Thursday, April 26, 2007

Bush Administration Wants To Restrict Gitmo Detainees' Access to Lawyers

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William A. Glaberson in the New York Times today:

The Justice Department has asked a federal appeals court to impose tighter restrictions on the hundreds of lawyers who represent detainees at Guantánamo Bay, Cuba, and the request has become a central issue in a new legal battle over the administration’s detention policies.

Saying that visits by civilian lawyers and attorney-client mail have caused “intractable problems and threats to security at Guantánamo,” a Justice Department filing proposes new limits on the lawyers’ contact with their clients and access to evidence in their cases that would replace more expansive rules that have governed them since they began visiting Guantánamo detainees in large numbers in 2004.

The filing says the lawyers have caused unrest among the detainees and have improperly served as a conduit to the news media, assertions that have drawn angry responses from some of the lawyers.

The dispute is the latest and perhaps the most significant clash over the role of lawyers for the detainees. “There is no right on the part of counsel to access to detained aliens on a secure military base in a foreign country,” the Justice Department filing argued.

What a convenient argument, given that Guantanamo's location was chosen in the first place so the "Justice" Department could deny detainees their rights under U.S. law.

The real intention here has nothing to do with security issues or detainee unrest:

Under the proposal, filed this month in the United States Court of Appeals for the District of Columbia Circuit, the government would limit lawyers to three visits with an existing client at Guantánamo; there is now no limit. It would permit only a single visit with a detainee to have him authorize a lawyer to handle his case. And it would permit a team of intelligence officers and military lawyers not involved in a detainee’s case to read mail sent to him by his lawyer.

The proposal would also reverse existing rules to permit government officials, on their own, to deny the lawyers access to secret evidence used by military panels to determine that their clients were enemy combatants.

Many of the lawyers say the restrictions would make it impossible to represent their clients, or even to convince wary detainees — in a single visit — that they were really lawyers, rather than interrogators.

Jonathan Hafetz of the Brennan Center for Justice at New York University, a lawyer who has helped to coordinate strategy for the detainees, said the government was trying to disrupt relationships between the lawyers and their clients and to stop the flow of public information about Guantánamo, which he described as a “legal black hole” before the courts permitted access for the lawyers in 2004.

“These rules,” Mr. Hafetz said, “are an effort to restore Guantánamo to its prior status as a legal black hole.”

Jeralyn thinks the administration's larger goal is to put so many roadblocks in the way of the attorney-client relationship that detainees' lawyers feel themselves ethically obliged to quit:

There has been a big debate going on within the defense lawyer community for years as to whether to participate at all in the Guantanamo cases, given the restrictions. If the Administration is successful in this new quest, I suspect many will refuse to represent them at all. As lawyers, we are obligated to provide "effective assistance of counsel" in all cases we take. That's difficult enough with the current restrictions. These new ones will make it impossible.

The Administration knows this. It's probably banking on it. They are trying to freeze civilian lawyers out of the process entirely.

Jack Balkin argues that by attempting to make Guantanamo a "law-free zone," the Bush administration is undercutting its own argument that detainees have adequate legal protections outside of the civilian American legal system:

These proposed rules are in considerable tension with the Government's claim that Congress has not really suspended the writ of habeas corpus but rather provided an adequate substitute-- namely, the ability to appeal various combatant status review tribunal and military tribunal decisions to the D.C. Circuit. But an adequate substitute for habeas requires adequate legal representation for those detained. If that is undermined, if attorney-client privilege is not respected, and if lawyers are prevented from knowing about secret evidence used to convict their clients, it is hard to argue that these proceedings are an adequate substitute.

We should not forget this central point: The Justice Department is trying to do everything possible to prevent Guantanamo detainees from having any rights at all. It wants to get as close as it can to what it the Bush Administration sought before Rasul and Hamdan-- a law-free zone. But the more the Justice Department tries to eliminate procedural protections and basic elements of fairness for the detainees, the more it undermines its argument that the detainees have a remedy that is just as good as habeas.

Although Jack does not explicitly say this, and I can't be sure he meant to imply it, what I take from the point he makes here is that, by attempting to choke off every legal recourse available to detainees at Gitmo, the government may actually make itself vulnerable at some point to further legal challenge on those very grounds -- because the "adequate legal protections" the feds insist detainees already have don't exist anymore: the feds have taken them all away. Like a political version of the law of diminishing returns.

Cross-posted at Shakesville.

1 comment:

Judy said...

This move by the administration is the height of judicial hypocrisy. This is the same president that claimed he didn't want judges legislating from the bench. Well, the legislature and agency have spoken to the issues of detainees accessing civilian lawyers and he now seeks to alter the arrangement with a court order rather than going to Congress. This is requesting legislation from the bench because in order for the court to grant his request they would have to rewrite the text of those provisions. That is legislating from from the bench, a.k.a. judicial activism.

He is also doing this after signing a law that members of his own party wrote in consultation with him and took heat from both sides for passing. I know because I have been debating attacks of varying types from both sides since the debate began.