Rules governing legal representation at the Guantánamo Bay detention center have been in place for nearly eight years now, providing judicial oversight and a road map of prohibited conduct.
But that blueprint could be supplanted by a new set of guidelines, roiling attorneys who represent detainees and prompting a legal fight in Washington’s federal trial court to block enforcement of a new policy the U.S. Justice Department is advancing.
Lawyers representing Guantánamo detainees whose petitions for release are no longer pending have been asked to sign a “memorandum of understanding” that says continued access to, and communication with, prisoners is subject to the authority and discretion of the commander of Joint Task Force-Guantánamo.
The judiciary now holds the power to monitor the contours of legal representation. If a detainee’s detention challenge is exhausted through appeal, or voluntarily withdrawn, then the new attorney-client rules would remove that judicial check and put control in the hands of the U.S. Department of Defense.
Several lawyers have refused to sign the document, saying that the proposal gives too much control to an adverse party — the Defense Department — and potentially limits communication between attorney and client. Chief Judge Royce Lamberth of U.S. District Court for the District of Columbia will preside over a hearing August 17. An underlying question is this: What attorney-client rights do Guantánamo prisoners have if a challenge to continued detention is not pending?
A team from Covington & Burling, working with human rights lawyer David Remes, said in challenging the proposed changes that court-issued protective orders, in place since 2004, are “time-tested and workable.” Other attorneys, including a team from Debevoise & Plimpton, are backing the legal fight. “It’s hard to see the justification for changing the rules at this point,” Debevoise litigation counsel Jennifer Cowan in New York said in an interview. “As a practical matter, everyone knows the rules.”
DOJ lawyers involved in the dispute declined to comment. Lamberth ordered the government to file a formal response by August 6. A spokesman for the Defense Department declined to comment.
A DOJ national security spokesman, Dean Boyd, dismissed the notion that the proposed guidelines substantively change attorney-client relationships. Any detainee who is subject to the new guidelines, Boyd said, can still meet and discuss sensitive matters with a lawyer. As of early July, 168 detainees remain at the detention center in Guantánamo Bay.
If a detainee believes the new policy is not adequate, Boyd said, the prisoner is free to petition the court for greater access to counsel. Boyd said there is no waiver of legal right to counsel.
“The [memorandum of understanding] is an appropriate regime for access by counsel to detainees in the absence of a live habeas case,” Boyd said in an email. The government, he said, “is exercising its discretion to offer continued counsel access, despite termination of the habeas case, and providing essentially the same means of access (counsel visits, privileged legal mail, phone calls) as afforded under the habeas order.”
In April, a DOJ Civil Division lawyer, David Avila, argued in one detainee’s case that continued court-ordered counsel access should not be permitted.
The detainee’s request, Avila said in court papers, amounted to an injunction that “would require the Executive Branch, in the absence of an active habeas case, to grant his counsel ongoing rights of access to a military detention facility on foreign soil, and of access to classified national security information. “
Allowing the continuation of court-ordered counsel access, Avila said, “would represent an unjustified encroachment upon the Constitutional prerogative of the Executive Branch to determine who may have access to a military base, and who may have access to classified information.”
Lamberth in July consolidated several legal challenges in detainee cases in order to issue a single ruling. DOJ lawyers proposed bringing the issue into one courtroom, to minimize the risk that federal trial judges in Washington would issue disparate rulings.
Remes is leading the fight against the proposed policy shift over counsel access. Earlier this year, DOJ lawyers told him he had to agree to the new conditions to meet a detainee, whose petition for release from Guantánamo was no longer active. Remes refused, and was denied access to his client.
That a detainee’s case is not active, lawyers for Guantánamo prisoners say, should not change the parameters of attorney-client relations. A follow-up petition for release, the lawyers said, is always an option.
Remes and the Covington team, which includes senior counsel S. William Livingston and partner Alan Pemberton, who heads the firm’s government contracts practice, contend that as long as a prisoner remains detained, he retains the right to “pursue any legal avenues” to obtain release.
Remes and the attorneys fighting the proposed changes describe certain provisions as too restrictive. For instance, the proposed guidelines prohibit a lawyer from having access to classified information that was obtained or generated during the representation of the detainee in his terminated case challenging detention.
Also, Remes said in an interview, the proposed changes narrow what a lawyer can do with certain information — for instance, they would restrict the ability of an attorney to use material to rally public attention to a case, or to coordinate with other human rights organizations.
“The memorandum of understanding that the Justice Department has dropped on us makes it nearly impossible to do our jobs as lawyers,” Remes said. Later he added, “Counsel must do their jobs in fear that at any moment they could lose their security clearance if the commander disapproves of what they are doing.”
Mike Scarcella can be contacted at firstname.lastname@example.org.