Why the Latest Ridiculous Guantánamo Amendment is Almost Certainly Unconstitutional

Later today, the House of Representatives appears set to vote on the following amendment to the Department of Defense appropriations bill, sponsored by Missouri Congressman Jason Smith: “None of the funds appropriated or otherwise made available in this Act may be used to provide for defense counsel for any individual described in section 8101(c).”

Section 8101(c), in turn, refers to all Guantánamo detainees. Assuming that the reference to “defense” counsel is meant to only encompass those detainees currently in proceedings before the military commissions, there appear to be two separate (and serious) constitutional flaws with such a funding restriction:

First, it has been the law of the land, ever since Gideon v. Wainwright, that the right to “the assistance of counsel” conferred by the Sixth Amendment includes an affirmative mandate on the government’s part to provide counsel to those defendants who can’t afford their own. I don’t see any argument that Rep. Smith’s amendment is substantively consistent with Gideon; rather, I assume any constitutional defense of the provision turns on the assumption that the Sixth Amendment simply doesn’t apply to non-citizens held and tried outside the territorial United States. It’s true that no court has yet expressly held that the Sixth Amendment does apply to the Guantánamo military commissions, but (1) the government has never argued that it doesn’t; (2) even if the detainees lack affirmative constitutional rights (still a matter of significant debate), criminal prosecutions are fundamentally different; and (3) for those reasons, I’d be floored if any (civilian) federal court ever held that military commission defendants categorically lack Sixth Amendment protections. (For more, see the longer post I wrote on this question back in 2011.)

But second, even if the defendants lack Sixth Amendment protections, the provision may still violate the separation of powers, for reasons articulated by Justice Kennedy in his majority opinion in Legal Services Corp. v. Velazquez. There, the Court struck down part of a federal statute that prohibited legal aid lawyers who received federal funding from challenging the validity of existing welfare laws, largely because of the “severe impairment of the judicial function” such a restriction might otherwise effect. It’s not hard to see how a similar charge could be leveled against this provision, insofar as it would have the effect of depriving the judiciary of a meaningful opportunity to entertain the complex and novel legal and constitutional questions arising out of the commissions.

Of course, there are about 37 other problems with this amendment as a matter of politics, policy, and prudence (not to mention common sense), but these two constitutional flaws are hopefully enough to ensure that it’s not taken seriously. 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).