Guantanamo Litigation: District Court

A New Battle Over GTMO Attorney Access

By Benjamin Wittes
Wednesday, July 11, 2012, 4:22 PM

I received the following email from human rights lawyer David Remes about a filing he and his colleagues just made on Monday on behalf of his Guantanamo client Yasein Khasem Mohammad Esmail. Esmail lost his habeas case, and according to the filing, the government is now taking the position that he can no longer meet with his lawyers under the protective order that governed his case, because the case has been terminated. Instead, Remes alleges, the government is insisting as a condition of continued access that the lawyers sign a highly-restrictive memorandum of understanding.

We went to court Monday night to try to beat back DOJ's latest attempt to turn GTMO back into a legal black hole, as described below. In 2008, Obama the candidate deplored Guantanamo as a legal black hole. Does he know what his Justice Department is doing now? I'd be shocked if Eric Holder knew either. The issue is joined because what happens in court can affect a visit I plan to make to GTMO in August. When I go, DOJ may try to prevent me from seeing one of our Yemeni clients, Yasein Ismael. A copy of our motion is attached.

The government has begun asserting that the current GTMO protective order, which has governed GTMO attorney-client contacts since 2004, does not apply after a detainee's case has "terminated," by which the government seems to mean that  judicial proceedings in the client's habeas case have come to an end (and the client did not ultimately prevail). The government is asserting that counsel may no longer have contact with the client unless counsel signs a purported "post habeas" Memorandum of Understanding (MOU). . . . The MOU gives the Commander, Joint Task Force-Guantanamo (JTF) absolute, unreviewable control over attorney-client contacts, including whether to allow contacts at all. (I suspect DoD pushed the new policy on DOJ, but that's another story.)

Beyond giving JTF total [control over] attorney contacts with their detainee clients, the MOU appears calculated to prevent counsel from using information gleaned from the client to (1) continue to advocate the client's release through the media, collaboration with human rights groups, or proceedings in other forums, (2) share such information with counsel for other detainees, or even use such information in the case of another client, (3) discuss the client's possible transfer with potential receiving countries, or, (4) apparently, even prepare for Privilege Review Board (PRB) and military commission proceedings. The MOU will also apparently prevent us from preparing adequately for new habeas petitions if circumstances change. Further, the MOU expands the power of the Privilege Team (which decides what information we may and may not make public), opens the door to involvement in Privilege Team decisions by originating classifying agencies, and threatens the attorney-client privilege. The MOU also specifies that yet other, "separate procedures" will apply in PRB and military commission proceedings.

Other habeas counsel are facing the same problem.

As for deploring the legal black hole during the 2008 campaign: "Mr. Obama issued a statement calling the [Boumediene] decision 'a rejection of the Bush administration’s attempt to create a legal black hole at Guantánamo' that he said was 'yet another failed policy supported by John McCain.'" Kate Zernike, McCain and Obama Split on Justices’ Guantánamo Ruling, N.Y. Times, June 13, 2008. President Obama's full (I think) statement can be found here.

We're asking the court to make clear that the current access procedures in the long-standing protective order remain in force for these clients, and that the government is violating the protective order by requiring us to sign the new MOU as a condition of contact with Yasein, whose case the government asserts is "terminated." The government denied our request to meet with Yasein on our last visit, in May, unless we signed the MOU. We refused and so were kept from meeting with him. We're putting in a request to meet with Yasein when we visit GTMO in August.

The government has not yet responded, so I will reserve judgment for now. My tentative instinct, for whatever that may be worth, is that there may be a jurisdictional problem with letting attorney access be governed by a protective order in a case that is no longer in any meaningful sense pending. That said, I can't see offhand why access to counsel should not continue on the same basis as it took place under the protective order. As a prudential matter, even if the protective order can no longer governs access, why not replace it with something substantially similar?