Guantanamo Detainee Moves Wants His Habeas Case Dismissed But to Keep His Lawyers

This is an interesting issue I have not yet seen before in a Guantanamo habeas case. Some time back, a detainee named Abdu Al-Qader Hussain Al-Mudafari filed a motion to dismiss his habeas petition without prejudice but nonetheless retain access to his lawyers. He asked for:

continued access to and communications between Petitioner and his counsel pursuant to the Procedures for Counsel Access to Detainees at the U.S. Naval Base in Guantanamo Bay, Cuba, contained in the Protective Order of September 11, 2008 (Dkt Nos. 86, 124) (the “Protective Order”). In the alternative, if the Court does not grant Petitioner’s request for voluntary dismissal without prejudice and continued access to his counsel, Petitioner moves this Court for a stay of his habeas corpus proceeding so as to allow continued communication and meetings between Petitioner and his counsel. For the reasons stated below, Petitioner’s requested relief would not substantially prejudice or burden the Government, and comports with the interests of justice.

The government has has now responded. Unsurprisingly, it's not enamored of this idea:

For all intents and purposes, Petitioner is requesting a permanent injunction that would require the Executive Branch, in the absence of an active habeas case, to grant his counsel ongoing rights of access to a military detention facility on foreign soil, and of access to classified national security information. The Government consents to Petitioner’s request to dismiss his case without prejudice, but objects to Petitioner’s request for court-ordered counsel access. As a matter of its discretion, the Government is willing in appropriate cases (including this one) to provide detainees, following dismissal of their habeas cases, with continued counsel access to the extent provided, and on the terms set forth, in the attached memorandum of understanding (MOU). Pursuant to the terms of the MOU, Petitioner can continue to meet with and otherwise communicate with his counsel in essentially the same ways as are provided for by the Protective Order. Following dismissal of his case, any need Petitioner may have for continued counsel access for purposes of seeking judicial review of the lawfulness of his detention may be fulfilled pursuant to the MOU. Under these circumstances, court-ordered counsel access would represent an unjustified encroachment upon the Constitutional prerogative of the Executive Branch to determine who may have access to a military base, and who may have access to classified information.