The matter arose in a pretrial hearing for alleged Sept. 11 mastermind Khalid Sheikh Mohammed and four other Pakistani, Yemeni and Saudi captives facing charges that could lead to their execution.

They are being tried at the Guantanamo Bay U.S. Naval Base in a tribunal system that Congress established to try non-U.S. citizens on terrorism charges.

Critics have long charged that the Guantanamo base in Cuba was chosen to hold such detainees mainly because former President George W. Bush’s administration believed it would put them outside the reach of U.S. law.

The U.S. Supreme Court ruled in 2008 that although they were non-citizens held outside the United States, Guantanamo prisoners had the constitutional “habeas corpus” right to challenge their detention in court and make the government show evidence for holding them.

It said the United States had “de facto sovereignty” because the Cuban base is entirely under U.S. control.

It did not address whether Guantanamo detainees had other rights guaranteed by the U.S. Constitution, such as the right to due process, the right not to be subjected to cruel and unusual punishment, or the right to confront accusers.

Lawyers defending the 9/11 suspects asked the judge, Army Colonel James Pohl, to issue an advisory opinion that the Constitution applied to the tribunals, except where the prosecution can prove that recognizing a particular right would be “impractical and anomalous.”

Prosecutor Clay Trivett said that when Congress enacted the law underpinning the Guantanamo tribunals, it clearly did not intend for defendants to have all the rights they would have had if they were tried in the U.S. federal courts.

But he urged the judge to avoid a sweeping, generalized ruling, calling it premature.

“It’s not fair to ask you for an advisory opinion on issues that may not arise,” Trivett said. “We need to take this up issue by issue.”

Pohl took the arguments under advisory, but did not indicate when he would rule. DM

Photo: Khalid Sheikh Mohammed, (2nd R) the alleged mastermind of the September 11 attacks, addresses the judge during the third day of pre-trial hearings in the 9/11 war crimes prosecution as depicted in this Pentagon-approved courtroom sketch at the U.S. Naval Base Guantanamo Bay, Cuba, October 17, 2012. REUTERS/Janet Hamlin