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Chief Judge Lamberth, Counsel Access, and the Guantánamo Mail

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Monday, May 6, 2013 at 9:05 PM

We’ve written a fair amount already about Chief Judge Lamberth’s September 2012 decision regarding the Guantánamo detainees’ continuing right of access to counsel (not to mention his March 2013 decision criticizing the government for its foot-dragging in declassifying various filings by the detainees). Now, those two themes have merged in a new decision by Chief Judge Lamberth regarding various claims that the Justice Department has been improperly holding onto–and not delivering–legal mail sent to the detainees from their lawyers and vice-versa.

DOJ claimed that the non-delivery of mail was caused by a series of accidents and oversights exacerbated by personnel turnovers that have since been corrected, “and the Court will take the government at its word.” But that doesn’t stop Judge Lamberth from firing yet another fairly pointed shot across the government’s bow:

the Court is concerned with the continuing erosion of counsel access at Guantanamo. The government’s decision to hold legal mail in this and other cases without notifying the Court or petitioners’ counsel or moving for a stay pending appeal after the Counsel Access decision makes it more difficult for the parties and the Court to resolve these complicated, thorny cases and threatens the government’s credibility. The government’s decision to curtail flights to Guantanamo has further interfered with petitioners’ counsel’s ability to represent their clients. Moreover, attorneys for at least 11 detainees have reported to the Court that the federal sequester has placed a budgetary burden on their offices, forcing them to cancel or postpone visits to their clients. Given that telephone calls to Guantanamo take a minimum of 20 days to schedule, last a maximum of 30 minutes, and are monitored, this has effectively eviscerated many of the protections established over the last decade in court ruling after court ruling. Moreover, in a closed hearing held on May 3, 2013, in the case of Hatim v. Obama, 05-cv-1429, the Court learned that new restrictions on where detainees can meet with counsel at Guantanamo were imposed last September. Those restrictions will be addressed in the Hatim case.

Whether the various shifts in policies at Guantánamo have indeed been accidental or deliberate, it seems increasingly clear that at least one of the judges supervising the habeas litigation is becoming fed up with their effects, regardless of their origins…

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