequal power dynamic. What is unclear is if this is necessary in this process.

Beyond this, the argument, and Judge Pohl’s response to it, highlighted the constantly shifting nature of the commission’s procedure. With regard to expert witnesses, the Rule was read one way, but with regard to lay witnesses, it was read another. Listening to the arguments about the meaning and implementation of the most basic procedure, one cannot help but wonder (again) about the wisdom of seeking to invent an entirely new and vaguely defined system for these, the most important trials of our lifetime. As the parties seek to push the dialogue about the future of these hearings, a process will undoubtedly emerge, but only after much debate and delay.

What Does It All Mean?

In the end, these issues bring us back to the same place: process matters. It matters not only because it sets the rules by which the game is played, but because it determines the substance of the hearings, the narrative of the case and drives our own feelings about the outcome. If the defendants do not enjoy constitutional protections, if they are not free to control the acquisition and presentation of witnesses, then the story the case will tell is limited. In the face of this limited narrative, one cannot help but wonder what was left unsaid or unseen.