No Comment — September 7, 2012, 1:12 pm

A Stinging Rebuke of the DOJ on Access to Counsel at Gitmo

The Bush Administration originally created special-detention facilities at Guantánamo on the theory that—given the unique historical provenance of the base, which was secured under a lease at the end of the war with Spain on terms Havana no longer recognizes—no court anywhere in the world would have jurisdiction to deal with the complaints of prisoners held there. Consequently, it would be easier to subject the prisoners to torture and other cruel, inhuman, and degrading treatment the likes of which America’s prisoners in wartime had never before experienced. The Supreme Court soon put an end to this exercise, and a series of court rulings ensured that indeed there would be a form of court review and that prisoners would have access to counsel.

While Barack Obama campaigned on a promise to end torture and to humanize and then close Guantánamo, this promise has been left unfulfilled, in part because of Obama’s lack of resolve and in part because of the obstructionist games practiced by Republicans. Obama has chosen to disengage from the Guantánamo issue, and in doing so has essentially placed operations there on autopilot. And that has produced a remarkable degree of backsliding to the practices of the Bush era.

A clear-cut example recently emerged when lawyers serving as defense counsel at Guantánamo discovered that they were arbitrarily being denied access to their clients on the orders of a military commandant, despite a series of court orders dating back to 2004 that had guaranteed them access. The Obama Administration had put in place new rules under which only those prisoners who are actively challenging their detention are guaranteed the right to talk to counsel; otherwise the commandant has the right to deny access. Moreover, to have any access to clients at all, the lawyers were being pressed to sign a “Memorandum of Understanding” with the Department of Defense under which they consented to these new rules.

But the Guantánamo bar took the Obama Administration to court, and yesterday they won a resounding victory. Chief Judge Royce Lamberth’s decision (.pdf) was not only an uncompromising vindication of the posture of lawyers who have provided pro bono counsel to Gitmo inmates for years, it was also caustic in its dismissal of the arrogant and meritless arguments of the Justice Department:

  • “The Government’s reasoning is substantially flawed and confuses the role of the jailer and the judiciary in our separation-of-powers scheme.”

  • “[T]he Court is somewhat nonplussed as to why the counsel-access issue is being re-litigated at all,” in light of the existence of a court order that the government was obviously attempting to subvert.
  • The court explained why counsel was needed: “[T]hese petitioners, who speak no English, have no legal training, and who cannot be expected to remain up to date with new legal and political developments can have the requisite tools to bring habeas petitions without access to counsel.”
  • Dealing head-on with the government’s claims that it could change the court order through its military-power fiat, Lamberth wrote “[T]he Government actions thus far demonstrate that it cannot be trusted with such power.
  • He dispatched the Justice Department’s argument that the prisoners could act pro se (without counsel) as “quite preposterous,” stating that “the Court cannot take this contention seriously.”

On the other hand, the court was unstinting in its praise for the tireless work of the pro bono counsel who have served the Guantánamo population for years, and who flagged the Justice Department’s latest exercise in creative despotism. “The Court would like to note that pro bono counsel in these cases have worked diligently to provide detainees with competent legal counsel. It would have been difficult and costly for the Court to manage its Guantanamo docket without the help of pro bono counsel. They have acted in the highest spirit of our profession.” Lamberth went on to quote my friend Andrew Cohen at The Atlantic, who wrote that:

At its core, pro bono legal work is charity work. It is done by those with a particular expertise—lawyers, paralegals, investigators—on behalf of those who cannot afford to help themselves. It is both a gift and an ethical obligation that the legal community in America has undertaken since before the Revolution. . . . [Detainees held at Guantánamo Bay] deserve under our rule of law to be represented by attorneys. This is so because by providing these men with lawyers we say, both to the detainees and to the rest of the world, that we are better, that we are fairer, than those we fight.

Barack Obama seemed at one point to appreciate this focal lesson. On the other hand, his Justice Department is so obsessed with the vindication of arbitrary and capricious exercises of power that it seems to have concluded that upholding the laws and the Constitution—to the extent that they impose obligations on, rather than grant rights to, the government—is a secondary consideration. And that, in a nutshell, explains the public’s current lack of confidence in the Justice Department.

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