Here’s your read-out on this morning’s oral argument, before Chief Judge Royce Lamberth, in what Lawfarers have come to know as the Guantanamo counsel access dispute. (Background can be found here, here, here and here.) The question was what kind of attorney access and related rules should apply, when Guantanamo detainees’ petitions for writs of habeas corpus have stopped---because the detainees voluntarily have dismissed or postponed them, or because the courts definitively have rejected them. This matters because, as the court and lawyers all acknowledged, circumstances can change over time. A shift in the facts and law (conditions in Yemen, for example) might revive a suspended petition for a writ of habeas corpus, or even permit a detainee to bring a successive petition, despite the initial petition’s failure.
In short, my strong suspicion, based upon the briefs and the courtroom discussion today, is that the district court eventually will rule for the petitioners. That would mean permitting the detainees’ lawyers to proceed according to a protective order originally entered by Judge Thomas Hogan, in 2008. His order applied to all Guantanamo habeas cases, and laid down procedures for, among other things, attorney-client communications, and the handling of classified information. A win for the petitioners would also mean rejecting the Justice Department’s proposed alternative: a “Memorandum of Understanding” that, in the government’s view (but not in the detainee’s), would provide for essentially the same access as the protective order. The court concluded by taking the matter under advisement. A written ruling is forthcoming.
Two observations about what transpired: first, Chief Judge Lamberth didn’t seem to be picking up what the government was throwing down, so to speak. Immediately after the argument got underway, the court said the protective order regime had been in place since 2008, and deemed satisfactory by government counsel and habeas counsel alike. In pressing Justice Department lawyer Jim Gilligan, the judge summarized the court’s view as amounting to “if it ain’t broke, don’t fix it.” As openers go, this did not seem to augur especially well for the respondents’ side. The court also added that the protective order was designed with input from the government, and blessed by each of the court’s district judges; that, as Chief Judge Lamberth recalled, the government initially viewed the protective order as surviving the resolution of individual habeas cases; and, lastly, that the government had not attacked the protective order since, either in the district court or on appeal. Suffice it to say that lots of doubt seemed to emanate from the bench, certainly more than I’ve seen in habeas litigation recently.
Of course, the government managed to push back a little---if not to any obvious effect. Gilligan clarified that, in the government’s view, only some protective order rules were meant to be permanent. But others – those most relevant here – were to lapse upon voluntary dismissal or final adjudication of the petitioners’ cases. Thus the need for new rules, and the government’s proposed Memorandum of Understanding (“MOU”) regarding continued attorney access. Gilligan also emphasized strongly that petitioners had not yet demonstrated any violation of their putative rights to counsel. (He invited the court to assume that Guantanamo habeas petitioners could claim such rights, but Gilligan specifically refused to concede the existence of a right to counsel in circumstances such as these.) Gilligan also recognized the difference between the MOU and protective order approaches, but said the difference was small.
Nevertheless, the court didn’t really push any of the detainees’ lawyers, all of whom attacked the proposed MOU and the draconian, down-the-road implications of an MOU regime. And the government’s attorney struggled to identify a present, pressing need for some new (if only somewhat different) access rules. When asked, the government conceded that habeas counsel never has disclosed classified information in violation of the protective order. Gilligan did mention some issues related to habeas counsel and contraband – but never went so far as to cite a disclosure that would support the adoption of new procedures for, among other things, the habeas lawyers’ access to national security information.
After roughly ninety minutes of back-and-forth, the hearing closed as it began--with Chief Judge Lamberth asking why the protective order safeguards were inadequate. That coda sounded roughly the same tune as the court’s opening remarks---which, again, didn’t seem especially sympathetic to the Justice Department.
The labor-intensity of the government’s effort raised this second thought, too: does its current position, regarding the MOU and the protective order, really further the government’s long-term objectives? Throughout the hearing, Gilligan was at pains to portray the MOU as not waiving any assumed-but-not-conceded rights to counsel. He repeatedly emphasized that, in the event of a violation of those rights---JTF-GMTO’ s unlawful refusal to allow, for example, counsel to meet with the client, or to review classified materials regarding the client’s case----the petitioners could come to court and vindicate them. At the same time, when asked, the lawyer seemed to agree with Chief Judge Lamberth’s claim that, to date, the protective order has yielded no litigation whatsoever, regarding a right to counsel, real or assumed.
It follows that chucking the protective order entails some added risk for the government. The status quo provokes no serious complaints from the habeas bar. In fact, habeas lawyers repeatedly have touted the protective order’s workability, both in written filings and during today’s argument. But the government’s proposed MOU disturbs the detainees’ lawyers, apparently a great deal. It seems fair to conclude that, if the government prevails, and manages to condition access on counsel’s execution of an MOU, then any access incident, however small, could spur litigation about a thus-far assumed-but-not-ever-demonstrated right to counsel. The district courts would have to resolve that dispute, and perhaps even take a position about the detainees’ underlying counsel rights. That’s not obviously a place the government desires to be, all things being equal. Of course, one can imagine reasons to depart from the protective order—for one, Gilligan referenced the need to limit access to classified information (and thus to reduce the risk of disclosure), while the detainees’ cases remained dormant. But does that really outweigh the burden and risk of almost guaranteed future litigation, regarding the right to counsel in a habeas case?