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) is here; 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. Below the fold, I attempt to explain why this is, at minimum, an open question (albeit one that I think should be answered in the affirmative).
To date, no court has reached the question of whether any of the Sixth Amendment applies at Guantanamo (Kiyemba I / III, of course, appears to stand for the proposition that the Fifth Amendment's Due Process Clause does not apply). The standard citation for the proposition that the Sixth Amendment doesn't apply to military commissions is Ex parte Quirin. Critically, though, all Quirin held is that the Sixth Amendment's right to jury trial in criminal cases doesn't apply to "offenses committed by enemy belligerents against the law of war." As Chief Justice Stone explained,
The Fifth and Sixth Amendments, while guaranteeing the continuance of certain incidents of trial by jury which Article III, § 2 had left unmentioned, did not enlarge the right to jury trial as it had been established by that Article. Hence petty offenses triable at common law without a jury may be tried without a jury in the federal courts, notwithstanding Article III, § 2, and the Fifth and Sixth Amendments. Trial by jury of criminal contempts may constitutionally be dispensed with in the federal courts in those cases in which they could be tried without a jury at common law. Similarly, an action for debt to enforce a penalty inflicted by Congress is not subject to the constitutional restrictions upon criminal prosecutions.
All these are instances of offenses committed against the United States, for which a penalty is imposed, but they are not deemed to be within Article III, § 2 or the provisions of the Fifth and Sixth Amendments relating to ‘crimes' and 'criminal prosecutions'. In the light of this long-continued and consistent interpretation we must concluded that § 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trials by military commission, or to have required that offenses against the law of war not triable by jury at common law be tried only in the civil courts.
Whatever else may be said of this analysis, the one point that seems clear is that Stone was analyzing only the right to jury trial, and not the more general applicability of the Sixth Amendment to trials by military commission. Indeed, it is black-letter law in the military that servicemembers (who, thanks to Quirin, do not possess Sixth Amendment jury trial rights) are constitutionally entitled to the assistance of counsel.
Because Quirin doesn't control whether non-citizens at Guantanamo are constitutionally entitled to the assistance of counsel in criminal proceedings (including military commissions), I dare say it's an open question. But it's also one that I would hope is relatively easy to answer. Whether or not non-citizens held outside the territorial United States are entitled to affirmatively invoke individual constitutional rights in litigation against the federal government (an issue on which reasonable people will surely disagree), it seems to me an entirely different matter when those rights are invoked defensively in criminal proceedings initiated by the U.S. government, be they civilian trials or military commissions.
Separately, it also bears emphasizing that, if the Sixth Amendment categorically did not apply to non-citizens who were not lawfully present within the territorial United States, then Chief Justice Stone would have had no need separately to analyze the jury trial provision as distinct from the right to counsel, confrontation, and so on. Indeed, one might see the application of the rest of the Sixth Amendment as a negative implication of Chief Justice Stone's analysis in Quirin.
Either way, though, this only goes to further underscore the uncertainty that hangs over the commissions. I think this is an easy question; there may be readers who think it's easy in the other direction. What can't be disputed is that it's unsettled. And if it's not clear whether or to what extent the Sixth Amendment applies to these proceedings, one can only imagine the other issues that could arise when (if?) the 9/11 case ever actually goes to trial.
It may well be that the new policy goes away for reasons having nothing to do with its inconsistency with the Sixth Amendment. But I have to think we'll keep having flashpoints--issues where the Sixth Amendment question lurks in the background--until and unless the Article III courts have their say...