Skip to main content

Chief U.S. District Judge Royce Lamberth has long had a reputation for being a fiery jurist, but in yesterday's opinion on Guantanamo Bay detainees' access to counsel, Lamberth conveyed his understandable outrage with the government. Mincing no words, Lamberth accused the Executive Branch of infringing on the Judiciary's duty to protect individual rights, particularly the right to Habeas Corpus.

A little history here. It took Gitmo detainee attorneys more than 2 years--and a trip to the Supreme Court--to finally gain the right to visit and talk to their clients. Even then, the attorneys were forced to operate under sever restrictions designed to inhibit communication.

The Gitmo cases at hand involved the latest government attempt to obstruct detainees' access to counsel despite the fact that, as Lamberth put it,

In a litany of rulings, this Court and the Supreme Court have affirmed that the Federal courts are open to Guantanamo detainees who wish to prove their indefinite detentions are illegal.
The government sought to replace a judicial Protective Order regulating the process for detainees' access to counsel, which the courts oversaw, with a "Memorandum of Understanding" that access would be overseen entirely by the Executive Branch, which would inhibit detainees' ability to meet with counsel and petition the courts. Lamberth was having none of it.

Judge Lamberth's well-reasoned opinion speaks for itself. Key quotes:

The Government's reasoning is substantially flawed and confuses the roles of the jailer and the judiciary in our constitutional separation of powers scheme.
If the separation-of-powers means anything, it is that this country is not one ruled by Executive fiat. Such blanket, unreviewable power over counsel-access by the Executive does not comport with our constitutional system of government.
When asked why the Protective Order--which had been working for four years and protected both detainees' rights and classified information--was inadequate:
. . . the government had no answer . . . The best that they could muster was to argue that the Protective Order simply left a vacuum of procedural rules . . . Of course, when it comes to power, the Government, as much as nature, abhors a vacuum.
Lamberth didn't buy the government's less-than-credible excuse for the Memorandum of Understanding, which was--as it so often is in the national security arena when the government wants to restrict individual rights--protecting classified information:
Far from merely putting in place rules governing how it will run its own facilities and protect classified information, . . . the Government wants to place itself as the sole arbiter of when a habeas petitioner is “seeking” to challenge their own detention and when a habeas case is “impending,” and thus when they can have access to counsel.
Lamberth was similarly skeptical when the government claimed the Protective Order was some kind of "permanent injunction":
Had, for example, the Obama administration closed the Guantanamo Bay detention facility as it promised, the Court's Protective Order would no longer have any effect, except as to those provisions regulating disclosure of classified and protected information.
But these weren't even the government's most ridiculous argument, for which Lamberth saved even harsher language:
The Government has taken the quite preposterous position that petitioners are not being denied access to the courts because petitioners can proceed pro se or “send letters to the Court requesting initiation of habeas case, or submit the form that the Government makes available to Guantanamo detainees for that very purpose.” . . . The Court cannot take this contention seriously. It is uncontested that most if not all of the detainees are illiterate in English, if not in their native tongue.
(emphasis added)

Lamberth deserves credit, not only for asserting the judiciary's constitutionally-mandated role in protecting individual rights, but for asserting the judiciary's role in a way that conveys the undercurrent to all Gitmo cases--that indefinite detention is antithetical to a free democracy.

It is a sad reality that in the ten years since the first detainees were brought to Guantanamo Bay not a single one has been fully tried or convicted of any crime.
Yesterday's entire opinion should not go overlooked. It is must-read therapy for beleaguered human rights attorneys.
EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site