The restrictions apply to some detainees at the U.S. base in Cuba whose bids to challenge their confinement have been denied or dismissed. In those cases, lawyers must sign a “memorandum of understanding” to continue to be able to meet their clients. The memorandum says any meetings or communications with their clients are “subject to the authority and discretion” of the Guantanamo Bay commanding officer.
“If it ain’t broke, don’t fix it,” said U.S. District Chief Judge Royce Lamberth, at a hearing on a challenge to the new restrictions by lawyers for some of the detainees. “It doesn’t seem to be broken ... That’s why I’m reluctant to change it.”
Lamberth was referring to a 2008 District Court protective order laying out the procedures for Guantanamo detainees’ access to legal counsel. There are nearly 170 men at Guantanamo.
“I can’t for the life of me” figure out why the government has taken this position, the judge told a Justice Department official.
The official, James J. Gilligan, assistant director of the Civil Division’s federal programs branch, said he anticipated the new system will operate “nearly identically” to the one that’s been in place since 2008. He said that so far, lawyers for six detainees have signed the MOU.
“We have not done anything to threaten detainees’ access to counsel,” Gilligan said, adding that if lawyers are improperly denied access, they could challenge that in court.
“As far as access to the base, we are not asking for anything different,” he added.
Gilligan said the main difference is the access that the lawyers have to classified information. Under the memorandum of understanding, lawyers won’t have access to classified documents that they obtained or created as part of the detainees’ previous habeas corpus cases. But they could request the information by submitting the justification to the Defense Department, which would make a “need-to-know determination.”
Lamberth, who was appointed to the court by President Ronald Reagan, said that the message the government wants to send is: “We’re in charge. Not the court.”
Gilligan insisted that the government was not taking away the rights of detainees to meet with their lawyers, and said it was unnecessary for the court to issue any kind of ruling on behalf of the six detainees challenging the new policy. Two of the detainees have had their habeas corpus petitions denied. Four others have asked to have their habeas corpus petitions dismissed, but with the opportunity to bring the petitions back.
Bill Livingston, one of the lawyers for the first group — two Yemenis — said the government is essentially saying: “Trust us.” Livingston, whose legal team has refused to sign the MOUs, compared the situation to Lucy pulling the football away from Charlie Brown.
“Unlike Charlie Brown, we’re not as trusting,” he said.
“The MOU guarantees nothing,” he said. Noting that it calls for any disputes to be resolved in the “final and unreviewable discretion” of the Guantanamo commander, Livingston said, “Why should we agree to such a thing?”
Livingston said his two clients have been in Guantanamo for 10 years, and haven’t been charged with a crime. He said neither speaks English, and neither is in a position to make an assessment of his legal rights without legal representation.
Lamberth said he agreed, and he also praised the lawyers for taking on the unpopular cases.
“The court is very grateful,” he said.
Source: The Washington Post