By Anthony Dworkin

The New York Times reported on Thursday April 26 that the U.S. Justice Department is trying to curtail the rights of lawyers representing clients at Guantanamo Bay.  The proposed restrictions would affect lawyers representing detainees in cases before the U.S. Court of Appeals for the D.C. Circuit, which is now the only avenue open to Guantanamo prisoners who want to challenge the grounds on which they are being detained.

The requested restrictions are contained in a filing delivered to the Court of Appeals, which will hold a hearing on the issue on May 15.  The government is asking the Court to limit lawyers to three visits with an existing client; to allow only a single visit with a prisoner to persuade him to allow the lawyer to represent him; and to allow military and intelligence personnel not directly involved in a detainee's case to read correspondence sent to the detainee by his lawyer.

In addition, the proposal would give government officials the right to deny lawyers access to secret evidence used by the review tribunals in deciding whether the prisoner was legitimately an "enemy combatant" subject to detention, even though all lawyers representing clients at Guantanamo have been reviewed for security clearance.

According to the Times, the government claims in its filing that visits by lawyers and correspondence between prisoners and their attorneys have caused "intractable problems and threats to security at Guantanamo."

However the move also seems part of a strategy on the government's part to progressively shrink down the legal avenues available to the detainees, and to reinforce the idea that the rights of appeal the prisoners have are a narrow privilege rather than a fundamental entitlement. The Justice Department's request to the Court asserts that "there is no right on the part of counsel to access to detained aliens on a secure military base in a foreign country."

The U.S. Supreme Court had found in its 2004 decision in the Rasul case that detainees had the right to petition U.S. courts for a writ of habeas corpus (in other words, to challenge the circumstances of their detention in the American judicial system) but Congress legislated to eliminate this right in the 2006 Military Commissions Act. The Supreme Court recently said it would not hear a case challenging this part of the Military Commissions Act because the detainees had not exhausted all the remedies that the legislation permitted.  Under the law, detainees have limited rights of appeal against the decisions of the combatant status review tribunals, appeals which are to be heard by the D.C. Court of Appeals.

It is in a case arising from one of these appeals that the U.S. government's proposal to restrict lawyers' access has been filed.

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Related Links:

Court Asked to Limit Lawyers at Guantanamo

By William Glaberson

The New York Times, April 26, 2007

Bush Administration Tries to Squelch Legal Representation at Guantanamo

By Jack Balkin

Balkinization, April 26, 2007

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