Lyle Denniston on Esmail Access to Counsel Issue

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.