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The Latest Salvo(s) in the Battle for GTMO Counsel Access

Wells Bennett
Tuesday, August 14, 2012, 3:44 PM
This just in: the last words (for a few days, anyway) in the Guantanamo attorney-client access dispute now pending before Chief Judge Royce Lamberth of the U.S.

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This just in: the last words (for a few days, anyway) in the Guantanamo attorney-client access dispute now pending before Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia. Guantanamo detainees Uthman and EsmailAl-Mudafari and Al-Mithali, and Al-Baidany yesterday filed replies to the government’s response brief regarding counsel access.  (Counsel for Uthman and Esmail filed jointly, as did counsel for Al-Mudafari and Al-Mithali; the third and final reply brief was filed on behalf of Al-Baidany alone.)  A sixth detainee, Mohammed Ghanem, moved to strike the government’s response, on the ground that the counsel access question is not properly before Chief Judge Lamberth.  Ghanem’s attorneys claim that the matter was never transferred to Lamberth from Judge Kollar-Kotelly, who heard Ghanem’s habeas case initially. For good measure, and in recognition, dear reader, of your steadfast dedication to things Lawfare, you lastly may have a look at this, too: an amicus-esque letter, filed in support of the counsel access petitioners by the National Association of Criminal Defense Lawyers.  Yesterday's filings make some good arguments – among them, that the government's proposed "Memorandum of Understanding" ("MOU") regarding attorney-client access does not, in fact, provide for access on “essentially” the same terms as the protective order did. For my part, I reckon the dispute’s resolution will turn on practical considerations – which seem to favor the petitioners.  That’s not to ignore some of the government’s more plausible claims, of course.  It should matter, for one thing, that some detainees’ lawyers have executed the Justice Department’s proposed MOU – either the original one, or the document revised in light of petitioners’ initial complaints.  (The revision makes clear that, by signing the MOU, detainees do not waive their rights to counsel.)  This could mean only that certain detainee lawyers have conferred with their clients, and concluded that signing the MOU (and forgoing a more generous set of access rules) is appropriate under the particular circumstances of this or that case.  But it might also mean that, contrary to the claims of other petitioners, the MOU regime is not as awful as petitioners say it is. And yet, consider what is (in my view) the petitioners’ strongest argument: practically, how does preservation of the status quo – the access regime set by Judge Hogan’s protective order, four years ago – really hurt the government?  Thus far, that mechanism has enabled, in a (more or less) mutually acceptable fashion, habeas counsel to arrange for attorney-client meetings, and the government to protect its national security prerogatives.  If, as it appears, the government doesn’t really contest the court’s power to continue that framework, even after voluntary dismissal or a final judgment, then the government’s practical need to make a change, now, ought to be front and center.  Even more so, considering petitioners' legal complaints about the MOU. If it ain’t broke, right?  We’ll have a better, if not quite definitive, sense of whether things will need fixing, come this Friday at 10 a.m. – when Judge Lamberth will hear oral argument.  Stay tuned.

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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