Does the 6th Amendment still apply?
[NB: I actually wrote this Thursday afternoon but Blogger wouldn't let me post it. I'm very fortunate to have thought to make a copy before trying to post it at the time! Furthermore, I was unable to publish it until even later!!]
A Federal appeals court gave hope to the Bush administration today that it does not. In case you don't remember, here's what this Amendment to the US Constitution says:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence [emphasis added].
The question is whether Salim Ahmed Hamdan, who was a driver for Osama bin Laden and who is being detained at Guantanamo Bay Naval Base, has a right to be present when government prosecutors present classified evidence against him. His trial came to a halt last year when Judge James Robertson ruled that the procedures used by the military commission that is trying him were unlawful. The government today called Robertson's ruling "an extraordinary intrusion into the executive's power".
Hamdan's attorneys assert that "[t]he right to be present at all stages in criminal proceedings is fundamental, guaranteed by military law, common law, constitutional law and international law." I don't know about military law, common law or international law, but the Constitution, as amended, seems quite clear to me. I also emphasized the part about the location of the trial being determined by law. As best I can recall, Gitmo was chosen by executive fiat, not by law. Elsewhere the Constitution makes clear how the location should be determined:
... such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed [emphasis added].
[via Capitol Hill Blue.]