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Court Asked to Limit Lawyers at Guantanamo
By William Glaberson
The New York Times
Thursday 26 April 2007
The Justice Department has asked a federal appeals court to impose tighter
restrictions on the hundreds of lawyers who represent detainees at Guantanamo
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 Guantanamo," 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 Guantanamo
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.
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 Guantanamo; 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 Guantanamo, 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
Guantanamo to its prior status as a legal black hole."
The dispute comes in a case in which detainees are challenging decisions by
military panels that they were properly held as enemy combatants. The Justice
Department's proposed rules could apply to similar cases that lawyers
say are likely to eventually involve as many as 300 of the roughly 385 detainees
now held at Guantanamo.
Some of the detainees' lawyers say the Justice Department proposal is
only the latest indication of a long effort to blunt their effectiveness, which
they say was evident in statements of a senior Pentagon official early this
year. The official, Charles D. Stimson, deputy assistant secretary for detainee
affairs, resigned after he was criticized for suggesting that corporations should
consider severing business ties with law firms that represented Guantanamo detainees.
Under the current rules, legal mail is inspected for contraband but is not
read. The lawyers, who have security clearances, are presumed to be entitled
to review classified evidence used against their clients.
There is no limit on the number of times lawyers can visit their clients. Some
say that they have been to Guantanamo 10 or more times and that they have needed
the time to work with clients who are often suspicious and withdrawn.
Justice Department officials would not comment on the proposal, which is scheduled
to be the subject of a court hearing on May 15.
The filing used combative language, saying lawyers had been able to "cause
unrest on the base" and mentioned hunger strikes, protests and disobedience.
An affidavit by a Navy lawyer at Guantanamo, Cmdr. Patrick M. McCarthy, that
accompanied the filing, said lawyers had gathered information from the detainees
for news organizations. Commander McCarthy also said the lawyers had provided
detainees with accounts of events outside Guantanamo, like a speech at an Amnesty
International conference and details of terrorist attacks.
"Such information," his affidavit said, "threatens the security
of the camp, as it could incite violence among the detainees."
Several detainees' lawyers involved in some of the incidents denied that
they had caused security problems. Neil H. Koslowe, a lawyer at Shearman &
Sterling in Washington, called the assertion a "McCarthy-era charge"
that was not supported by the evidence.
The dispute over the lawyers' role is one of the first issues the appeals
court in Washington will have to decide as it opens a new chapter of the legal
battle over Guantanamo. In 2005, Congress designated that court as the forum
for detainees to challenge directly decisions made by the Pentagon's combatant
status review tribunals designating them as enemy combatants.
But many detainees' lawyers have resisted filing petitions to review
those decisions because Congress narrowly defined the arguments the appeals
court could consider. The law said the court could review whether a panel's
decision "was consistent with the standards and procedures" set
forth by the Pentagon.
Instead, many detainees' lawyers pursued habeas corpus petitions, using
the centuries-old legal proceeding to ask a judge for release from imprisonment.
But after a complex trip through the courts, Congress last year passed a provision
intended to strip courts of the authority to hear habeas corpus cases involving
Guantanamo detainees.
A divided panel of the federal appeals court in Washington upheld that provision
in February. And early this month, the United States Supreme Court declined
to review that decision. Two justices, John Paul Stevens and Anthony M. Kennedy,
said that before the Supreme Court could again consider whether Congress was
permitted to strip the courts of the ability to consider the habeas corpus cases,
the detainees had to try to complete the appeals court review of their enemy
combatant decisions.
As a result, much of the focus in the legal battle is now shifting to the appeals
court. Scores of petitions seeking review of the combatant-status rulings are
expected to be filed in the coming weeks, according to the Center for Constitutional
Rights, an advocacy group that has been coordinating the detainees' lawyers.
The May 15 arguments will focus on rules that could apply to all of those cases.
Lawyers say they are pressing ahead with the more limited review process in
the appeals court as part of an effort to set the stage for a return to the
Supreme Court. Some lawyers said that while they may lose, that would allow
them to argue to the Supreme Court that the reviews were so limited that the
detainees needed the more sweeping consideration permitted in habeas corpus
cases.
But government lawyers, too, are developing new strategies in the wake of the
Supreme Court action this month. They say that Congress and the courts have
determined that expansive habeas corpus petitions are not available to the detainees.
As a result, they say, rules like those that allowed unlimited visits with
detainees are no longer necessary as the detainees pursue the more limited appeals
court review.
But, while arguing that detainees have no right to lawyers, the Justice Department
filing said the government was giving the Guantanamo detainees enough access
to lawyers so that "the court's review will be assisted by having
informed counsel."
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