Judge rejects new restrictions for attorneys at Guantanamo Bay

McClatchy NewspapersSeptember 6, 2012 

— Using strong words, a federal judge has rejected the Obama administration’s efforts to change the rules under which Guantanamo Bay detainees are represented by lawyers.

Denouncing what he called "an illegitimate exercise of executive power," U.S. District Judge Royce Lamberth said in his 32-page ruling that an existing 2008 court order will continue to guide detainees’ access to counsel, even in cases where there is not an active habeas corpus petition.

"It is clear that the government had no legal authority to unilaterally impose a counsel-access regime, let alone one that would render detainees’ access to counsel illusory," Lamberth wrote.

The Obama administration had sought to impose a new requirement that detainees’ attorneys sign a "memorandum of understanding" in order to meet with their clients. Six detainees challenged the new requirement, which covers those who no longer have an active or pending habeas petition.

Lamberth also delivered a sharp assessment of the overall Guantanamo detention picture, stating:

"It is a sad reality that in the 10 years since the first detainees were brought to Guantanamo Bay not a single one has been fully tried or convicted of any crime. Despite this, the government has fought to deny detainees the ability to challenge their indefinite detentions through habeas proceedings. In a litany of rulings, this court and the Supreme Court have affirmed that the federal courts are open to Guantanamo detainees who wish to prove that their indefinite detentions are illegal."

The memorandum of understanding, Lamberth said, strips attorneys of their “need to know” designations, and explicitly denies counsel access to all classified documents or information that attorneys had “previously obtained or created” in pursuit of a detainee’s habeas petition. Lawyers can obtain access to their own classified work product only if they can justify their need for such information.

"At its heart," Lamberth wrote, "this case is about whether the executive or the court is charged with protecting habeas petitioners’ right to access their counsel."

UPDATE: Judge Lamberth revised his strongly worded decision to correct a factual error. In the initial ruling, he wrote "It is a sad reality that in the ten years since the first detainees were brought to Guantanamo Bay not a single one has been fully tried or convicted of any crime." In the amended opinion, Lamberth revised his statement to "In the ten years since the first detainees were brought to Guantanamo Bay, only a handful have been tried or convicted." The revision takes into account that two detainees were tried and convicted before military commissions at Guantanamo. A third was transferred to federal court in New York, where he too was convicted.

Email: mdoyle@mcclatchydc.com

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