A federal judge in Washington, in a strong rebuke today against the government, refused to change the rules that have long governed communication and meetings between Guantanamo Bay detainees and their lawyers.
Chief Judge Royce Lamberth ruled against an attempt by the U.S. Justice Department to put more control in the hands of the Defense Department over counsel-access issues in certain cases. DOJ lawyers argued the changes should apply to detainees and their lawyers who are no longer actively litigating a detention challenge. Lamberth's decision is here.
Lawyers for detainees assailed any change to the rules that controlled their access to the base and to their clients. Lamberth today sided with the detainees' counsel, calling the government's effort to modify existing rules an "illegitimate exercise of Executive power." A protective order, the judge said, has been in place for four years without any notice from the government that an attorney has violated the rules.
"The old maxim 'if it ain't broke, don't fix it' would seem to caution against altering a counsel-access regime that has proven safe, efficient and eminently workable," Lamberth said today in his ruling. "Indeed, the government had no answer when the court posed this question in oral arguments."
A Justice Department spokesman, Dean Boyd, said the government is reviewing the decision.
David Remes, who challenged the government's proposed counsel-access rules, said in an interview the government from the very beginning fought to block legal representation for detainees.
"The government lost in court before, eight years ago, and it’s lost again in this case," Remes said. "I doubt the government is going to give up. The government will try every means possible to separate the detainees from their counsel. This is the latest round, but it’s by no means the end."
Lamberth, who presided over a hearing in the dispute in August, said the government's position in the litigation is not unreasonable. But, he said, the proposed two-tier scheme—in which lawyers handling inactive or terminated detention cases must follow different rules than attorneys involved in active detention disputes—is "untenable."
DOJ lawyers argued that a ruling in favor of the detainees and their lawyers would amount to a permanent injunction and a violation of the separation of powers doctrine. The executive branch, DOJ lawyers said, has the right to control access to Guantanamo and to control classified information.
Lamberth said the government's "objection does not pass the smell test." The judge noted that the protective order addressing counsel-access and classified information has remain unchallenged for four years.
The government's "memorandum of understanding," or MOU, which would have superseded the protective order, "not only threatens separation-of-powers principles by usurping the judiciary's duty to ensure access to the courts, it also takes from the courts the power to adjudicate controversies relating to the MOU," Lamberth said.
An attorney representing a detainee, the judge said, could be denied access to his or client whenever the Guantanamo commander points to "operational needs or logistical constraints." The government, Lamberth said today, had no legal authority to "unilaterally impose a new counsel-access regime."
"If separation of powers means anything, it is that this country is not one ruled by executive fiat," Lambeth said. "Such blanket, unreviewable power over counsel-access by the executive does not comport with our constitutional system of government."