USG Appeals DDC Counsel Access Ruling to DCCA; Obtains Stay

The order entering the stay, by Circuit Judges Rogers, Brown, and Kavanaugh, is here.  It essentially pauses enforcement of last week's order, by Judge Royce Lamberth, that partially invalidated certain GTMO detainee screening and other procedures. The last 24 hours have seen some pretty intensive litigation over the order.  Yesterday, counsel for GTMO detainee Hayal Al-Mitali had asked to speak with her client by telephone today, at 2:00 p.m.  A legal call meant a security search, as regulated by GTMO policies that Judge Lamberth's order had overturned in some respects.  Importantly for Al-Mitali, the order had drawn tighter boundaries for permissible searches, among other things by limiting guards "to grasping the waistband of the detainee's trousers and shaking the pants to dislodge any contraband."  (The prior regime allowed for more intrusive groin searches.) Despite Judge Lamberth's directive, the Department of Defense reportedly was "not in a position to apply the Court's order with respect to [the] scheduled call," according to an e-mail sent by a Department of Justice lawyer to Al-Mitali's lawyer---who unsurprisingly appended the exchange to an emergency motion, filed yesterday,  to enforce Judge Lamberth's ruling regarding searches and other policies.  Given the DOD's apparent non-compliance, the DOJ attorney explained that the detainee could proceed with his planned call according to earlier search rules---those nullified in many respects by Judge Lamberth---or postpone.  The government's attorney added that the DOJ planned to seek an immediate stay of the District Court's order, too. That last part came as no shock at all, given the government's displeasure with a judicial ruling affecting military detention policies, and its disagreement with Judge Lamberth on the law.  Accordingly, the DOJ yesterday also filed a motion for a stay "pending possible appeal" and a request for an administrative stay.  In separate document, also filed yesterday, the DOJ responds to Al-Mithali's motion and advances supplemental arguments in favor of a stay "pending possible appeal." So far as I can tell, the District Court didn't act on those requests by the government, and still hasn't.  But the issue was quickly mooted, when the United States noted an appeal to the D.C. Circuit, and sought---and obtained---a stay from that court. Counsel access issues are thus now front and center at the court of appeals.  Stay tuned.