Friday, September 07, 2012

Boumediene Lives to Fight Another Day: Upholding Counsel Access at Guantanamo

Jonathan Hafetz

Well worth a read is this week's decision by D.C. district judge Royce C. Lamberth rejecting the Obama administration's attempt to limit Guantanamo detainee's access to counsel.  Scathing and sarcastic, Lamberth's decision is the most significant setback for the government in the Guantanamo habeas corpus litigation in recent memory.

The government had sought to make it more difficult for detainees who lost their habeas cases to continue to see their lawyers and more difficult for those lawyers to advocate for their clients, including by bringing new petitions based, for example, on new information or changed circumstances.  Significantly, the government sought to give the Defense Department--and not the court--final say over whether and under what circumstances a Guantanamo detainee could communicate with his lawyer.  And just as significantly, there was no apparent reason for the government's ploy.  As Judge Lamberth underscored, the government has not presented a single instance in which the current protective order that has controlled counsel access, more or less, for the past eight years threatened classified information or caused any harm to the military's operation of the Guantanamo naval base.  "If it ain't broke, don't fix it," cautioned Lamberth.  Indeed, the government's move appeared not only unnecessary but downright cruel, as it would have erected roadblocks to the one line of outside human contact for prisoners already into their second decade of incarceration without trial. 

Should the government appeal (it has not announced whether it will), it could provide an opportunity for a handful of D.C. Circuit judges like A. Raymond Randolph or Janice Rodgers Brown to further eviscerate Boumediene v. Bush, the 2008 Supreme Court decision recognizing Guantanamo detainees constitutional right to habeas corpus.  But it could also lead a more balanced D.C. Circuit panel to hand the government another stinging defeat.  The access-to-counsel issue presents a low-cost way for a court to opine on the risks of unchecked executive power, the indispensability of habeas corpus, and the role of lawyers in a democracy--low-cost because upholding counsel access would not remotely affect the government's broad powers of detention.

And that highlights an irony underlying Judge Lamberth's opinion.  The opinion is remarkably skeptical of the government's motives and its suggestion that the Defense Department would exercise its discretion wisely and humanely if it had ultimate control over counsel access.   The opinion, moreover, recites in detail numerous prior efforts by the government to restrict Guantanamo detainees' access to counsel and impede lawyers' representation of their clients.  Yet, courts have shown far less skepticism of the government's claims on the larger question--that habeas petitioners are "part of" al Qaeda and should be detained indefinitely--and instead deferred to the government's often flimsy evidence.  In a sense, Lamberth's opinion is a microcosm of Guantanamo court decisions in the last decade: extolling the principles behind the separation of powers and Great Writ, but doing little to alter the status quo.

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