The U.S. Justice Department has abandoned its fight over proposed rules governing attorney conduct at the Guantanamo Bay naval facility, dropping the case before an appeals court could dig into the dispute.
DOJ lawyers lodged the case in the U.S. Court of Appeals for the D.C. Circuit in November, setting up a legal fight over a judge’s ruling in which the proposal was rejected as unnecessary and an “illegitimate exercise” of executive power.
The proposed rules, giving more control to the military command of the naval base, would have applied to lawyers representing detainees whose cases are no longer pending. Chief U.S. District Judge Royce Lamberth, in Washington, questioned the need for changing up a scheme that had been in place since 2004.
“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 in his ruling in September. “Indeed, the government had no answers when the court posed this question in oral arguments.”
The government walked away from the case on December 14, the deadline for DOJ to file a “statement of issues” in the D.C. Circuit. In the trial court, DOJ lawyers argued that a ruling for counsel for detainees would mark a separation of powers violation — stripping authority from the executive branch to control access to classified information. Lamberth said in his opinion that the government lacked legal authority to “unilaterally impose a new counsel-access regime.”
A DOJ spokesman declined to comment on the decision to end the appeal. The department’s Office of the Solicitor General decides whether to pursue an appeal of a decision adverse to the government.
Lawyers who represent detainees assailed the government proposal, arguing that voiding a protective order threatened to wrest from the judiciary its duty to ensure that detainees have access to the courts. The government’s proposed “memorandum of understanding” would have superseded the protective order.
“The military is running the show. DOJ is either unwilling or unable to keep its client in check,” human rights litigator David Remes of Appeal for Justice said on December 17. “In this case, the department stopped defending the indefensible. It should show similar good sense in other Guantanamo litigation.”
Contact Mike Scarcella at firstname.lastname@example.org.