A judge for the US District Court for the District of Columbia [official website] on Thursday rejected [opinion, PDF] new restrictions on lawyers representing Guantanamo Bay [JURIST backgrounder] detainees who have had their habeas corpus challenges denied or dismissed. In hearing the challenge to the new rules last month, Chief Judge Royce Lamberth expressed skepticism about the restrictions [JURIST report], which in some cases require a lawyer to sign a memorandum of understanding (MOU) [memorandum, PDF] to continue to be able to meet with a client, making any meetings or communications with a client "subject to the authority and discretion" of the Guantanamo commanding officer. In his opinion Lamberth framed the argument as "whether the Executive or the Court is charged with protecting habeas petitioners' right to access their counsel"—the challengers contended that the court's 2008 Protective Order [order, PDF] governs access to counsel regardless of whether they are currently petitioning for habeas relief, and the Department of Justice (DOJ) [official website] argued that once a habeas petition is terminated the Protective Order expires and the executive has the prerogative of assuring counsel access. Lamberth held that "the Government's attempt to supersede the Court's authority is an illegitimate exercise of Executive power":
Unlike the Protective Order, which repeatedly states that the Government may not unreasonably withhold approval of matters within its discretion, the MOU places no such reasonableness requirement on the Commander of JTF-GTMO. ... The MOU also states that both the "operational needs and logistical constraints" at Guantanamo as well as the "requirements for ongoing military commissions, periodic review boards, and habeas litigation" will be prioritized over counsel-access. This provision is particularly troubling as it places a detainee's access to counsel, and thus their constitutional right to access the courts, in a subordinate position to whatever the military commander of Guantanamo sees as a logistical constraint.Lamberth went on to state that, under a "litany" of judicial rulings, 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 courts ... [which] means nothing without access to counsel." He therefore ruled that the 2008 Protective Order will continue to govern Guantanamo detainees' access to counsel.
Earlier in August the DOJ filed a brief with the court asserting that the government should decide [JURIST report] when a Guantanamo prisoner is granted continued regular access to legal counsel absent a detainee's ongoing habeas or other legal challenge. The challenge to the new restrictions was brought by six Guantanamo detainees, two of whose habeas petitions were denied and four dismissed with the possibility of reconsideration. At the time of the hearing lawyers for only six of the 170 detainees at Guantanamo had signed the MOU. In the 10 years since the first detainees were brought to Guantanamo Bay, only a handful have been tried or convicted, and in the past few months there have been several calls by the UN and various foreign governments for some long-held Guantanamo detainees to be returned to their home countries, including Egypt, Canada and Kuwait [JURIST reports].