389. International humanitarian law also guarantees that an accused has the necessary rights and means of defence and the right to examine and have examined witnesses by virtue of Common Article 3,973 Article 75(4) of API and relevant provisions of the Third and Fourth Geneva Conventions. The necessary rights and means of defence include the right of a defendant to be assisted by a lawyer of his or her choice, the right to free legal assistance where the interests of justice so require, the right to sufficient time and facilities for the preparation of a defence, and the right to communicate freely with his or her attorney, among other things.974 The Geneva Conventions however only prescribe that defendants should have access to counsel during and before trial, without setting a strict time limit for access following the initial deprivation of liberty.975 b. Domestic Standards 390. Upon ratification of the ICCPR, the United States entered an understanding stipulating that “subparagraphs 3(b) and (d) of Article 14 do not require the provision of a criminal defendant's counsel of choice when the defendant is provided with court-appointed counsel on grounds of indigence, when the defendant is financially able to retain alternative counsel, or when imprisonment is not imposed. The United States further understands that paragraph 3(e) does not prohibit a requirement that the defendant make a showing that any witness whose attendance he seeks to compel is necessary for his defense.”976 391. The Fifth Amendment to the US Constitution provides for guarantees of due process of law.977 The Sixth Amendment protects the rights of an accused in criminal proceedings “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 defense”.978 The attorney-client privilege is also considered as one of the “oldest and most established evidentiary privileges known to [common] law”.979 The applicability of both the Fifth and Sixth Amendments to the military commissions has not been definitively ruled upon by a domestic court. 392. Any military commission defendant is entitled to have a military defence counsel assigned to his case free of charge “as soon as practicable”.980 An accused can choose a specific (New York and Geneva: United Nations, 2006), p. 24, <http://www.ohchr.org/Documents/Publications/RuleoflawProsecutionsen.pdf>. 972 See, for example, UN Special Rapporteur on human rights and counter-terrorism, Report to the Human Rights Council, A/HRC/6/17/Add.3, op. cit., note 22, para. 28. 973 Common Article 3(1)(d); ICTY, Prosecutor v. Blagoje Simić, Miroslav Tadić, and Simo Zarić, op. cit., note 789, para. 678. 974 API, Art. 75(4)(a), (g); Third Geneva Convention, Arts. 84, 99, 105; Fourth Geneva Convention, Art. 72; “Customary International Humanitarian Law, Rule 100”, ICRC website, op. cit., note 643. 975 “Customary International Humanitarian Law, Rule 100”, ICRC website, ibid., referring to the Third Geneva Convention, Art. 105(3), which stipulates that counsel representing a prisoner of war should have at least two weeks to prepare before the beginning of a trial, and Fourth Geneva Convention, Art. 72(1), which mentions that counsel must enjoy the necessary facilities for preparing a defence. 976 US reservations to the ICCPR, op. cit., note 327, para. II(4). 977 US Constitution, Fifth Amendment. The Fourteenth Amendment also prohibits the deprivation of liberty without due process, but it relates to state action, which is not addressed in this report. 978 US Constitution, Sixth Amendment. 979 United States Supreme Court, United States v. Jicarilla Apache Nation, Case No. 10-382, 13 June 2011, <https://supreme.justia.com/cases/federal/us/564/10-382/>. 980 MCA 2009, § 948k(3). 171