Concerned that the federal government is moving to "hamstring" the rights of detainees at the Guantanamo Bay detention center, lawyers for detainees argued today against a new set of U.S. Department of Justice guidelines that would govern attorney-client relationships.
Protective orders issued by the U.S. District Court for the District of Columbia have since 2004 guided how attorneys can meet with their clients and how confidential information is handled. The government has asked attorneys for detainees who no longer have cases pending to sign a "memorandum of understanding" that would change some of those rules and give greater discretion to the commander of Joint Task Force-Guantanamo.
U.S. District Chief Judge Royce Lamberth pressed Justice Department lawyer James Gilligan about why the change was needed and why it wouldn’t run afoul of previous case law holding that detainees had a right to counsel to access the courts. Lamberth said he was "puzzled" by the move, given that lawyers on both sides hadn't run into problems with the protective orders so far, and that he was inclined to go by the old adage of, "If it ain't broke, don't fix it."
Gilligan said that the protective order was put in place to govern the attorney-client relationship for detainees with habeas cases pending. Once detainees moved for a voluntary dismissal or had their cases resolved in some other way, as was the situation with the detainees at issue, the game changed, he said. While lawyers might need to meet with detainees about future habeas petitions, he said, the U.S. Department of Defense should have oversight authority, not the courts.
In order for detainees and their lawyers to get injunctive relief against the memorandum, they had to show that the government was in some way restricting their access to the courts, Gilligan said, but so far they hadn't. It wasn't enough for detainees and their lawyer to present a "parade of horribles" about what could happen, he said. If detainees or their lawyers felt that they were being denied the right to access the courts under the memorandum, only then could they ask for relief, he added.
Lamberth said he was "reluctant" to allow the change, given the government's failure to protect detainees' rights to access the courts in the past when left to its own devices. That situation, he noted, was what led to the protective orders in the first place. Gilligan said the memorandum was mostly similar to the protective orders in allowing attorneys access to counsel, but that in the absence of a pending case, the executive branch should be allowed to make and enforce its own policy.
The memorandum diverges especially from the protective orders when it comes to accessing confidential files, according to counsel on both sides. Under the memorandum, detainee lawyers would have to get permission to review files and explain why they needed to access them. Gilligan said this was needed to make sure lawyers who no longer had a case pending had a reason for looking at potentially sensitive information.
Covington & Burling partner William Livingston, a counsel for two detainees at Guantanamo who would be affected by the change, began by stating that his clients' rights had already been harmed because his team wasn't allowed to meet with them after refusing to sign the memorandum. Livingston said the government failed to show that the protective orders weren't working, so allowing the change would disrupt the already-fragile attorney-client relationship for the government's benefit alone.
Giving discretion to the commanding officer would mean that base operational issues would suddenly take priority over access, Livingston said, also noting that if a problem did come up, his clients would suffer by having to wait through yet another lengthy court battle.
"They're essentially saying, 'trust us, trust us,'" Livingston said. "But there's no well of trust here." He said that the detainee lawyers fear that the memorandum would open the door to future restrictions on access. For instance, he said that the government had already indicated that it planned to limit detainees without cases pending to two lawyers. Over time, Livingston said, the government could trim that to one lawyer, or only allow lawyers to visit at certain times.
"Our fear is that they're looking to hamstring the habeas process," he said.
Lamberth also heard brief arguments from lawyers for other detainees – Washington solo practitioner Stephen Truitt, Rebecca Briggs of Orrick, Herrington & Sutcliffe, and Jennifer Cowan of Debevoise & Plimpton – who echoed Livingston's statements.