Washington, DC (Aug. 17, 2012) – In the latest attack on attorney-client relationships at Guantanamo Bay, the U.S. Department of Justice now takes the position that Guantanamo detainees whose habeas corpus cases have been terminated no longer have the right of access to their lawyers and vice versa. Under a new “memorandum of understanding,” attorney-client visits and communications are permitted at the sole discretion of the Commander, Joint Task Force-Guantanamo.
The DOJ argues that a 2008 federal court protective order no longer governs attorney access for detainees whose habeas cases have been terminated. The military would decide whether a lawyer and his client could meet and would control access to all past and future communications (including the attorney’s own work product on previous cases). Under the conditions of the MOU, any disputes would be subject to “the final and unreviewable discretion” of the task force commander in coordination with the Defense Department’s Southern Command.
Chief Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia held a motions hearing on Friday morning and took the matter under advisement. A courtroom observer described the judge as skeptical of the government’s position.
On Monday, Aug. 13, the National Association of Criminal Defense Lawyers (NACDL) filed a friend-of-the-court letter with Judge Lamberth in support of the detainees’ right to access to their lawyers. The letter encourages the court to rule that the 2008 protective order continues to apply to the detainees, and that the government cannot terminate the detainees’ access to their lawyers on their lawyers’ refusal to sign the MOU. In 2003 and 2012, NACDL issued Ethics Advisory Opinions 03-04 and 12-02, respectively, reminding counsel that they many not “contract away” their clients rights, especially the right to effective assistance of counsel and the attorney-client privilege, to the government. Ethics Opinion 12-02, issued in February of this year, reminds military and civilian counsel with Guantanamo clients that attorneys have an ethical and constitutional duty to challenge the substance of JTF administrative orders that interfere with meaningful communications, thereby preventing competent representation.
NACDL President Steven D. Benjamin said, “The American judicial system is the best in the world because our adversarial trial proceedings are designed to determine the truth. Interference with the attorney-client relationship undermines the truth-seeking function of that process, rendering proceedings more about achieving a predetermined result than about determining truth and doing justice.”
“Without proper access to counsel, a person's right to petition and be heard by the courts can be rendered meaningless.” Benjamin said. “As these proceedings continue, the need for uncompromised representation becomes greater, not less.”
A copy of NACDL’s letter brief is available for downloading at https://www.nacdl.org/Document/NACDLAmicusLetterinGTMOHabeasCounselAccessLitigati.
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