After a string of federal court losses that has whittled away at the U.S. Supreme Court’s guarantee of “meaningful review” for Guantanamo Bay detainees, a D.C. federal district judge has issued a resounding win on access to counsel, rebuffing an attempt by the government to replace court rules with its own significantly more restrictive proposal.
Citing the “litany” of Supreme Court rulings that established detainees’ hard-fought access to the courts, Judge Royce C. Lamberth, the chief judge for the D.C. district court, said the court was “nonplussed as to why the counsel-access issue is being re-litigated at all,” and scolded the administration for confusing “the roles of the jailer and the judiciary in our constitutional separation-of-powers scheme.” Lamberth writes:
It is clear that the Government had no legal authority to unilaterally impose a new counsel-access regime, let alone one that would render detainees’ access to counsel illusory.
Because it is emphatically the duty of the Courts to assure access to habeas relief, and because “petitioners’ access to attorneys is not a matter of Government discretion,” the Government’s MOU is null ab initio. If the Court here were to allow the Executive to substitute its MOU for the Protective Order, regardless of whether it provides “essentially the same” counsel-access provisions or not, the Court would be abdicating its great responsibility to guarantee that its doors remain open to these detainees.
If the separation-of-powers means anything, it is that this country is not one ruled by Executive fiat. Such blanket, unreviewable power over counsel-access by the Executive does not comport with our constitutional system of government. Therefore, it is the opinion of this Court that the Protective Order continues to govern detainee-counsel access for the purpose of bringing habeas petitions so long as detainees can bring habeas petitions before the Court.
Under the government’s scheme, in-person and written communication between detainees and defense attorneys is significantly curtailed when lawyers don’t have a habeas corpus case pending. The government reasoned that, should clients wish to initiate a habeas petition challenging their detention, they could proceed on their own, “send letters to the Court,” or submit “the form that the Government makes available” — an assertion that Lamberth called “preposterous.”
“The Court does not see how these petitioners, who speak no English, have no legal training, and who cannot be expected to remain up to date with new legal and political developments can have the requisite tools to bring habeas petitions without access to counsel,” Lamberth wrote.
Should this ruling be subject to appeal, the odds for detainees are grim — the U.S. Court of Appeals for the D.C. Circuit has sided with the government in 11 out of the last 12 cases. The Supreme Court, meanwhile, has stayed entirely out of the fray since the summer of 2010, declining to review a single Guantanamo appeal during its last two terms.