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Washington-Despite a huge victory in the U.S. Supreme Court two months ago, lawyers for Guantanamo Bay detainees are girding for another hard-fought battle with Justice Department litigators as the detainees seek habeas relief in federal court here. The district court has yet to hear the merits of any of the 14 petitions brought on behalf of nearly 60 aliens being held at the U.S. Naval Base at Guantanamo Bay, Cuba. Instead, lawyers on both sides have been fighting over what access the detainees’ counsel should have to their clients. Justice Department lawyers contend that the detainees have no right to counsel, but the government will allow them to meet with counsel under prescribed conditions. The detainees’ lawyers argue that two Supreme Court rulings in June establish a right to counsel for their clients. The government’s conditions for access to their clients, they say, would destroy the possibility of effective representation. “Here we are in mid-August now and no one has seen their clients,” said Eric Freedman of Hofstra University School of Law, counsel to several detainees. “If this represents the thought-out position of the U.S. government as a whole, then it’s predictable that the executive branch will be facing an even more stinging judicial rebuke than that which its claims of unilateral power have already provoked.” The government’s positions thus far are not frivolous, said some scholars, but neither are they a slam-dunk. “There’s every indication the government is not going to concede any ground,” said Timothy Lynch, director of the Criminal Justice Project at the Cato Institute. “Every inch is going to be a battle.” A 6-3 high court ruled on June 28 in two cases involving Australian and Kuwaiti detainees that federal courts do have jurisdiction to determine the legality of some 600 detainees at the naval base. Rasul v. Bush; Al Odah v. U.S. The justices reached that result after rejecting the Bush administration’s arguments that a World War II-era precedent applied to bar jurisdiction and that Guantanamo Bay was not U.S. territory-an element of habeas jurisdiction-because it belongs to the sovereign nation of Cuba. Writing for the majority, Justice John Paul Stevens said that the detainees’ cases were markedly different from the World War II precedent. He also held that the United States exercises total control and jurisdiction over Guantanamo Bay indefinitely. Habeas jurisdiction extends to people within the territorial jurisdiction of the United States, and so jurisdiction extends to Guantanamo Bay, he concluded. On remand, the government in Al Odah argued before Judge Colleen Kollar-Kotelly that aliens detained by the military outside the sovereign territory of the United States and lacking a sufficient connection to this country have no constitutional rights. In determining whether an alien is present in the United States and has constitutional protection, the government said: “What matters is not whether the alien is located within territory over which the United States exercises control, but whether the alien is within territory over which the United States exercises sovereignty.” Despite no right to counsel, the government added, it would permit access to counsel to facilitate the habeas litigation with the following conditions: counsel must obtain security clearance; information exchanged between counsel and a detainee must undergo a classification review; and, where appropriate, communications must be monitored. The government also seeks restrictions on the disclosure of classified information and the use of other information outside of the preparation or conduct of the litigation. Ridiculous, outrageous, contemptuous-these are just a few of the adjectives used by the detainees’ lawyers to describe the government’s arguments. “There is a right to counsel,” insisted the Kuwaitis’ counsel, Thomas B. Wilner of New York’s Shearman & Sterling. “The government’s position just ignores the clear holding of [ Rasul] and tries to circumvent the holding. “Secondly, the idea they would need to monitor lawyer-client communications is absolutely unnecessary to protect national security,” he added. “The government said we could be used as agents. We said, ‘Fine. We’ll agree not to disclose anything at all unless there is an agreement with the government or it’s filed under seal with the court.’ That way we can’t be conduits. Nonetheless, they did not agree.” Wilner, his legal team and lawyers for the Center for Constitutional Rights (CCR), which represents the Australians, contend that a habeas petitioner’s right to counsel is so clearly established that Justice Sandra Day O’Connor, in Hamdi v. Rumsfeld, a second terror-related ruling that same June day, summarily dismissed the government’s arguments to the contrary by saying: “[Hamdi] unquestionably has the right to access to counsel in connection with the proceedings on remand.” Hamdi involved an American enemy combatant’s habeas rights. Last week, an Eastern District of Virginia judge set an Aug. 30 merits hearing on his petition. Wilner and his colleagues also contend that Stevens in Rasul recognized the right to counsel in a footnote in which he said that the detainees’ allegations-that they are innocent and are held in executive detention in territory subject to U.S. jurisdiction without access to counsel and without being charged-”unquestionably describe ‘custody in violation of the Constitution or laws or treaties of the United States.’” “It’s our feeling the government is acting like Rasul never happened,” said Jeffrey Fogel, CCR’s legal director. “Their analysis is not only there is no right to a lawyer but there are no substantive rights. They are saying the Supreme Court decision was an exercise in futility.” Cato’s Lynch and Michael Greenberger, director of the Center for Health and Homeland Security at the University of Maryland School of Law, both believe that O’Connor’s statement in Hamdi may apply only to citizen enemy combatants, but that lower courts will have to struggle with it. Although there is no right to counsel for noncapital, federal and state habeas prisoners, those inmates are not being held incommunicado, “a critical difference,” said Lynch. The government is now holding status hearings at Guantanamo Bay, something the Rasul and Al Odah lawyers and others have argued should have been done almost three years ago, said Greenberger. Those hearings historically have been done in the field, with the arrest or detention, he said, and never contemplated the presence of lawyers. But holding hearings three years after capture or arrest presents a “dramatically different” situation, he said. Greenberger and others said they believe the government is conducting the hearings to build a record that it can present to a habeas court and demands considerable deference. The detainees’ lawyers are already anticipating that step even as they await Kollar-Kotelly’s ruling on the counsel issues. “There’s no question they would like to go to the district court with their own package of evidence,” said CCR’s Fogel. “It’s our position they are using the wrong legal standard to determine who is an enemy combatant. It’s not the standard . . . in Hamdi. Nothing done in those tribunals will be of use in the habeas proceedings, and the court will have to hold its own evidentiary hearings,” he said.

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