By Thomas McDonald | 62 Am. U. L. Rev. 701 (2013)
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.