On Continued Counsel Access at Gitmo and the Government's Filing

Wells posted yesterday the government's filing on the question of continued access to counsel for Guantanamo detainees who have lost their habeas cases. I have now read through the motion, and I have to say, I'm a little perplexed. To be fair, the motion doesn't really address the merits of the matter squarely. It is, rather, an argument for referring all of the cases in which post-habeas counsel access has arisen to Chief Judge Royce Lamberth---and there are apparently a bunch of these cases---for coordinated disposition. As such, it does not really lay out systematically a defense of the government's position here. The closest it comes is where the government says:

The Protective Order and Procedures for Counsel Access to Detainees at the United States Naval Base in Guantanamo Bay, issued by Judge Hogan as coordinating judge and eventually adopted by the Court in all Guantanamo Bay habeas cases, see Dkt. No. 283 (the “2008 Protective Order”), is by its terms limited in purpose and scope. It establishes the conditions under which counsel may obtain access to classified national security information “in connection with these matters,” 2008 Protective Order, ¶ I.A.1, and procedures that govern counsel access to detainees “for purposes of litigating these [habeas] cases,” id. ¶ II.A.1. Although several provisions of the 2008 Protective Order—in particular, those prohibiting unauthorized disclosure of classified or protected information by petitioners’ counsel—expressly survive termination of a detainee’s habeas case, see id., ¶ I.G.52, nothing in the 2008 Protective Order provides for continued counsel access to the Guantanamo Bay Naval Station, or to classified information, following termination of the case for which that access was granted. Nevertheless, the Government has determined, as a matter of discretion in appropriate cases, to provide detainees with continued access to their habeas counsel on the terms provided in the attached Memorandum of Understanding Governing Continued Contact Between Counsel/Translator and Detainee Following Termination of the Detainee’s Habeas Case (“Counsel Access MOU,” or “MOU”) (Exh. A, hereto). Pursuant to the terms of the MOU, the Movants can continue to meet with and otherwise communicate with their counsel in essentially the same ways as are provided for by the 2008 Protective Order. The Government has informed Movants’ counsel that, because their habeas cases have been terminated, to continue privileged communications with and access to Movants at Guantanamo Bay, counsel must execute the MOU and comply with the conditions set forth therein, prompting Movants to file the Motions for Counsel Access.

Still, the filing prompts several questions in my mind. First, the filing repeatedly refers to detainee lawyers receiving access to classified material--for example, where it says at the top of page 2 that "In essence, the Movants seek permanent injunctive relief guaranteeing their counsel continued access to a military detention facility on foreign soil, and access to classified information, notwithstanding the termination of their habeas cases." But what classified material are they really receiving? They are not, after all, getting any more discovery. Does this mean that mere presence at Guantanamo implies the receipt of classified material? That would be news to all of the journalists who go there regularly. Does it mean that access to the detainees necessarily implies the receipt of classified material? I find both of those suggestions implausible. Second, the government suggests that "Pursuant to the terms of the MOU, the Movants can continue to meet with and otherwise communicate with their counsel in essentially the same ways as are provided for by the 2008 Protective Order." I haven't done a careful side-by-side between the two documents, but I'm not sure this is right. The MOU incorporates by reference the habeas protective order ("The undersigned hereby reaffirms he/she has read the Habeas Protective Order and reaffirms his/her agreement to continue to abide by its terms") but contains a series of additional restrictions as well ("In addition to the continuing obligations imposed by the Habeas Protective Order . . . the undersigned agrees to the following for purposes of engaging in the continued legal representation of the detainee, post-habeas. . . ."). These additional restrictions include the following catch-all that seems to make access entirely contingent on the discretion of the base commander: "Any disputes regarding the applicability, interpretation, enforcement, compliance with or violations of this MOU shall be resolved in the final and unreviewable discretion of the Commander, Joint Task Force-Guantanamo, in coordination with the Commander, U.S. Southern Command." If I were post-habeas counsel, I'm not sure I would think I was being granted the ability to meet with my client "in essentially the same ways as are provided for by the 2008 Protective Order." Third, this raises the question of why not. That is, if the government is going to argue that access is proceeding on essentially the same basis as before and counsel presumably wants access on the same basis as before, why isn't the right answer simply a new MOU that does, in fact, provide for access on substantially the same terms as before?