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Pentagon to defend lawyer limits (UPDATED)

(NOTE TO READERS: A reader who formerly worked in the Justice Department notes that an appeal can only go forward if the Solicitor General approves, and speculates that that has not yet happened.  The post has been updated to take account of this observation.)


The Obama Administration, seeking to take control within the military of the activities of lawyers for detainees at Guantanamo Bay, has signaled that it may  appeal a federal judge’s order denying that authority.   In a ruling in September (discussed in this post), Chief District Judge Royce C. Lamberth in Washington took back for the courts the power to supervise lawyers’ access to prisoners at the military facility on the island of Cuba.  On Friday, lawyers for the Pentagon filed a formal notice of an intention to appeal that decision to the D.C. Circuit Court.

Such an appeal would have the potential to set up a major inter-branch conflict over who determines the role that volunteer lawyers may play as they seek to defend their prisoner clients at Guantanamo.

The Pentagon has insisted that it cannot operate the military facility that includes the detainees’ compound without controlling access by lawyers, under conditions totally controlled by the military.  The detainees’ lawyers have argued that this is a matter for the courts under their review of habeas challenges by the detainees.  Judge Lamberth agreed with the lawyers, and struck down a new program of limitations spelled out by the Pentagon.

Underlying this dispute is a critical issue of habeas law: if a prisoner loses the first attempt to win release through a habeas plea in civilian court, does that “terminate” that individual’s right of access to a lawyer?  If it does, the Pentagon’s view is that lawyers must then sign a “memorandum of understanding” written by the Pentagon that strictly limits lawyers’ access.   Under that view, the military commander at Guantanamo has the final veto power, beyond review in the courts, over lawyer access.  Judge Lamberth rejected that claim.

The next step in this dispute will be for the D.C. Circuit to spell out a schedule for filing written legal arguments and possible hearings before a three-judge circuit panel.   Beyond the court of appeals, the issue could go to the Supreme Court.  When the Supreme Court in the 2008 decision in Boumediene v. Bush first recognized a constitutional right for Guantanamo prisoners to file habeas challenges to their confinement, it left it up to the district court judges in Washington, D.C., to determine how to process those cases.  Among other arrangements the district judges made were orders governing lawyers’ access at Guantanamo.

Judge Lamberth concluded that those orders remain in effect, that the issue is one for the courts, and that the Pentagon’s substitute regime is invalid.   There appears to be some doubt, both in Judge Lamberth’s view and certainly in the view of the detainees’ lawyers, whether the kind of order Judge Lamberth issued to settle the access issue is subject to an appeal.   The Pentagon’s notice that it is going to appeal indicated that it will test that issue.

(Thanks to Howard Bashman of How Appealing blog for the alert to the notice of appeal.)


Recommended Citation: Lyle Denniston, Pentagon to defend lawyer limits (UPDATED), SCOTUSblog (Nov. 4, 2012, 1:54 PM),