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Government Appeals Guantanamo Lawyer Access Ruling

By Robyn Hagan Cain on November 09, 2012 | Last updated on March 21, 2019

Guantanamo Bay detainees' lawyers could once again be fighting for their clients' constitutional rights before the D.C. Circuit Court of Appeals.

You may recall the Boumedienne v. Bush — the landmark Supreme Court decision holding that Guantanamo detainees have a constitutional right to habeas corpus — matriculated from the D.C. Circuit. The latest issue to evolve from that decision is whether a detainee has a continued right to access counsel after a habeas petition is denied.

Earlier this year, the military decided that it could determine the lawyer visitation and communication rules for Guantanamo detainees whose initial habeas petitions had been rejected, Politico reports. Justice Department attorneys backed the Pentagon.

But lawyers for the inmates noted that prisoners have the right to make additional bids for freedom. The terror suspects' attorneys also said there was no reason for a departure from the court-ordered rules.

U.S. District Court Judge Royce Lamberth agreed, calling the changes the counsel access "an illegitimate exercise of Executive power." Judge Lamberth unequivocally ruled that the government was infringing on the detainees right to counsel, which was clearly-established under Boumedienne. He wrote:

In the case of Guantanamo detainees, access to the courts means nothing without access to counsel. And it is undisputed that petitioners here have a continuing right to seek habeas relief. It follows that petitioners have an ongoing right to access the courts and, necessarily, to consult with counsel.

Last week, the Obama administration filed a formal notice of intent to appeal, seeking to overturn Judge Lamberth's ruling, Politico reports.

An administration official told Politico that the filing was simply a means of preserving the government's options in the case, and that no final decision had been made.

In other words, we shouldn't read too much into it.

On the other hand, the administration filed the appeal on a Friday evening. On the final weekend before Election Day. When the news was largely buried.

SCOTUSblog notes that the Solicitor General's approval is necessary for the appeal to move forward. For now, all eyes are on Donald Verrilli to see if the Obama administration will start its second term by trying to limit detainees' rights.

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