Tartly accusing the federal government of confusing “the roles of the jailer and the judiciary,” a federal judge in Washington, D.C., on Thursday struck down the Pentagon’s new order giving the military total veto power over meetings between Guantanamo Bay detainees and their lawyers.   Chief Judge Royce C. Lamberth, taking back for the courts the authority to supervise lawyers’ access at the military prison, put back into full effect a 2008 court order that has governed those meetings.   The judge’s opinion is here, and an implementing order is here.

After years in which the detainees have lost many of their court battles, Lamberth’s ruling was a sweeping victory for them and a strong reaffirmation of the ancient habeas corpus writ that requires jailers when challenged to justify holding an individual — in this situation, non-citizens being held indefinitely and without criminal charges by the U.S. military away from the United States mainland.

Last summer, the Pentagon, joined by the Justice Department, told the volunteer lawyers for a small group of clients at Guantanamo that they could no longer have access at the prison unless they first signed a new “memorandum of understanding.”  That memo would apply to any detainee who had pursued a challenge in federal court, and had lost in the first round of such a challenge, or had withdrawn that initial challenge.  The Justice Department argued that, once the initial habeas case had “terminated,” the right to counsel under the 2008 court order ended and access from then on was subject to the decision of the Guantanamo military commander — without review by a court.   The Pentagon also had argued that changing conditions at the base had made it necessary for the commander to take greater control over lawyers’ comings and goings.

Although the Justice Department contended that the new memo was not really different on the counsel-access issue from the court-supervised 2008 regime, Judge Lamberth rejected that claim.  He ticked off the significant changes that the detainees’ lawyers had cited, and accepted the attorneys’ assertion that the Pentagon was already making changes in the new control memo, further limiting how attorneys could function while visiting their clients.

What most riled the judge, it was clear, was the move by the military to take away from the courts the control of the counsel-access issue for detainees whose initial habeas cases were over.  “The Court,” the judge wrote, “is simply not obliged to give the Executive the opportunity to create its own counsel-access provisions before stepping in and fashioning such procedures.  To do so would be to allow the Government to transgress on the Court’s duty to safeguard individual liberty by ‘calling the jailer to account.'”   While the Executive branch clearly has the authority to run the facility at Guantanamo, the judge said, it is up to the courts to make sure that the detainees retain their access to the courts, and that cannot happen unless they have access to their lawyers.

The Pentagon, the judge declared, was not only trying to maintain control over the Guantanamo base, but also was attempting to give itself the authority to decide when a detainee’s legal case had come to an end, and when he would be given access to a lawyer to pursue a new court challenge.  The Pentagon memo, the opinion said, “actually gives the Government final, unreviewable power to delay, hinder, or prevent access to the courts.”  Bluntly, the judge said: “The government’s actions thus far demonstrate that it cannot be trusted with such power.”

Reacting to the government’s argument that a detainee’s habeas challenge rights were “terminated’ after an initial fruitless round in court, the judge ruled that the right to access to the courts does not end at that point, and so access to counsel does not end then.  A detainee has the legal right to file new challenges, or a succession of them, and it is not up to the Executive branch to decide when and whether such new proceedings can be started by detainees’ lawyers, according to the decision.  Judge Lamberth said he was satisfied that the six detainees directly involved in the dispute before him did, indeed, plan to go on making challenges, as their confinement continues and as policies or world conditions may change.

In the end, the judge left no doubt that the Pentagon could make no effort to force detainees’ lawyers to sign the new memo controlling access to their clients.  “It is clear,’ he wrote, “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.”  So, he stressed that the 2008 order, firmly retaining control within the District Court, “remains in place . . . as long as detainees are held at Guantanamo Bay and can petition for habeas relief or bring other claims before the Federal courts, and no longer.”

With some sarcasm, the judge said that, if the Obama Administration had closed Guantanamo “as it promised,” the courts would no longer need to be supervising the counsel-access issue, other than to continue to enforce the requirement that attorneys continue to keep confidential any classified or other secret information they had obtained while representing detainees.

In addition to the restrictions that the new Pentagon memo had put on lawyers’ access as part of their habeas representation, the military has indicated that it will be imposing new restrictions on what those lawyers can do with information they have gathered when the Pentagon puts into effect a new regime of periodic review of each detainee’s situation, and the need for further confinement.  The lawyers have contended that they need flexibility in order to represent their clients before so-called “Periodic Review Boards.”   The Justice Department has countered that those boards are purely an Executive branch operation, not something akin to habeas review.   The judge said that issue was not ripe for decision at this point.

The Justice Department had told the judge that, if he required the military to continue to follow the 2008 court order even for detainees whose habeas cases had “terminated,” that would amount to an injunction and the government would then have the right to appeal to the D.C. Circuit to contest such an order.   The judge said that he was not issuing an injunction, but that the courts would have power to do so in this context if they felt it necessary.   It is thus unclear whether what the judge did on Thursday is, in fact, subject to appeal to the D.C. Circuit.

 

 

 

 

 

 

 

Posted in Cases in the Pipeline, Detainee Litigation, Featured

Recommended Citation: Lyle Denniston, Pentagon rebuked on detainee rights, SCOTUSblog (Sep. 6, 2012, 7:36 PM), http://www.scotusblog.com/2012/09/pentagon-rebuked-on-detainee-rights/