David Remes, an attorney for Guantanamo habeas petitioners Uthman and Esmail, has sent in this overview of the ongoing Guantanamo counsel access dispute. In brief: Remes and others recently objected to the Department of Justice's proposed "Memorandum of Understanding," or "MOU" - which would, among other things, regulate future meetings between Remes and his two clients, and restrict the use of any information derived therefrom.  Some years back, Uthman and Esmail had filed petitions for writs of habeas corpus, but both petitions ultimately were rejected by the court of appeals. Now the question is whether, if at all, the rules for attorney access should change, if a habeas case has been rejected on the merits, voluntarily dismissed, or temporarily suspended by the petitioner.  Regarding Uthman and Esmail, Remes argues that older access rules - those fashioned by district judges in 2004 and 2008, and intended to govern all Guantanamo habeas litigation - should continue to apply, even though his clients fully litigated and lost their suits.  The government counters that, given the full adjudication of Esmail's and Uthman's cases (and the voluntary dismissal of, or attempts to temporarily stay,  habeas cases brought by other detainees), new arrangements must be concluded.  Thus the Justice Department's MOU proposal - which, the Department insists, offers attorney-detainee access on essentially the same terms as the prior regime. Whether the MOU actually extends the status quo---or, as Remes argues, imposes new and onerous restrictions on detainees and their lawyers---is one of several questions put to Chief Judge Royce Lamberth of the United States District Court for the District of Columbia.  He will hear Remes' motion (along with three related challenges filed by other habeas petitioners) tomorrow at 10 a.m. Lawfare will be in the house, too. Remes' full statement is below the fold. 

BACKGROUND of Dispute over new

“memorandum of understanding”

David H. Remes

Appeal for Justice

Counsel for Detainees Esmail and Uthman

August 16, 2012

1.      Summary

In November 2004, the federal district court in Washington, D.C., issued a Protective Order (PO) in the Guantánamo habeas corpus cases. The PO created procedures to be followed when detainee lawyers visit their clients or communicate with them by phone or mail. The Court ensures that the government and detainee lawyers follow these procedures. In the spring of 2012, the government declared the PO inoperative for any detainee who does not have an ongoing habeas corpus case, by which the government means a detainee who does not have a habeas corpus case pending in court, or a detainee who lost his initial habeas corpus case and exhausted all appeals in that case. For those detainees, the government purported to replace the PO with a Memorandum of Understanding (MOU). The MOU gives the government absolute and unreviewable control over the lawyers’ access to their clients and how the lawyers may use information they obtain from their clients. The Court has no role. The government will not allow lawyers for these detainees to meet or otherwise communi­cate with their clients unless they sign the MOU. Detainee lawyers have gone to court to strike down the MOU. The hearing on their motion is scheduled for tomorrow at 10:00 a.m. before Chief Judge Royce C. Lamberth. This memorandum describes the developments that led to the current dispute.

2.     History

In June 2004, the Supreme Court held that Guantánamo detainees could bring habeas cor­pus cases seeking their freedom. Rasul v. Bush (2004). Detainees, represented by volunteer attor­neys, began filing habeas corpus cases. The government went to Court, in a case being handled by District Judge Colleen Kollar-Kotelly, arguing that even though the detainees could bring habeas corpus cases, they were not entitled to lawyers. Disagreeing, the judge ruled that the detainees had a right to counsel. Al Odah v. United States (2004). The government also went to District Judge Joyce Hens Green, who had been appointed to coordinate the habeas corpus cases, and requested a protective order. The government told Judge Green that the case would include classified information, for which the Court needed to set rules to guard against unauthorized disclosure. The government also asked that it be allowed to designate some unclassified information as “pro­tected” and not to be publicly disclosed. The government and detainee lawyers negotiated a proposed protective order, which they sub­mitted to Judge Green. In November 2004, she issued a protective order (Green PO) creat­ing a framework for litigating the detainee habeas corpus cases while guarding against unauthorized disclosure of classified information. The Green PO established Counsel Access Proce­dures (CAP) that included rules to be followed by both sides when the lawyers visited Guantánamo or communi­cated with their clients by telephone or mail. The Green PO put the District Court in charge of resolving disputes between the parties, enforcing the rules, ensuring compliance, and sanctioning violations. In addition, only the Court could approve the government's designation of unclassified information as “protected.” If either side wanted to change the rules, it had to get the Court’s approval. After some early wrangling, the government and detainee lawyers learned to live together under the Green PO. The PO came to function so smoothly as to be routine for both sides. Meanwhile, in response to the Supreme Court’s decision in Rasul, Congress enacted legisla­tion stripping the federal courts of jurisdiction to hear the detainees’ habeas corpus cases. The detainees appealed to the Supreme Court. In June 2008, the Supreme Court overturned the legis­lation. The Court ruled that the Suspension Clause of the Constitution gives the detainees a constitutional right to bring habeas corpus cases, and that Congress could not constitutionally strip the courts of jurisdiction to hear their cases. Boumediene v. Bush (2008). Judge Thomas F. Hogan, who took over from Judge Green as the coordinating judge, issued a new protective order in September 2008, which is identical to the Green PO in all ways relevant here. The Hogan PO functioned as smoothly as the Green PO. As efforts to close Guantánamo lagged, operating under the Green/Hogan PO became practi­cally second nature. As a result of Boumediene, the detainees’ individual habeas corpus cases moved forward in the District Court. Each side won some and lost some. Each side appealed some of its losses to the federal appeals court in Washington. Some detainees who lost their cases in the appeals court went no further; others petitioned the Supreme Court for review. The Supreme Court denied all the petitions. Other detainees dismissed their cases, or moved to dismiss their cases, reserving the right to restart the cases. In October 2011, counsel for two detainees moved to dismiss their cases with the right to restart, and to continue to operate under the Green/Hogan PO. In April 2012, the government responded. It agreed to the dismissal of the cases, but it objected to continued application of the PO. The government took the position that because the detainees would no longer have ongoing habeas corpus cases, the Green/Hogan PO no longer applied. The government began refusing to let counsel visit their clients unless they signed a new Memorandum of Understanding. In April 2012, the author of this memorandum, who is counsel for more than a dozen Yemeni detainees, requested approval for a visit to Guantánamo in May. Counsel included on his schedule a meeting with a client, Esmail, who had lost his initial habeas corpus case and exhausted his appeals. The government refused to allow counsel to meet with Esmail unless counsel signed the MOU. Counsel refused. In July 2012, counsel requested approval for a visit to Guantánamo later this month, this time to include meetings with Esmail and a second client, Uthman, who had also lost his initial habeas corpus case and exhausted his appeals. The government will not permit counsel to meet with them unless he signs the MOU. Counsel, whose visit begins this coming Monday, August 20, has refused. Counsel for Esmail and Uthman moved in the District Court for enforcement of the Green/ Hogan PO and invalidation of the MOU. Their motion has been combined with the October 2011 motions and others filed more recently. The matter has been fully briefed. Argument will be heard tomorrow, August 17, at 10 a.m., before Chief Judge Royce C. Lamberth.