Judge Lamberth Upholds Gitmo Detainees’ Right to Counsel

I’m a bit cranky, so reading this scathing opinion from Royce Lamberth rejecting the government’s effort to impose a new Memorandum of Understanding concerning Gitmo detainees’ right to counsel was just the ticket. The operative ruling reads,

The court, whose duty it is to secure an individual’s liberty from unauthorized and illegal Executive confinement, cannot now tell a prisoner that he must beg leave of the Executive’s grace before the Court will involve itself. The very notion offense the separation-of-powers principles and our constitutional scheme.

But the part where Lamberth lists the differences between the existing Protective Order and the MOU the government proposed.

For example, the Protective Order assumes that counsel for the detainees have a “need to know,” which allows them to view classified information in their own and related Guantanamo cases. Counsel for detainees are also specifically allowed to discuss with each other relevant information, including classified information, “to the extent necessary for the effective representation of their clients. And, the Protective Order assures that counsel have continuing access to certain classified information, including their own work-product.

The MOU, on the other hand, strip counsel of their “need to know” designations, and explicitly denies counsel access to all classified documents or information which counsel had “previously obtained or created” in pursuit of a detainee’s habeas petition. Counsel can obtain access to their own classified work product only if they can justify their need for such information to the Government. “Need to know” determinations for this and all other classified information would be made by the Department of Defense Office of General Counsel (DoD OGC), in consultation with the pertinent classification authorities within DoD and other agencies. However, there is no assurance that such determinations will be made in a timely manner. As this Court is keenly aware from experience, the inter-agency process of classification review can stretch on for months. It is very likely that this provision would result in lengthy, needly and possibly oppressive delays. It would also require counsel to divulge some analysis and strategy to their adversary merely to obtain their past work-product.

[snip]

While this Court is empowered to enforce the Protective Order, all “disputes regarding the applicability, interpretation, enforcement, compliance with or violations of” the MOU are given to the “final and unreviewable discretion of the Commander, Commander, Joint Task Force-Guantanamo Bay” (JTF-GTMO). The MOU further gives the JTF-GTMO Commander complete “authority and discretion” over counsels’ access to classified information and to detainees, including in-person visits and written communications. Apparently, the MOU also gives the Government to unilaterally modify its terms.

[snip]

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. Because the MOU does not come into effect until countersigned by the Commander at JTF-GTMO, the Commander could presumably refuse to sign the MOU, leaving a detainee in the lurch without access to counsel. 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 detainees’ access to counsel, and their constitutional right to access the courts, in a subordinate position to whatever the military commander of Guantanamo sees as a logistical constraint. [citations removed]

This is a better summary of all the potential abuses in the new MOU than any I’ve seen in commentary on this issue. Rather than treating the government as an entity that has always acted in good faith in the history of Gitmo litigation (and other counterterrorism cases), Lamberth lays out all the big loopholes that the government would use to infringe on habeas corpus.

It’s worth a read. Cause I’m sure the government will appeal, and who knows what this will look like after someone like Janice Rogers Brown gets ahold of it.

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27 replies
  1. rosalind says:

    “The court…cannot now tell a prisoner that he must beg leave of the Executive’s grace.”

    Shorter Lamberth: A President, not a King.

  2. bmaz says:

    Normally I would worry about the DC Circuit. But they may just back Lamberth here because the Administration action is such a wild usurpation of Article III power and discretion.

  3. Don't Forget Poland says:

    Poland has given information to European judges investigating allegations that the United States held al Qaeda suspects in secret jails on Polish soil, the government said on Wednesday, potentially easing official secrecy surrounding the practice.

    The European Court of Human Rights in Strasbourg had given the Polish government a deadline of September 5 to supply answers to a series of questions about whether the CIA operated secret jails in Poland and how much Polish officials knew about it.

    The Polish foreign ministry’s press office said in a statement that it had “submitted its observation” to the court on the case of Abd al-Rahim al-Nashiri, a Saudi national who has complained to the court that he was held illegally in a CIA jail in Poland.

    The request for information from the court forced Warsaw to make an awkward choice between loyalty to the United States, one of its closest allies, and its stated commitment to respecting international justice.

    http://www.reuters.com/article/2012/09/05/us-poland-usa-rendition-idUSBRE88415T20120905

  4. OrionATL says:

    hmm. the scoundrels in the doj and whitehouse have pulled out the MOU format again.

    now why might they have decided to use that approach?

    maybe, as with the 2001 “gloves off” mou, the govlaws realize it’s an “open sesame” to all sorts of unchecked executive illegality.

