JURIST - Paper Chase: Federal judge skeptical about new Guantanamo access to counsel restrictions

[JURIST] The US District Court for the District of Columbia [official website] held a hearing Friday regarding a challenge to new restrictions on lawyers representing Guantanamo Bay [JURIST backgrounder] detainees who have had their habeas corpus challenges denied or dismissed. Chief Judge Royce Lamberth expressed skepticism about the new restrictions [AP report], which in some cases require a lawyer to sign a "memorandum of understanding" (MOU) [memorandum, PDF] to continue to be able to meet with a client, making any meetings or communications with a client "subject to the authority and discretion" of the Guantanamo commanding officer. Appearing before the court was the Department of Justice (DOJ) [official website] Civil Division Assistant Director James Gilligan, who told Lamberth that he expects the new system to work substantially like the existing procedures for detainee access to counsel, laid out in the court's protective order of 2008. Gilligan further told Lamberth that the main difference with the new system will be that a lawyer will not have access to classified documents obtained or created as part of a detainee's previous habeas case—such information would be available contingent to a "need-to-know determination" by the Defense Department [official website] upon the lawyer's submission of a statement of justification. The challenge to the new restrictions was brought by six Guantanamo detainees, two of whose habeas petitions were denied and four dismissed with the possibility of reconsideration. To date lawyers for only six of the 170 detainees at Guantanamo have signed the MOU.

Earlier in August the DOJ filed a brief with the court asserting that the government should decide [JURIST report] when a Guantanamo prisoner is granted continued regular access to legal counsel absent a detainee's ongoing habeas or other legal challenge. Also in August a military commissions judge at Guantanamo announced that he will hear oral arguments regarding allegations by the American Civil Liberties Union (ACLU) [advocacy website] that the government censored discussions about torture [JURIST report] during the trial of the 9/11 [JURIST backgrounder] defendants. In the last month there have been several calls by the UN and foreign governments for some long-held Guantanamo detainees to be returned to their home countries, including Egypt, Canada and Kuwait [JURIST reports].