Armed Conflict Courts & Litigation Criminal Justice & the Rule of Law Terrorism & Extremism

Justice Department Response on GTMO Counsel Access

Wells Bennett
Tuesday, August 7, 2012, 2:41 PM
The Justice Department today filed its response to a motion, in which certain Guantanamo detainees had challenged the Department's attempt to regulate the detainees' access to their attorneys.

Published by The Lawfare Institute
in Cooperation With

The Justice Department today filed its response to a motion, in which certain Guantanamo detainees had challenged the Department's attempt to regulate the detainees' access to their attorneys.  The question was what that access would look like, once the petitioners' cases were resolved. Four detainees initially had moved to voluntarily dismiss their cases, while at the same time preserving the same counsel access rights they enjoyed during habeas litigation; attorneys for two other detainees also desired access to their clients on the same terms as before, even though those detainees' habeas cases had been fully (and, from the detainees' perspectives, unsuccessfully) litigated. By way of a solution, the government proposed that the detainees' attorneys sign a Memorandum of Understanding regarding, among other things, the rules for future attorney-client meetings and the use of new information learned during such meetings.  Habeas lawyers - including David Remes, who wrote to Lawfare on the subject - objected and filed a motion in the district court; in it, those lawyers sought continued access to their clients, on the same terms as had been set by protective orders entered in the detainees' habeas cases.  The Justice Department then requested that a single district judge resolve the issue, for the present cases and all other cases to be concluded in the future. Here are the opening paragraphs of the government's response brief: 
Petitioners Abdu Al-Qader Hussain Al-Mudafari (ISN 40), Hayal Aziz Ahmed Al- Mithali (ISN 840), Mohammed Rajeb Abu Ghanem (ISN 44), and Zakaria Al-Baidany (ISN 1017), aliens detained at the U.S. naval base at Guantanamo Bay, Cuba, have moved for voluntary dismissal of their habeas petitions without prejudice, conditioned, however, on orders from this Court mandating that they be granted continued, privileged access to their counsel under the same terms and conditions as provided for under the Protective Order that governs their cases.  In the alternative, but to the same effect, Petitioners Al-Mudafari and Al-Mithali seek indefinite stays of their cases so that the Protective Order and its provisions for mandatory counsel access will remain in place.   Yasein Khasem Mohammad Esmail (ISN 522) and Uthman Abdul Rahim Mohammed Uthman (ISN 27) are also aliens detained at Guantanamo Bay, but whose habeas petitions have been fully and finally adjudicated and denied.  They have similarly filed motions seeking rulings that they are entitled to continued, court-ordered counsel access under the Protective Order that governed their cases, notwithstanding that they no longer have pending habeas petitions. The Government consents to the Petitioners’ requests to dismiss their pending castheir pending cases without prejudice, but objects to the requests made by all six detainees (hereinafter, the “Movants”) for court-ordered counsel access in the absence of pending habeas litigation.  The Government is voluntarily providing detainees in appropriate cases, including the detainees here, with continued counsel access following dismissal of their habeas cases, to the extent provided, and on the terms set forth, in the attached memorandum of understanding (MOU).  Pursuant to the terms of the MOU, the Movants can continue to meet with and otherwise communicate with their counsel in essentially the same ways as are provided for by the Protective Order.  Movants thus retain under the MOU the access to their counsel needed to prepare any future habeas challenge. There is thus no basis for this Court to issue what is in effect a permanent injunction that would require the Executive Branch, in the absence of active or impending habeas litigation, to grant Movants’ counsel ongoing rights of access to the military detention facility at Guantanamo Bay, and of access to classified national security information. Movants’ contention to the contrary is based on a series of mischaracterizations of the Government’s position and the MOU.  The Government does not contend, for example, that the right to habeas review recognized in Boumediene v. Bush, 553 U.S. 723 (2008), is extinguished once a detainee’s initial habeas petition is dismissed, or even denied.Detainees retain the right, in appropriate circumstances, to file successive petitions.  Likewise, the Government does not contend here that detainees whose petitions have been dismissed or denied have no entitlement thereafter to the assistance of counsel, or must fend for themselves in court if they file new habeas cases.  Indeed, for purposes of deciding the motions at bar, the Court may assume otherwise – that detainees seeking to challenge the lawfulness of their detention, whether for the first time, or thereafter, are entitled to the assistance of counsel.  Finally, the Government does not require detainees, as a condition of access under the MOU, to waive whatever right to counsel they may have under federal law.  The express terms of the MOU make that clear.
Interestingly, the government elsewhere notes that, in fact, some habeas counsel have signed the MOU:
To date, counsel representing five detainees (Mohammed Al-Adahi (ISN 33), Fawzi Khalid Abdullah Fahad Al-Odah (ISN 232), Suleiman Awadh bin Aqil Al-Nahdi (ISN 511), Faez Mohammed Ahmed Al-Kandari (ISN 552), and Fahmi Salem Said Al-Assani (ISN 554)) have executed the MOU.
[This post was updated at 9:20 p.m.]

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.

Subscribe to Lawfare