Detention: Law of

DDC: GTMO Counsel Access Procedures Invalid

By Wells Bennett
Thursday, July 11, 2013, 5:03 PM

It already had been quite a week in the GTMO habeas world.  And then came today's important opinion and order from Chief Judge Royce Lamberth, regarding counsel access at Guantanamo.

Lawyers for petitioner Saeed Mohammed Hatim and other detainees insisted that certain GTMO policies--particularly those regarding intrusive body searches, and the location of meetings between hunger strikers and their attorneys---unlawfully deterred them from exercising their counsel access rights.   Today, Chief Judge Lamberth mostly sides with Hatim and company.  (Perhaps no surprise there, given his earlier rejection of a government attempt to depart from longstanding counsel access rules, with respect to detainees whose habeas cases have been voluntarily dismissed or adjudicated fully.)

Provocatively, the district court's opinion begins with an invocation of the President's May remarks:

On May 23, 2013, President Obama promised, concerning detainees held at Guantanamo Bay, that “[w]here appropriate, we will bring terrorists to justice in our courts and our military justice system. And we will insist that judicial review be available for every detainee.” Remarks by the President at the National Defense University (May 23, 2013) (transcript available at http://www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-...). This matter concerns whether the President’s insistence on judicial review may be squared with the actions of his commanders in charge of the military prison at Guantanamo Bay. Currently, it cannot.

Petitioners are detainees at Guantanamo Bay who are in the process of seeking habeas corpus relief and whose access to counsel is governed by this Court’s 2008 Protective Order. Petitioners allege that the Joint Detention Group (“JDG”), the group responsible for detention operations within Joint Task Force-Guantanamo (“JTF-GTMO”), has instituted new search and procedures that impair petitioners’ access to legal counsel.

The petitioners’ unique circumstances render this case no ordinary challenge to prison regulations: At its heart, this case is about petitioners’ ability to invoke the writ of habeas corpus through access to the Court and access to counsel.

Upon consideration of petitioners’ Motions [37 and 38], the government’s Opposition [42], petitioners’ replies [44 and 45], the arguments presented at this Court’s open and sealed hearings held June 5, 2013, the entire record herein, the applicable law, and for the reasons set forth below, the Court finds the JDG’s new procedures invalid as they pertain to access to counsel and will GRANT petitioners’ motions in part and DENY petitioners’ motions in part.

After thirty-five pages the ruling ends as it began---with a quote of President Obama's NDU speech:

In closing his speech at the National Defense University, the President quoted Judge William Young.   See  Remarks by the President at the National Defense University.  In sentencing Richard Reid, the shoe bomber, Judge Young told him that “[t]he way we treat you . . . is the measure of our own liberties.”  Id.  Judge Young’s comment is equally apt when applied to the detainees at Guantanamo.
This Court is duty bound to protect the writ of habeas corpus as a fundamental prerequisite of liberty by ensuring that all those who seek it have meaningful and effective access to the courts.  For Guantanamo detainees, it is undisputed that access to the courts means nothing without access to counsel.  The JDG’s behavior, exemplified by the new search and meeting 35 procedures, flagrantly disregards the need for a light touch on religious and cultural matters that Admiral Walsh recognized years ago.  Further, the search procedures discourage meetings with counsel and so stand in stark contrast to the President’s insistence on judicial review for every detainee.  The Court, whose duty it is to call  the jailer to account, will not countenance the jailer’s interference with detainees’ access to counsel.
For the foregoing reasons, the Court finds  the challenged procedures and regulations invalid as they pertain to counsel access.  The Court further concludes, pursuant to ¶ I.E.34 of the Protective Order, that this Memorandum Opinion and the accompanying Order issued this date should not be designated as protected, but will be available on  the public record.  Given the limits of this Court’s jurisdiction, the Court’s holding does not affect the ability of the JDG to continue to administer the Guantanamo detention facility as it finds appropriate with respect to issues unrelated to counsel access.