The US Department of Justice (DOJ) [official website] on Tuesday filed a brief [text, PDF] with the US District Court for the District of Columbia [official website] asserting that the government should decide when a Guantanamo Bay [JURIST backgrounder] prisoner is granted continued regular access to legal counsel absent a detainee's ongoing legal challenge. The issue for the court will be whether the 2008 US Supreme Court [official website] decision in Boumediene v. Bush [text] grants federal courts the authority to control habeas corpus petitions from foreign combatants in the custody of the US military. Upholding the position [CNN report] of the Department of Justice (DOJ) [official website] would allow military officials to determine on a case-by-case basis when detainees could challenge their detention. It would also provide Guantanamo's Navy base commander with sole veto power over attorney access to prisoner clients and access to classified material. While government lawyers have labeled the dispute as "important" yet "quite narrow," volunteer private attorneys contend that they should be afforded regular access to their imprisoned clients regardless of a habeas petition or other pending charge before the court. Chief Judge Royce Lamberth [official profile], who frequently decides prisoner appeals, will hear the case on August 17.
The DOJ is supporting its argument with Executive Order 13,567 [text], which was issued on March 7, 2011 and involves Periodic Review Boards (PRBs). PRBs are military panels in charge of deciding whether a petitioning prisoner should continue to be detained, as well as whether the prisoner is a national security threat. Specifically, the government contends that the order "does not provide detainees who undergo PRB review with a judicially enforceable right to counsel, or any justification for asking the Court to impose a counsel-access regime on the PRB process other than the one developed, per the Order's direction, by the Secretary of Defense." The case will require further interpretation of the Supreme Court's ruling in Boumediene [JURIST report], where it held that federal courts have jurisdiction to review habeas corpus petitions filed by Guantanamo detainees who have been classified as "enemy combatants."