The Obama Administration has given up an effort to give the military full control over the activities of lawyers representing detainees at Guantanamo Bay, Cuba — an effort that had been aimed at seizing that power away from federal judges in Washington. In a motion filed on Friday, Justice Department lawyers asked the D.C. Circuit to let them withdraw an appeal they had filed in November. Since the motion was not opposed by detainees’ counsel, it is expected to be granted.

At the center of this dispute was a claim by the Pentagon that it cannot operate the Guantanamo military facility without controlling access by lawyers to the detainees there. However, Chief U.S. District Judge Royce C. Lamberth in Washington, noting that this has been an issue the district judges have controlled since 2008, blocked the military maneuver in September.

Had the government’s appeal gone forward, it had the potential to generate a major conflict between the courts and the executive branch over the conduct of lawyers when they visit the U.S. Navy base in Cuba, where detainees have been held in a military-run prison that opened almost eleven years ago. Under a 2008 Supreme Court decision, in Boumediene v. Bush, the detainees have a constitutional right to go to federal court to challenge their imprisonment. Lawyers’ access to the prisoners has been regulated by a series of court orders. While those orders imposed some restraints on what lawyers could do, the attorneys had found that they had enough access to provide significant legal aid as detainees contested their continued imprisonment.

The Pentagon apparently had grown restive under that regime, and decided — in consultation with Justice Department lawyers — to create an entirely new approach. This new approach would operate after a detainee had lost the first attempt to win release through a habeas plea in a district court in Washington. The switch was defended on the legal theory that, at that point, a Guantanamo prisoner’s right of access to his lawyer had “terminated.” Thus, lawyers were told that, if they wanted any access to those prisoners, they had to sign a new agreement that gave the commander of the base final veto power over what lawyers could do, and imposed added restrictions on counsel.

Some lawyers resisted, refusing to sign and then they complained to Judge Lamberth. The judge conducted a full-scale review of the issue, and concluded that the court orders remain in full effect and that detainees had an ongoing right to legal advice, in the event they wanted to pursue new legal claims. He struck down the Pentagon’s substitute approach. In addition, the judge had indicated he had doubts that the government had a right to appeal his ruling. The voluntary forfeit of the appeal leaves that issue unresolved.

The blog thanks Politico.com and the Lawfare blog for alerting us to the government’s decision not to test the counsel access issue further.

Recommended Citation: Lyle Denniston, Judges retain power on detainees, SCOTUSblog (Dec. 16, 2012, 11:26 PM), https://www.scotusblog.com/2012/12/judges-retain-power-on-detainees/