an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Under the proposal, filed this month in the United States Court of Appeals for the District of Columbia Circuit, the government would limit lawyers to three visits with an existing client at Guantánamo; there is now no limit. It would permit only a single visit with a detainee to have him authorize a lawyer to handle his case. And it would permit a team of intelligence officers and military lawyers not involved in a detainee’s case to read mail sent to him by his lawyer.
The proposal would also reverse existing rules to permit government officials, on their own, to deny the lawyers access to secret evidence used by military panels to determine that their clients were enemy combatants.
Many of the lawyers say the restrictions would make it impossible to represent their clients, or even to convince wary detainees — in a single visit — that they were really lawyers, rather than interrogators.
. . . .
The dispute comes in a case in which detainees are challenging decisions by military panels that they were properly held as enemy combatants. The Justice Department’s proposed rules could apply to similar cases that lawyers say are likely to eventually involve as many as 300 of the roughly 385 detainees now held at Guantánamo.
Some of the detainees’ lawyers say the Justice Department proposal is only the latest indication of a long effort to blunt their effectiveness, which they say was evident in statements of a senior Pentagon official early this year. The official, Charles D. Stimson, deputy assistant secretary for detainee affairs, resigned after he was criticized for suggesting that corporations should consider severing business ties with law firms that represented Guantánamo detainees.
One should hardly be surprised at these proposals. The Bush Administration long sought to use Guantanamo Bay as a law-free zone where detainees would have no rights that Americans were bound to respect. After Supreme Court decisions in Rasul and Hamdan undermined its strategy, the Bush Administration successfully pushed for the Military Commissions Act of 2006, which eliminated habeas corpus for non citizens held by the President and substituted a weakened and limited form of review in the D.C. Circuit. The Justice Department's new proposed rules now attempt to cut off effective legal representation by limiting the number of times lawyers can meet with clients, by opening mail that would ordinarily be protected by attorney client privilege, and by denying lawyers access to secret evidence used against their clients.
These proposed rules are in considerable tension with the Government's claim that Congress has not really suspended the writ of habeas corpus but rather provided an adequate substitute-- namely, the ability to appeal various combatant status review tribunal and military tribunal decisions to the D.C. Circuit. But an adequate substitute for habeas requires adequate legal representation for those detained. If that is undermined, if attorney-client privilege is not respected, and if lawyers are prevented from knowing about secret evidence used to convict their clients, it is hard to argue that these proceedings are an adequate substitute.
We should not forget this central point: The Justice Department is trying to do everything possible to prevent Guantanamo detainees from having any rights at all. It wants to get as close as it can to what the Bush Administration sought before Rasul and Hamdan-- a law-free zone. But the more the Justice Department tries to eliminate procedural protections and basic elements of fairness for the detainees, the more it undermines its argument that the detainees have a remedy that is just as good as habeas.
In fact, the Justice Department's argument about the adequacy of the remedy has always been disingenuous. The Bush Administration wants what it has always wanted-- a legal black hole, a place where it can seize any non-citizen, declare them an enemy of the state and hold them without any means of redress. It wants, in other words, the very absence of law.
Although we have been momentarily distracted by the scandals over Alberto Gonzales, we should remember that the Administration's policies on detention and interrogation-- all devised and approved by Justice Department lawyers-- are the real reason why this Administration, and this Justice Department, have been such a disgrace to our country and to our traditions of government under law. Posted
by JB [link]
From the original article: “There is no right on the part of counsel to access to detained aliens on a secure military base in a foreign country,” the Justice Department filing argued.
I haven't looked at the filing yet, but if this is the legal argument being put forward by DOJ, it should put to rest any remaining questions on this board whether the government's theory of these cases is based on territoriality or on 'enemy combatant' status.
The law free zone Prof. Balkin describes is the perfect manifestation of Giorgio Agamben's state of exception--the area at the meeting of sovereignty and norm. It's a great book, if you're interested in historical precedent for the juridical structures of GTMO and secret CIA prisons.