The executive branch of the federal government had attempted to control the detainees’ access to their attorneys through a unilaterally-imposed Memorandum of Understanding (MOU), which the court found objectionable and contrary to the clear language of the protective order.
Six separate motions filed by long-term Guantanamo detainees were consolidated for the purpose of resolving the issue of whether the district court’s protective order constituted an “abuse of discretion as it would result in a permanent injunction without the required showing of actual harm necessary for such an ‘extraordinary remedy,’” as the government argued in its opposition to the motions.
The court reviewed various prior decisions that had been entered regarding the detainees, including Rasul v. Bush, 542 U.S. 466 (2004) [PLN, July 2004, p.9], Hamdan v. Rumsfeld, 548 U.S. 557 (2006) [PLN, Sept. 2006, p.27] and Boumediene v. Bush, 553 U.S. 723 (2008) [PLN, Dec. 2008, p.20], all of which served to protect the detainees’ right to counsel.
Those rulings were further interpreted in Al Odah v. United States, 346 F.Supp.2d, 1 (D.D.C. 2004) [PLN, June 2005, p.30], which recognized that the court had the “power to ‘fashion procedures by analogy to existing procedures, in aid of the Court’s jurisdiction and in order to develop a factual record as necessary for the Court to make a decision on the merits’” of the detainees’ habeas petitions.
Concerned about possible disclosure of state secrets and security breaches, the district court, in the matter of In re Guantanamo Detainee Cases, 344 F.Supp.2d 174 (D.D.C. 2004), had set guidelines for attorney access to both detainees and classified information. That order stood without objection for four years until it was superseded by the protective order issued by a different judge in 2008.
Apparently not satisfied with the current posture of the case and the provisions of the protective order, the government promulgated the MOU – which stripped the detainees’ counsel of their “need to know” access to government records and “explicitly denie[d] counsel access to all classified documents or information which counsel had ‘previously obtained or created’ in pursuit of a detainee’s habeas petition.” Instead, “need to know” determinations regarding counsel’s access to classified information would be made by the Department of Defense Office of General Counsel (DOD OGC), with few of the safeguards set forth in the 2008 protective order. The government contended that the protective order expired whenever a detainee’s habeas petition was terminated.
According to the protective order, all “disputes regarding the applicability, interpretation, enforcement, compliance with or violations” of the order are to be resolved by the district court. However, “The MOU ... states that both the ‘operational needs and logistical constraints’ at Guantanamo as well as the ‘requirements for ongoing military commissions, periodic review boards, and habeas litigation’ will be prioritized over [detainees’] counsel-access.”
The district court found this “particularly troubling as it places a detainee’s access to counsel, and thus their constitutional right to access the courts, in a subordinate position to whatever the military commander of Guantanamo sees as a logistical constraint.”
The court noted that the Great Writ of habeas corpus “lies at the core of this Nation’s constitutional system, and it is the duty of the courts to remedy lawless Executive detention”; further, that “the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to the ‘erroneous application or interpretation of relevant law.’” Additionally, “access to the court [means] nothing without access to counsel.”
The district court also found that the government’s MOU “transgresses on the judiciary’s duty to ensure detainees have access to the courts by giving the military unreviewable discretion over counsel-access questions,” that the government lacked authority to issue the MOU, that the court was well within its equitable powers, and that the history and terms of the protective order made it clear that the order remained in effect even after the dismissal or denial of a detainee’s habeas petition.
In reaching its conclusion, the district court noted that “petitioners here have a continuing right to seek habeas relief.... have an ongoing right to access the courts and, necessarily, to consult with counsel. Therefore, the Government’s attempt to supersede the Court’s authority is an illegitimate exercise of Executive power.... This very notion [of the MOU] offends the separation-of-powers principles and our constitutional scheme.” Consequently, the court held that the protective order remained in effect for all of the effected detainees whether or not their habeas petitions had been dismissed.
On July 11, 2013, the district court granted in part and denied in part a separate “emergency motion to enforce the right of access to counsel” filed by two of the detainees. The court held that certain new search and transportation procedures adopted by the Joint Detention Group, which is responsible for detention operations at Guantanamo, were “invalid as they pertain to access to counsel,” and amended the protective order accordingly. See: In re: Guantanamo Bay Detainee Continued Access to Counsel, U.S.D.C. (D. DC), Case No. 1:12-mc-00398-RCL.
The government has filed an appeal with the DC Circuit Court of Appeals, which remains pending.
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Related legal case
In re: Guantanamo Bay Detainee Continued Access to Counsel
|Cite||U.S.D.C. (D. DC), Case No. 1:12-mc-00398-RCL|