It’s nice to be reminded, from time to time, that Georges Clemenceau didn’t say “military justice blogs are to blogs…,” but instead said “military justice is to justice what military music is to music.”

The Washington Post reports:

The new commander of the Guantanamo Bay prison wants a team of government and law enforcement officials to be allowed to review all communications between lawyers and inmates accused of helping organize the Sept. 11 attacks, The Associated Press has learned.

We’ve covered such efforts to review correspondence between detainees and their counsel before, including consideration of the professional responsibility implications. However, Steve Vladeck over at Lawfare Blog takes it to a whole different level:

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).

If nothing else, this provides good context for the NCO who thinks he’s being railroaded.

One Response to “They’re military commissions, after all”

  1. publius says:

    But hasn’t the issue been been resolved by Congress and the President? The MCA of 2009 entitles each accused to counsel.  I suppose an argument could be made that Congress’ and the President’s action is not a recognition of the accused’s constitutional right to counsel, but rather it is a gift unrelated to any mandate under the 5th or 6th amendments. This gift can therefore be qualified and/or modified in all kinds of ways short of the full right to counsel under the 5th and 6th amendments, to include big G scanning correspondence between accused and counsel.   Only problem is,  neither the MCA nor MMC formally qualifies or modifies the accused’s right to counsel.  In the absence of such modification or qualification, what can a judge look to for guidance?  Only traditional American jurisprudence– military and civilian– regarding the right to counsel, which is entirely based in the 5th and 6th Amendments.