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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.
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