The Ridiculous GTMO Counsel-Stripping Amendment: An Easy Vote

[UPDATE: The Amendment failed by a vote of 133-297.]

Steve has already described the likely constitutional problems with the latest Guantanamo amendment designed to strip funding for military commission defendants.  Were I a bit more cynical, I would think that the amendment’s sponsor, Rep. Jason Smith, was trying to actually put an end to the military commissions once and for all.  Sadly, however, this appears to be a serious attempt to showcase the tough on terror approach to lawmaking.  Even from that, it is a highly misguided approach.

First, it would almost certainly lead to an immediate halt to the ongoing commissions and a new round of litigation regarding the constitutionality of the proposed restriction. Insofar as Guantanamo detainees are found to have Sixth Amendment rights (a question that would likely involve protracted litigation all the way up to the Supreme Court), it is a clear violation of the right to counsel, as Steve has already noted.

Second, it undermines the hard work of General Mark Martins and his team of military prosecutors, who have spent years trying to change the image of military commissions in the world’s eye and showcasing key procedural protections—including the basic right to paid-for counsel — provided the Guantanamo defendants. Were it to succeed, the amendment would help reify the notion of military commissions as kangaroo courts and the defendants as martyrs, thus undercutting key improvements to the system and contributing to the terrorist recruiters’ narrative.

Third, it flies in the face of America’s long-standing commitment to fair justice and the rule of law, something we continue to pursue through our annual state department human rights reporting and multiple other diplomatic channels.

The vote is this afternoon.   It ought to be an easy one.  Supporters of military commissions, fair justice,  and our nation’s long-term security should unite in rejection of this misguided amendment. 

About the Author(s)

Jennifer Daskal

Associate Professor at American University Washington College of Law Follow her on Twitter (@jendaskal).