  5. emptywheel says:

    @bmaz: I hope so. About the only limit Courts will place on Exec Power these days is if the Judiciary has been slighted, though that was the case in Latif, too.

  6. OrionATL says:

    after volunteering a few more of her demented opinions, janice rogers brown should be ripe for impeaching as unfit for office.

  7. Whew That Was Close says:

    Darn Good Thing US AG Eric Holder closed out that pesky investigation into usa Torturing the sh*t out of people around the planet, eh???

    Delivered Into Enemy Hands

    US-Led Abuse and Rendition of Opponents to Gaddafi’s Libya

    Human Rights Watch
    September 6, 2012

    This report is based on interviews conducted in Libya with 14 former detainees, most of whom belonged to an armed Islamist group that had worked to overthrow Gaddafi for 20 years. Many members of the group, the Libyan Islamic Fighting Group (LIFG), joined the NATO-backed anti-Gaddafi rebels in the 2011 conflict. Some of those who were rendered and allegedly tortured in US custody now hold key leadership and political positions in the country.

    http://www.hrw.org/reports/2012/09/05/delivered-enemy-hands

    MOVE ALONG PEOPLE!! WHO ARE YOU FOR – THEM OR US?!?!? MAY WE SEE YOUR PAPERS PLEASE??? ARE YOU WEARING YOUR FLAG LAPEL PIN LIKE A GOOD LITTLE SHEEPLE?!?!?

  8. hcgorman says:

    I was surprised to read the opinion. Judge Lamberth recused himself in my clients case after I moved for his recusal after he gave a public speech saying he would be afraid to let one of the men go from Guantanamo because they could be the one to blow up the capitol. He has not ruled in favor of one Gitmo man to date. He also engaged in an ex parte discussions with the government regarding discovery in my clients case. Until today he had not heard or read a government argument in the gitmo cases that he did not like.

  9. pdaly says:

    EW, some minor typos in the quoted opinion that may or may not be in the original:

    2nd paragraph in larger quote–unless “needly” is a word, and a good one in this context:

    “It is very likely that this provision would result in lengthy, needly and possibly oppressive delays.”

    and second to last quoted paragraph. How many “commanders” are there?:

    “, compliance with or violations of” the MOU are given to the “final and unreviewable discretion of the Commander, Commander, Joint Task Force-Guantanamo Bay” (JTF-GTMO). “

  10. bmaz says:

    @pdaly: Candace is better equipped to answer that, but my hunch is she will say no. I think this is differentiated because it is a separation of powers and encroachment on the judiciary issue to Lamberth, not a “detainee issue” per se.

  11. joanneleon says:

    From advance copy of Kerry’s speech tonight:

    “In this campaign, we have a fundamental choice: Will we protect our country and our allies, advance our interests and ideals, do battle where we must, and make peace where we can?” Kerry will say, according to advance excerpts of his speech. “Or will we entrust our place in the world to someone who just hasn’t learned the lessons of the last decade?”
    NBC

    Irony is dead.

  12. Group W Bench says:

    too bad we cannot refer to the Prisoners of War at Guantanamo Bay Torture & Concentration Camp as Prisoners of War.

    and too bad this Judge cannot rule on the atrocity(ies) taking place daily at Bagram Torture & Death Prison in Afghanistan. The Afghanis are getting pissed off at how the usa continues to manipulate that situation in order to keep the Prisoners of War at Bagram off the books (and away from the Red Cross, Human Rights organizations, pesky usa Judges, etc etc).

    USA plan to hold Afghan prisoners after transfer ‘breaches deal with Kabul’

    Afghan system of indefinite detention also condemned as ‘setting a dangerous precedent’

    “Administrative detention” is used by USA forces when prisoners are deemed a threat but there is not enough evidence for a criminal prosecution.

    There are also concerns about the fate of around 50 foreign prisoners held at Bagram. “Most Afghans do not want the Americans to keep holding these third-country nationals in Afghanistan as if it is some kind of mini-Guantanamo,” Reid said. “They have said very clearly to us that they want the the Americans to hand over these non-Afghans to them or take them out of the country.”

    http://www.guardian.co.uk/world/2012/sep/06/afghan-prisoners-kabul

  13. Arbusto says:

    @emptywheel 5:
    Danada. Learned something. Unfortunately just added to the knowledge of our corrupt system with stacked courts. She makes Clarence T. look like Ruth G. by comparison.

