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.

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].