I just watched a segment of the CBS program “60 Minutes” which talked almost exclusively about the legalities of trying the “detainees” at Guantanamo Bay. But the show failed to even ask one extremely important question on which the entire show hinges, “Is Guantanamo Bay” U.S. soil. The reason for asking that is simple, the US Constitution only applies, and can only apply, to people located on US soil. As someone who has lived on foreign soil, and while in the US Army, I was always cautioned that the law of the host nation was always primary and the Uniform Code of Military Justice second. Even though we were on US bases, it did not afford us the protections of the Constitution enjoyed in the US. To wit, we could be arrested on the US base, jailed and prosecuted by the host country without any guarantee of due process, legal representation, unreasonable search and seizure, etc. It is my belief that the detainees in Cuba do not enjoy any rights of our Constitution as they were arrested and have been held outside the legal boundaries of our Constitution.
I think any sort of torture regardless of the reason is evil. It is also well-known, and long known, that a tortured person will admit to anything his torturers desire to hear just to stop the torture. It is for this reason, among others, that torture has long be specifically illegal in the US. But for however a horrible act it is, it is an offense either where it was committed, or at a world court tribunal.
The terrorists about to be tried own both the acts committed by them, the fact that they knowingly conducted a non-traditional act of war, they were not a part of any regular military, and that any justice they can expect is comparable their own world-view. That is, they are not prisoners of war and cannot expect to be treated as such. Each was captured as an individual acting upon his own will, and denying agency of any particular nation. Consider, no country, not even the one they call home, has come to their defense. Their acts are considered by the world in general as horrendous and indefensible.
The terrorists own lawyers, though well-versed in the US Constitution, were wont to offer any specific portion of the Constitution which protects these people and any rights, whether real or perceived. Their arguments, while good on US soil, truly have no standing in a courtroom outside the borders of the United States.