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The Case Against Restricting Lawyers at Guantanamo

JURIST Special Guest Columnist Jonathan Hafetz, Counsel with the Brennan Center for Justice at New York University School of Law, says that DOJ-proposed restrictions on lawyers representing Guantanamo detainees would chill communications between lawyers and their clients, suppress information about detentions, and inhibit detainees from meaningfully contesting the allegations against them...

On Tuesday, the U.S. Court of Appeals for the D.C. Circuit will hear arguments in two Guantanamo detainee cases, Bismullah v. Gates and Parhat v. Gates. The cases raise threshold questions about what rights, if any, Guantanamo detainees have to the assistance of counsel in light of recent legislation repealing habeas corpus. The administration has proposed draconian restrictions that would govern all current and future Guantanamo detainee cases, significantly limiting detainees’ access to attorneys and ability to challenge their detention in court.

The Administration’s proposed rules would dramatically alter the system that has governed attorney-client relations at Guantanamo since the first lawyers visited the base more than two-and-one-half years ago. That system now governs more than two hundred pending cases filed by or on behalf of Guantanamo prisoners.

The proposed rules contain a number of troubling provisions. They would, for example, restrict communications between lawyers and detainees to a narrowly defined category of “legal mail” that excludes material plainly relevant to a detainee’s case. The proposed rules would also give a government privilege review team the authority to review and censor the content of detainees’ legal mail and to reveal those contents based upon the government’s own assessment of the needs of national security. In addition, the proposed rules would limit lawyers’ access to classified information based upon what the government unilaterally determines lawyers “need to know,” even though the lawyers have already received security clearances precisely to review such information. Further, the proposed rules would give attorneys only one visit to obtain authorization from detainees to represent them while providing the government with carte blanche to terminate an attorney's access to his or her client at any time and without court review.

Last week, the government retreated from its call to limit attorneys to three visits with their clients after the commander of Guantanamo acknowledged such a limit was unnecessary. But government reiterated its demand to implement the other restrictions.

The Administration’s proposed rules are the latest sally in its longstanding battle against attorneys at Guantanamo. From the time the first prisoners arrived in 2002, the Administration sought to deny detainees any access to counsel. The Administration lost that fight after the Supreme Court ruled in Rasul v. Bush that detainees had a right to seek habeas corpus relief in federal district court. Yet, efforts to undermine counsel access continued, as interrogators posed as attorneys and guards told detainees not to trust their lawyers. In January, the Defense Department’s Assistant Secretary for Detainee Affairs, Cully Simpson, called for a boycott against law firms that represented detainees (Simpson later resigned after the uproar his comments provoked). Now, the Administration is trying to substantially curtail access in connection with the new review mechanism Congress established in the Detainee Treatment Act of 2005 (DTA) as an alternative to habeas corpus.

If adopted, the proposed rules would chill communications between lawyers and their clients, suppress information about detentions at Guantanamo, and inhibit detainees from meaningfully contesting the allegations against them.

Hundreds of individuals have been imprisoned at Guantanamo for more than five years without charge or a meaningful hearing on the lawfulness of their confinement. Many are from very different cultures and do not even speak English. Lawyers serve as more than the detainees’ advocates: they provide their only contact with an unfamiliar legal system and with the outside world from they have been almost entirely cut off. The Administration’s proposal to review and censor privileged communications will erode the trust that is essential to any attorney-client relationship and that is so important to those relationships at Guantanamo which have already had to overcome years of governmental interference and harassment.

The Administration’s proposed rules would also undermine the ability of detainees to seek relief in court by allowing the government to unilaterally deny attorneys access to classified information that is potentially material to a detainee’s case. This proposal has less to do with purported concerns about “national security” than it does with the government’s continued resistance to any meaningful inquiry into the factual basis for the detainees’ confinement. The desire to shield detention decisions and interrogations from independent scrutiny is what drove the Administration’s efforts to prevent lawyers from coming to Guantanamo in the first place, and it is what is largely driving its attempt to limit attorney access now.

Further, the proposed rules would exacerbate the substantial damage Guantanamo has caused to the United States’ reputation and credibility. To date, lawyers have provided the only meaningful check on the detention and interrogation of alleged “enemy combatants.” Indeed, other than representatives of the International Committee for the Red Cross, no other non-government individuals except for attorneys have been able to see or speak to the prisoners at Guantanamo. Blocking lawyers’ from communicating with and representing detainees merely reinforces existing perceptions of Guantanamo as a lawless enclave whose principal purpose is not to detain but to mask illegality and abuse.

In urging the D.C. Circuit to adopt the restrictions, the Administration seeks to blame attorneys for what it describes as “unrest at Guantanamo.” Putting aside the Administration’s continued refusal to recognize that the overriding cause of any such “unrest” is its failure to provide a fair and lawful process to individuals who have been held virtually incommunicado now for more than five years, there is no evidence that lawyers are responsible for any such unrest. Indeed, no infraction of the current rules governing counsel access has been reported to the district court, and the government has not sought sanctions against any attorney.

To be sure, Tuesday’s argument is likely just the first of several coming battles over what rights detainees have under the DTA and what review the D.C. Circuit can exercise over their claims. But how the court treats the issue of counsel access is vital to preserving existing attorney-client communications and relationships. Moreover, it will reveal much about whether the court will accept the government’s misguided arguments that the Judiciary should serve as little more than a rubber-stamp for the Executive’s decision to imprison people at Guantanamo -- potentially for life -- without charge and without a meaningful hearing.


Jonathan Hafetz directs litigation for the Liberty and National Security Project of the Brennan Center for Justice at NYU School of Law.


May 14, 2007


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