A Few Good Angry Men: Application of the Jury Trial Clause of the Sixth Amendment to Non-Citizens Detained at Guantanamo Bay

Despite the substantial amount of writing on the Guantanamo Bay detention center, there has been very little discussion regarding which substantive constitutional rights are applicable to those being detained at the base. The Jury Trial Clause of the Sixth Amendment-as important as it is to the ultimate disposition of the detainees-has not been discussed in any detail at all. However, the history and jurisprudence surrounding the Jury Trial Clause suggests that it should apply in full in Guantanamo Bay.While there is some general debate as to which constitutional provisions apply extraterritorially, the fundamental nature of the right to jury trial indicates that it should apply in Guantanamo even if it is found to be an unincorporated territory. Additionally, arguing, as the government has thus far, that the detainees are not entitled to a jury trial based on the rule created in Ex parte Quirin-that is, because they are enemy combatants charged with violating the law of war-may be applicable in some cases but would be inappropriate to extend as a categorical rule. To that end, the government's reliance on Quirin in Guantanamo is somewhat telling, as this argument actually presupposes that detainees would be entitled to the right to jury trial if Quirin were found not to apply. Therefore, the government cannot lawfully conduct trials in Guantanamo Bay without adhering to the Jury Trial Clause of the Sixth Amendment."I consider [trial by jury] as the only anchor, ever yet imagined by man, by which a government can be held to the principles of its constitution."1INTRODUCTIONIn recent years, there has been a considerable amount of discussion concerning the extraterritorial reach of the U.S. Constitution.2 In particular, the Supreme Court's decision in Boumediene v. Bush3 raised the interesting and controversial question of which constitutional rights should apply at the Guantanamo Bay detention center.4 One provision that has received surprisingly little attention in this regard is the Jury Trial Clause of the Sixth Amendment.5 By guaranteeing the right to an impartial jury for the accused in all criminal proceedings, the Jury Trial Clause adds an element of underlying fairness to the American criminal justice system.6 However, while the right to jury trial has come to be a highly valued component of the American legal system,7 questions concerning who can claim the title of "the accused" for Sixth Amendment purposes have not yet been fully settled.Relevant case law has clarified some areas of this debate more than others. For example, with the exception of members of the U.S. military,8 it is generally true that American citizens against whom criminal proceedings are brought are entitled to a jury trial regardless of the geographic location9 of the trial itself.10 However, it is much less clear how the Clause relates to non-citizens in similar situations. The Supreme Court partially answered this question in Ex parte Quirin11 by stating that the right to jury trial does not apply to non-citizens designated as enemy combatants that are charged with violating the laws of war.12 In creating this exception to the Jury Trial Clause,13 the Court focused heavily on the defendants' status as enemy combatants and the nature of their alleged offenses, but said nothing about whether the defendants would otherwise have been entitled to a jury trial.14In the context of Guantanamo Bay, the question of whether detainees are entitled to the right to jury trial has been discussed strictly through the lens of Quirin's law of war exception.15 For example, the U.S. Court of Appeals for the District of Columbia Circuit recently considered two cases concerning whether it is appropriate to try Guantanamo detainees under Quirin for offenses such as conspiracy and providing material support for terrorism.16 Both of these cases, however, gloss over a more basic, but equally fundamental, question: Outside the bounds of the Quirin exception, are Guantanamo detainees entitled to invoke the protections of the Jury Trial Clause at all, or are they a group to whom the right to jury trial categorically does not apply? …