  14. hcgorman says:

    @bmaz: Yes, you are right I don’t think he has seen the light but I am not sure it is because of separation of powers issues- the speech that I referenced above that he gave to the ABA was basically begging congress to get the Gitmo cases out of the courts because they were too hot to handle.
    I am guessing Lamberth saw all of the outraged accounts and decided for once to do the right thing…this too will pass.

  15. OrionATL says:

    @hcgorman:

    “…because they were too hot to handle…”

    is there such a thing as “judicial courage” –

    or “judicial cowardice”?

    i thought the likelihood of cases arising like the guantanamo habeas cases (and what we in our time know as “terrorist” cases in general) were precisely why we had a federal judiciary which had been constitutionally mandated to critically evaluate those actions of the executive branch that might improperly impinge on an individual’s life, liberty, or property.

    “too hot to handle” – wa wa wa wa.

  16. bmaz says:

    @OrionATL: Oh, you are barking up the wrong tree there, Lamberth has balls, and big ones, when he get’s his dander up. You should see his opinion in the Cobell litigation. And this today was a huge slapdown. I think the issue of why he recoils at the detainee cases is probably fairly complex; with some of it fairly understandable (why should DC District invest so much time when doing so only results in crazy shit from DC Circuit reversing them) to the inexplicable (like being concerned what making right legal decisions may much later importune).

  17. H. Candace gorman says:

    Sorry ORIONatl-but Lamberth was recoiling long before the dc circuit started their craziness. He did not want to deal with these cases and even used his status as chief judge to avoid any of the cases until pressure from the other judges Made him take a few…

  18. OrionATL says:

    @bmaz:

    my comment began with a citation of judge l’s remark about “too hot to handle”. frankly, i can’t fault the good judge on saying that; i think he was merely repeating what he and his fellow justices felt.

    i accept that this one of lambeth’s decision – whether based on judicial courage, on “who’s turf” jealousy, or even on a sense of justice needing to be done – should be appreciated.

    that is to say, i understand and appreciate the judicial courage involved – RELATIVE TO THE MONUMENTAL COWARDICE THE ENTIRE FEDERAL APPEALS JUDICIARY HAS DISPLAYED FOR A DECADE ON ISSUES INVOLVING CLEAR CASES OF EXECUTIVE BRANCH ACTIONS WHICH VOIDED ONE OR ANOTHER OF THE FIRST 10 AMENDMENTS.

    the default decision of out federal appeals judges has been that the executive “knows what it is doing and what needs to be done”.

    in my view, federal appeals judges accepting govlaw legal arguments at face value and quibbling and groveling over whether the judicial branch dare disagree with the executive branch over matters of “national security” is a recipe for american totalitarianism.

    this is especially worrisome because our right-wing-weighted federal appeals judiciary has already sanctified numerous bureaucratic instruments of repression our gov’t has established since 2001 – including most importantly those involving a vast expansion of what were once quaintly called “wiretaps” and which are now readily at hand to control any effort to change, let alone any anti-security-state revolution.

  19. bmaz says:

    @OrionATL: I can’t really disagree with Candace; however, even if Lamberth had been so inclined to change (and he does “evolve” in cases sometimes) I think he would be frustrated by the Circuit slap downs (and refusal of Supremes to address). I, thankfully, have not had to deal with Candace’s frustration, and hearing from other attorneys similarly situated off public forums, I know she is relating only a small fraction of the bullshit. But, from the outside of all that, I cannot see it other than as so much more than Lamberth. It is not just that something is rotten in this Denmark; all of it is.

  20. bmaz says:

    Jeebus here is a comment I tried to leave at Down With Tyranny:

    Nice post. Should be noted though, as Candace Gorman, one of the pro bono gitmo lawyers, pointed out over at my and Marcy’s place, Lamberth has not generally been very good on detainee cases.

    I was surprised to read the opinion. Judge Lamberth recused himself in my clients case after I moved for his recusal after he gave a public speech saying he would be afraid to let one of the men go from Guantanamo because they could be the one to blow up the capitol. He has not ruled in favor of one Gitmo man to date. He also engaged in an ex parte discussions with the government regarding discovery in my clients case. Until today he had not heard or read a government argument in the gitmo cases that he did not like.

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