Analysis

For years, the federal government — in two administrations — has taken the view that the detainees being held by the U.S. military at Guantanamo Bay have very few legal rights, if any. Even after the detainees gained a constitutional right, from the Supreme Court, to challenge their captivity, the government continued to treat that as a narrow legal opportunity. Now, the Obama Administration is taking the position that the opportunity has been used up by many at Guantanamo, and so they cannot even meet with their lawyers unless a military commander consents.

Detainees’ lawyers launched this week a court challenge to the government’s new stance. But, given that the Supreme Court has never spelled out what it meant in its last major detention ruling — in Boumediene v. Bush in June 2008 — and, in fact, has refused even to hear any new cases seeking clarification of the rights created by that decision, this new challenge might be a long shot, at best. That, however, has never been a deterrent to the scores of volunteer attorneys who are acting as lawyers for the 168 foreign nationals still held in the U.S. Navy’s prison in Cuba. That number includes many who ultimately will be charged with terrorism crimes, but also many who won’t be, but yet will be kept, perhaps indefinitely.

The latest development on the legal rights of those at Guantanamo started to unfold after a lawyer for a Yemeni national, Yasein Khasem Mohammad Esmail, made plans to visit him at Guantanamo in May. About a week later, his attorney, David H. Remes, got an e-mail from a Justice Department lawyer saying that Esmail’s court challenge “has been terminated.” That, Remes was told, meant that the attorney would have to sign a new “memorandum of understanding” that transfers to the military commander at Guantanamo the control over attorney visits with clients in that category. That document also imposed a number of other strict limits on what detainees’ counsel can do with information they get from those they represent.

The Justice Department e-mail, and the new document controlling the rights of those whose habeas challenges have been “terminated,” do not spell out what that means. (Those documents can be read here.) Presumably, it means that the detainee has had a chance to pursue a habeas petition seeking release from the U.S. District Court in Washington, but has lost. In Esmail’s case, his habeas plea was rejected in the District Court and in the D.C. Circuit Court. The Circuit Court ruled against him in April of last year, and his attorneys did not seek to take the case on to the Supreme Court. The time to do so has long since run out.

When told that he could not meet with Esmail unless he signed the new pact, attorney Remes refused to sign. In his legal motion filed in District Court on Monday, Remes told a magistrate judge that he refused to sign because visits by attorneys with their detainee clients are governed by orders issued nearly four years ago by District Court judges as part of their implementation of the Supreme Court’s Boumediene decision on habeas rights. That earlier regime, the motion argued, provided for court supervision of attorney-detainee contacts, but the new regime gives the military commander who heads the Guantanamo facility “absolute, unreviewable control over such access.” The motion asserted that the new regime is “onerous and restrictive.”

Besides putting control over legal contacts entirely under a military commander’s control, the “memorandum of understanding” does not allow attorneys to share with other detainee lawyers what they learn, and does not appear to allow them to use any such information to help prepare their own client for a system of periodic review at Guantanamo of whether continued detention is justified, and may even forbid the use of such information to help prepare a defense to formal terrorism criminal charges against their client. Attorneys are still exploring just how far the new pact limits their legal representation, but the new court challenge makes it clear that they are already convinced that it is less than what the Supreme Court meant in 2008 when it said that the detainees were entitled to a “meaningful” opportunity to go to court to challenge their captivity.

Ordinarily, when a person convicted of a crime has a right to pursue challenges after that conviction becomes final, and in some circumstances can make more than one such challenge. Thus, while one such challenge might be “terminated” when that individual loses, circumstances may change, or new evidence might turn up, and the defense lawyer can make a new attempt at a challenge. Legal representation, in other words, does not necessarily stop with each setback in court.

The Guantanamo detainees, in most cases, have not been convicted of any crime, at least until they go before a military commission with the authority to try terrorism charges. But the federal government’s lawyers have contended that the only legal right they have, at least before they are charged, is one attempt at habeas, followed by one appeal if they lose in District Court. The habeas right created by Boumediene may be constitutional in nature, those federal lawyers have argued, but it has no other constitutional foundation — such as the Due Process Clause. The D.C. Circuit Court, in front, has ruled repeatedly that the Due Process Clause simply does not apply at Guantanamo, and the Supreme Court has refused to hear challenges to that view — indeed, the Justices turned down just such a challenge on June 11 as part of denial of review of all new Guantanamo petitions filed last Term. (The denial on the due process issue came in the case of Al-Madhwani v. Obama, docket 11-7020.)

In attorney Remes’s challenge to the new “memorandum of understanding,” an initial ruling on it would come from Magistrate Judge Alan Kay in Washington. He has been designated as the judge to initially hear disputes over links or visits between lawyers and Guantanamo detainees. Any ruling he issues presumably could then be reviewed by a regular District Court judge and, presumably, by the D.C. Circuit. The Supreme Court might not be inclined to review a dispute when it is confined to an administrative order of a District Court, but might be at least more likely to do so if detainees’ lawyers attempt to turn it into a constitutional issue by claiming that the Boumediene decision meant that the constitutional right of habeas meant more than one shot in federal court, and then termination.

Remes’s motion asked the magistrate judge to rule that the earlier orders of the District Court are still in force, and that the government has violated those orders by imposing the new requirement of signing the new restrictions memorandum, or else lose the chance to visit with their clients. The new memorandum, in fact, threatens not only to cut off visits with clients for an attorney failing to sign the new pact, but also threatens to deny them any access at all to the Guantanamo facility.

The new motion also sought to dispute that Esmail’s case actually has been “terminated.” “As long as he is detained,” the document argued, “he retains the right to pursue any available legal avenues to obtain his release.” That includes the right to file a new or amended habeas challenge, or to file a formal motion to have his case reopened in District Court.

The Justice Department will have a chance to respond to the motion before the magistrate judge rules.

Recommended Citation: Lyle Denniston, Are “Boumediene rights” expiring?, SCOTUSblog (Jul. 13, 2012, 6:25 PM), https://www.scotusblog.com/2012/07/are-boumediene-rights-expiring/