Judge Smacks Down Obama on Gitmo Access

Judge Smacks Down Obama on Gitmo Access September 11, 2012

A Reagan-appointed judge who has often issued strongly-worded opinions has issued a ruling that the New York Times describes as “scathing,” hammering the Obama DOJ for seeking to deny attorneys representing Gitmo detainees access to their clients.

The case involves several detainees who had previously filed habeas corpus petitions with a federal court but dismissed them voluntarily — on the condition that they be allowed to refile them later and maintained communication with their attorneys. But the government then refused to allow such access unless the attorneys signed a Memorandum of Understanding (MOU) that limited their access not only to their clients but to evidence that they previously had access to when there were active cases pending in the courts — even to their own work product developed during the previous case. The judge’s reaction was rather unequivocal:

In a scathing, 32-page opinion, Royce C. Lamberth, the chief judge of the United States District Court for the District of Columbia, ruled in the detainees’ favor, characterizing the government’s arguments using terms like “untenable,” “quite preposterous,” “even less persuasive,” and “does not pass the smell test.”

The judge wrote: “The court, whose duty it is to secure an individual’s liberty from unauthorized and illegal executive confinement, cannot now tell a prisoner that he must beg leave of the executive’s grace before the court will involve itself. This very notion offends the separation-of-powers principles and our constitutional scheme.”

Though these cases all stem from Bush-era detentions, the new access rules came from the Obama administration and were only put in place earlier this year. One of the defense attorneys has it about right:

David Remes, one of the lawyers for detainees who asked the judge to reject the government’s move, hailed the ruling. He called the proposed new rules “egregious, because it would have removed the courts from the equation and left the Gitmo commander a law unto himself.”

“The government has never reconciled itself to the fact that the detainees have a right to counsel and has put one obstacle after another in our path,” he said. “I have no illusion that this ends the struggle. The government will continue to find ways to obstruct us. We’ll just have to fight them one by one as they come. But it’s terrific that we won this round.”

He’s right. Both the Bush and Obama administrations have been absolutely consistent in doing everything they can to prevent even a chance of justice for detainees. You can read the full ruling here.

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