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Detainees Prevail in Counsel Access Dispute

Wells Bennett
Thursday, September 6, 2012, 4:45 PM
Chief Judge Royce Lamberth's order is here.

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Chief Judge Royce Lamberth's order is here. A few quick things about the ruling, which I've only skimmed thus far: 1.  The bottom line is that the protective order's access rules will continue in effect for detainees whose cases have been dismissed voluntarily, or adjudicated fully.  That's a rock solid win for the detainees (though, perhaps, not an entirely crushing defeat for the government---as I explained earlier, the respondents' proposed substitute - a "Memorandum of Understanding" ("MOU") regarding continued access - posed a significant litigation risk for the government in the long run). 2.  The court stoutly rejects the government's claim that the MOU would provide "essentially the same" provisions as the protective order did.  In rejecting it, the court quotes Hamlet, and casts the court as Gertrude and the Department of Justice as the Player Queen.   The government's lawyers greatly overemphasized the MOU's near-equivalence to the protective order, in Chief Judge Lamberth's view---for that reason, he writes that the "the Lady doth protest too much, methinks."  So yes, it turns out there was a lot of doubt emanating from the bench during oral argument.  The judge's order said he was "somewhat nonplussed as to why the counsel access issue is being re-litigated at all."  Curiously, he even went so far as to conclude that the executive branch lacked authority to offer an MOU to petitioners in the first place. 3.  It is neither here nor there, but the order's "legal background" section opens with this eyebrow raiser:
It is a sad reality that in the ten years since the first detainees were brought to Guantanamo Bay not a single one has been fully tried or convicted of any crime.
Hmmm.  This may be a strained and exceedingly delicate way of saying that thus far,  detainees facing prosecution have only a) pleaded guilty; b) pleaded guilty but not proceeded to sentencing; or c) been convicted, but not yet seen final appellate rulings. I doubt it, though, as the text has the feel of a lament about protracted legal limbo for detainees.  In that respect it seems to ignore folks like David Hicks, Ahmed Ghailani, Salim Hamdan, Majid Khan, and so on -- all of whom have been prosecuted, and either admitted guilt or been tried to verdict. UPDATE [5:30 p.m]: regarding item #3, above, it appears the court meant to say "[i]n the ten years since the first detainees were brought to Guantanamo Bay, only a handful have been tried or convicted."  How do we know?  Chief Judge Lamberth just issued an order saying so, along with an amended version of his counsel access ruling.

Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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