Habeas, Res Judicata, and Why the New Guantanamo MOU Is a Big Deal

Ben already posted last week about the new battle a-brewing over the "Memorandum of Understanding" (MOU) that the Department of Justice is apparently requiring counsel in the Guantanamo habeas cases to sign in order to continue meeting with their clients in cases in which the government has prevailed on the merits and no further appeal is pending. Ben's post reprints David Remes' cogent summary of both what the MOU does and why counsel for the detainees have thus far been unwilling to sign it, but the short of it is that the MOU appears to constitute a waiver of the rights to counsel and to access to counsel that the D.C. district court has recognized in the Guantanamo habeas litigation (see especially paragraph 6). Ben's response suggests that "there may be a jurisdictional problem with letting attorney access be governed by a protective order in a case that is no longer in any meaningful sense pending." I respectfully disagree. Boumediene establishes that the Suspension Clause "has full effect" at Guantanamo. At least in the executive detention context, it has long been recognized that habeas at common law recognizes no bar to filing second or successive petitions, including res judicata. [Those interested in a more sustained discourse on this body of law should check out Part I of Justice Brennan's opinion for the Court in Sanders v. United States.] To be sure, the Supreme Court has since approved at least some restrictions on the ability of individuals to file second or successive post-conviction habeas petitions, upholding against constitutional challenge the so-called "gatekeeper" provisions of the Antiterrorism and Effective Death Penalty Act of 1996 in Felker v. Turpin. But there is a world of difference between restricting second or successive petitions in the post-conviction context (where folks still disagree over whether the Suspension Clause protects even the right to file a first petition); and doing so in the context of pure executive detention, where the common law clearly recognizes the right to so proceed (as Justice Brennan explained in Sanders). If the Suspension Clause enshrines the common law writ, and if that writ protects a right of those in extra-criminal detention to file successive petitions, then it seems to me there is no jurisdictional defect along the line Ben postulates, since part of the right to counsel is the right to decide whether to file a second or successive petition... Leaving aside the question of why the government would seek to open this particular can of worms, it strikes me that it can largely be fixed if government simply disclaimed any intent to interfere with a detainee's right to counsel (and to access thereto), despite the MOU's suggestion that attorney-client contacts are solely within the discretion of the Commander of JTF-Guantanamo. But given the very real possibility that there may be a second wave of Guantanamo habeas litigation in the not-too-distant future (especially if the situation on the ground in Afghanistan materially changes), I just don't see why the government would pick this particular fight...