“To date, no court has reached the question of whether any of the Sixth Amendment applies at Guantanamo”

December 30th, 2011

Steve Vladek writes about an interesting question that is still open in the wake of the Detainee cases:

There’s been a fair amount of media and blog attention to the proposed new rules governing (and substantially widening) the government’s access to communications between military commission defendants and their counsel. The draft order (courtesy of the Miami Herald) ishere; the AP story is here; the ABA’s letter of protest to Secretary Panetta is here.

Separate from the policy side of this story, there’s a critical legal issue here that hasn’t yet been resolved: The AP story reports that one of the objections lodged by counsel for the defendants is that the new rules violate the defendants’ constitutional right to counsel. Of course, that assumes that the Guantanamo detainees, as non-citizens detained outside the territorial United States, have a Sixth Amendment (or perhaps a Fifth Amendment) right to counsel.