U.S. Policy for Guantanamo Lawyers|Is Abusive to Detainees, Judge Finds

     (CN) – A federal judge on Thursday slammed the Obama administration for its “untenable” exercise of executive power with regard to Guantanamo Bay detainees.
     “Eleven years after the September 11, 2001, attacks on the Pentagon and World Trade Center and the subsequent invasions of Afghanistan and Iraq, 168 people captured in the Global War on Terrorism remain detained at the United States Naval Base in Guantanamo Bay, Cuba,” the 32-page opinion begins.
     U.S. District Judge Royce Lamberth called it a “sad reality” that “not a single one of has been fully tried or convicted of any crime” for more than a decade.
     “Despite this, the government has fought to deny detainees the ability to challenge their indefinite detentions through habeas proceedings,” Lamberth wrote. “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.”
     In 2008, the Supreme Court’s watershed ruling in Boumediene v. Bush guaranteed habeas proceedings for detainees to challenge their detentions.
     As a result of that ruling, U.S. District Judge Thomas Hogan, Lamberth’s colleague, issued a “Protective Order and Procedures for Counsel Access to Detainees” outlining how lawyers for detainees could access classified information.
     “Despite the fact that the government never opposed the protective order or brought any violations of the protective order to the court’s attention, at some point during the summer of 2012 the government felt it necessary to promulgate their own procedures for counsel-access at Guantanamo, which it styled as a ‘Memorandum of Understanding,'” Lamberth explained.
     According to the government’s “understanding,” counsel for the detainees would not be able to access classified information.
     In addition, Guantanamo officials could cite “operational needs and logistical constraints” at Guantanamo at any time to withdraw a detainee’s access to lawyers.
     “This provision is particularly troubling as it places a detainee’s access to counsel, and thus their constitutional right to access the courts, in a subordinate position to whatever the military commander of Guantanamo sees as a logistical constraint,” the order states.
     The judge ridiculed the government’s insistence that the memorandum was “essentially the same” as the court order.
     “The lady doth protest too much, methinks,” he wrote, quoting Shakespeare.
     And if the memorandum was no different, then why was it necessary in the first place, the judge asked.
     “The old maxim ‘if it ain’t broke, don’t fix it’ would seem to caution against altering a counsel-access regime that has proven safe, efficient, and eminently workable,” Lamberth wrote. “Indeed, the government had no answer when the court posed this question in oral arguments. The best that they could muster was to argue that the protective order simply left a vacuum of procedural rules in the absence of an ‘active or impending’ habeas petition.
     “Of course, when it comes to power, the government, as much as nature, abhors a vacuum.”
     Illiterate detainees would be powerless against government lawyers, he added.
     “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,” the order states.
     The judge was particularly troubled by the government’s bid to give Guantanamo’s military commander “final and unreviewable discretion” over enforcement of the memorandum.
     “If the separation-of-powers means anything, it is that this country is not one ruled by executive fiat,” the order states. “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.”
     He ended the order on a blistering note.
     “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,” Lamberth wrote. “This very notion offends the separation-of-powers principles and our constitutional scheme.”
     The Center for Constitutional Rights, which represents several detainees, praised the ruling.
     “Today’s ruling reaffirms that constitutional rights are not subject to the whim of the executive,” CCR executive director Vincent Warren said in a statement. “The court has correctly recognized the government’s attempt to restrict attorney access to the men at Guantanamo as the latest in a ten-year history of successive efforts to ‘delay, hinder, or prevent access to the courts.’
     “The new rules came out of the blue and can only be seen as an effort to punish the men at Guantanamo for exercising their right to challenge their detention,” he added. “These rules would have given the government unfettered control over Guantanamo. As the court said, the executive cannot be trusted with such power.”

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