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Details of new limits on detainees’ lawyers

The Obama Administrati0n conceded to a federal judge early Tuesday that it is cutting back on the legal rights of Guantanamo detainees who have had one chance to challenge their imprisonment, but said it would consider relaxing the limits on a case-by-case basis — at the government’s discretion, not by court order.  The 52-page filing spells out in full for the first time the changes that military and civilian officials have worked out to govern access to detainees by their volunteer lawyers.  A federal District judge is weighing whether to allow the changes.

Since the Supreme Court’s 2008 decision in Boumediene v. Bush,  guaranteeing Guantanamo prisoners a right to go to court to test their detention, the issue of lawyers’ access has been within the control of federal District judges in Washington.  Under the new regime that began to be unveiled this summer, the Administration intends to shift that process entirely to the military and government intelligence agencies. The commander of the Naval base at Guantanamo is to gain full veto power, beyond review, over the access question, and the intelligence agencies would have the final veto power over access to classified information — even if that information comes from the detainees themselves.

If this is upheld by Chief Judge Royce C. Lamberth after his review, lawyers for detainees will have to agree to the new limits as a condition for any access to their clients or to classified data.  So far, some of the lawyers have agreed, but others are resisting, and are asking Judge Lamberth to keep control over the issue within the District Court under orders that have been in effect for the past four years.

The new regime is designed, Monday’s new government filing made clear, to give the military firm new control over the military base that is located on the island of Cuba.  The new document repeatedly stressed the military character of Guantanamo, and said its day-to-day functioning must remain within Executive Branch control.  There are now 168 detainees in the military prison there, most of whom are not facing prosecution for any crime. Also held there, though, are what the government calls “high-value detainees,” including the five individuals who are facing military commission trials for planning the terrorist attacks of September 11, 2001.

The filings before Judge Lamberth, by lawyers for detainees and lawyers for the Administration, have brought out a fundamental disagreement about detainees’ legal rights. The detainees insist that the Boumediene decision, as well as earlier court rulings on detainees’ rights, assure them a right to counsel that is not dependent upon them having a currently active habeas challenge pending in the courts, since the counsel believe that they have a continuing duty to be prepared to challenge anew the continued imprisonment of their clients as the years stretch on.   The government insists, by contrast, that neither Boumediene nor any other Supreme Court decision guarantees a right to counsel as such, but only access to a lawyer as that is specifically necessary to pursue an active court challenge.

What has changed, from the government’s side of this controversy, is its view that the detainees’ legal rights diminish after they have had one chance to file a habeas challenge, and have either lost that challenge in court or abandoned it temporarily.  Once a habeas case has “terminated,” as the government phrases it, the detainees are said to have less need for a lawyer’s aid.  If it should turn out that detainees do file a new court challenge, the government said in its filing Monday, it will consider on a case-by-case basis whether to grant access — provided, of course, that the lawyers have agreed to accept the conditions on access to their clients and to classified information that develops in the detainees’ case files.

In fact, the new document argued that the standing order issued in District Court in 2008 to govern counsel access to detainees simply no longer applies when a detainee’s habeas case has “terminated.”  That order, it contended, “provides no legal basis” for “enshrining its counsel-access provisions in perpetuity.”    That order itself contains language that access to a lawyer is assured only “for purposes of litigating” the detainee’s initial habeas challenge.  “Once that purpose has been served,” it added, “there is no further need” for its assurances of counsel access to remain in effect.  In essence, that arrangement will be replaced by the new regime under the control of the Guantanamo military commander, the document indicated.   Only if some new court challenge begins, or is in active preparation, it implied, will it be necessary for a detainee to see his lawyer.

Even beyond the lack of need for any new court order controlling lawyer access, the government said, detainees’ counsel have provided no evidence that the government is interfering in any way with the lawyers’ representation of their clients when that becomes necessary.   Instead of trying to claim that there is such interference, the document said, the detainees’ lawyers “are asking the court to intervene in the operations of a military detention facility, and to compel disclosures of classified information, as they consider preferable to facilitate their future presentation of hypothetical claims they may or may not ever seek to file….That is not an end for which the power of a federal court may be invoked.”

Monday’s filing also brought further into public view another layer of controversy between the government and detainees’ lawyers.  Under the new counsel access arrangements, the detainees’ attorneys will not be allowed to use information they gather in challenging a detainee’s detention as evidence to help a client who later goes before one of the Pentagon’s new system — not yet fully implemented — of “Periodic Review Boards.”   President Obama created the new PRBs last year, so that the Pentagon would periodically examine each detainee’s situation and decide anew whether further detention is justified.

Attorneys for prisoners view their ethical obligation to their clients as including representing them before the PRBs.   But the Administration, the new filing stressed, does not view the PRBs in that same way.   They were created, it argued, only to serve the Executive Branch in making an internal decision whether to go on holding a detainee, or release him.   That process, it contended, “does not implicate habeas rights, does not involve the judiciary, and whose purpose is not to address the legality of detention.”   It drew a distinction between the legality of detention — that is, can it be justified under habeas legal standards — and the nature of any threat (or absence of a threat) that a given detainee may present.

The PRB process does not guarantee a right to counsel at all, and especially not one that is supervised by the courts, the government asserted.  If there is to be any role for lawyers in the PRB system, it will be defined by the Defense Department, it added.  The presidential order setting up this system is like most Executive Orders — they are “management tools for implementing the President’s policies, not legally binding documents that may be enforced against the Executive Branch.”

In closing, the government stressed that “it is the role of the Executive Branch to manage operation of the military detention facility at Guantanamo Bay….Only if and when the government’s efforts fall short in such a way as to impede detainees’ efforts to invoke the Great Writ’s protection might it be the court’s role to fashion appropriate relief.  Because that day has not arrived,” the detainees’ request for a new court order guaranteeing access to their clients “must be denied.”

The detainees’ lawyers have until next Monday to respond to the new government filing.  A hearing on the issue has been set tentatively for August 17.



Recommended Citation: Lyle Denniston, Details of new limits on detainees’ lawyers, SCOTUSblog (Aug. 7, 2012, 2:31 PM),