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DOJ Jumps Shark, Notices Appeal of Lamberth MOU Ruling

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Saturday, November 3, 2012 at 10:42 AM

[Update (11:41 a.m. EDT)]The always reliable Josh Gerstein already had a story up on this late last night over @ Politico, which reports that an “administration official” suggested that “Friday’s filings were made in order to keep open the option of an appeal and that no final decision has been made about whether to see an appeal through.” I hope that’s true, and that the government ultimately decides to abandon such an appeal–although it shouldn’t even be a close question (or one that couldn’t have been resolved between September 6 and today). I’ve updated the text below to reflect the fact that no decision has been made (yet) to actually appeal.


We’ve extensively covered the Guantanamo access-to-counsel dispute provoked by the new “Memorandum of Understanding” that the government asked counsel for a number of the detainees who have had habeas petitions dismissed or denied to sign, culminating in Chief Judge Lamberth’s stern September 6 ruling that the MOU was inconsistent with the underlying court-imposed protective order governing the terms and conditions of the detainees’ access to counsel–and that the detainees have a continuing right of access to counsel. As Lamberth concluded,

    The Court has an obligation to assure that those seeking to challenge their Executive detention by petitioning for habeas relief have adequate, effective and meaningful access to the courts. In the case of Guantanamo detainees, access to the courts means nothing without access to counsel. And it is undisputed that petitioners here have a continuing right to seek habeas relief. It follows that petitioners have an ongoing right to access the courts and, necessarily, to consult with counsel. Therefore, the Government’s attempt to supersede the Court’s authority is an illegitimate exercise of Executive power. 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. This very notion offends separation-of-powers principles and our constitutional scheme.

Surprised as I was that the government had taken this position in the first place, I, for one, had thought (hoped?) that Lamberth’s strongly-worded ruling would be the end of the matter…

Now, and just before the (Monday) deadline for appealing the decision, the government has filed a notice of appeal to the D.C. Circuit. There’s no brief yet, so I can’t assess the strength (or lack thereof) of the government’s arguments on appeal (or even whether they will in fact appeal the decision), but I just want to make two quick observations in case it’s a serious possibility:

  • One of the more interesting political questions the MOU dispute raised was whether this push to restrict the detainees’ access to counsel reflected a considered policy choice by the Obama Administration, or instead the Justice Department merely doing due diligence in defending the independent actions of various senior officials at Guantanamo or other government agencies. If DOJ does in fact pursue this appeal, that would seem to answer that question–and not in the direction I would’ve thought.
  • On the merits, if the government does appeal, it will present the starkest case yet with regard to whether the D.C. Circuit takes Boumediene seriously. Say what you will about the Court of Appeals’ rulings on the procedural, substantive, and evidentiary issues in the post-Boumediene merits cases; the issue in the MOU dispute is even more elementary: Insofar as Boumediene requires providing those protected by the Suspension Clause with a “meaningful opportunity” to challenge the legality of their detention before a neutral decisionmaker, and insofar as the Suspension Clause does not just require one bite at the habeas apple, but rather continuing access to the courts for the purpose of raising any non-frivolous challenge to the legality of one’s continuing indefinite detention, Lamberth has to be right that “[i]n the case of Guantanamo detainees, access to the courts means nothing without access to counsel.” And the argument that the MOU does not interfere with access to counsel is, in my view, risible.

I’ll wait to say more about the specific substantive issues until the government actually does file papers in support of such an appeal. I’ll just say that I’ve been one of the staunchest defenders of the Obama Administration’s shift from opposing jurisdiction in the Guantanamo cases to vigorously defending these detentions on their merits–not because I always agreed with their views on the merits, but because it reflected the (in my view, correct) understanding of the judicial review Boumediene requires. Indeed, as we’ve noted before, at least some of the D.C. Circuit’s more controversial post-Boumediene rulings have embraced propositions for which the Obama Administration did not even argue. Insofar as arguing against Chief Judge Lamberth’s ruling would be arguing against that judicial review, this would be, in my view, a deeply surprising, disappointing, and alarming development.

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