A federal judge ruled Sept. 6 that the Justice Department’s (DOJ) recent attempt to restrict access to counsel for Guantanamo detainees who have a right to petition for habeas corpus relief constituted an “illegitimate exercise of executive power” and ordered that the protective order that has been in place for the past eight years continue to govern access to counsel for detainees.
“The court has an obligation to assure that those seeking to challenge their executive detention by petitioning for habeas relief have adequate, effective and meaningful access to the court,” Judge Royce C. Lamberth wrote in a memorandum opinion addressing whether the executive branch or the court is charged with protecting habeas petitioners’ right to access their counsel. Lamberth, chief judge of the U.S. District Court for the District of Columbia, stated that “access to the court means nothing without access to counsel,” emphasizing that the current protective order’s applicability “lasts beyond the denial or dismissal of a petitioner’s habeas case and stretches to the class of present and future cases which have been or may filed” by Guantanamo detainees.
Under the changes proposed by the DOJ, lawyers representing Guantanamo detainees whose petitions for release were no longer pending would have been required to sign a memorandum of understanding (MOU) that shifted the authority over lawyer access to their clients from the courts to the Defense Department commander of the Joint Task Force-Guantanamo. Among other things, the document would have stripped counsel of their “need to know” designations and denied them access to all classified documents or information that they had previously obtained or created while pursuing their client’s habeas petition. Lawyers representing some detainees refused to sign the memorandum, arguing that detainees retain the right to pursue any available legal avenues to obtain their release with the right to meet with counsel in a confidential privileged setting.
Lamberth said he found no case law to substantiate the government’s position that petitioners who are not actively litigating a habeas petition do not have the same need to access their counsel as detainees who are currently litigating. In addition, the judge found that the government “had no legal authority to unilaterally impose a new counsel-access regime, let alone one that would render detainees’ access to counsel illusory.”
According to Lamberth, the MOU “not only threatens separation-of-powers principles by usurping the judiciary’s duty to ensure access to the courts, it also takes from the courts the power to adjudicate controversies relating to the MOU.”
The ABA spoke out against the proposed change, citing negative consequences when shortcuts are arbitrarily taken to save time and effort to reach a predetermined result.
“The history of the United States unfortunately teaches us that too often negative consequences can result from such mistakes – the internment of Japanese-American citizens during World War II, for example – when due process of law is set aside in the misguided belief that doing so would enhance national security,” Immediate Past President Wm. T. (Bill) Robinson III said in a statement issued July 25.
Robinson said that the Obama administration’s attempt to “place onerous conditions and limitations on visits by lawyers with their clients detained at Guantanamo Bay is reminiscent of such ill-advised decisions.”
“Lawyers, who are essential to justice, must be permitted to meet and communicate confidentially with clients at Guantanamo Bay without government interference or surveillance,” he said.
Robinson also had expressed ABA opposition to a new rule proposed in December 2011 by the Defense Department under which privileged attorney-client communications between attorneys and Guantanamo detainees would have been intercepted and reviewed by the U.S. government. In January, the chief defense counsel for the war crimes tribunals at Guantanamo issued an order instructing military attorneys not to follow the order requiring them to submit attorney-client privileged materials for review.