Posted by on July 25, 2012 in Blog

In 2004, the Supreme Court granted the 168 detainees held in Guantanamo Bay the right to challenge their indefinite detention without charges or trial. This decision was bolstered in 2008 by the SCOTUS case of Boumediene vs. Bush, which ruled that detainees were entitled to a “meaningful” opportunity to contest the legality of their detention. Now that many of the detainees have filed and lost their first Habeas Corpus challenges, the Department of Justice appears to be interpreting these Supreme Court decisions as a singular legal opportunity for Gitmo detainees to protest their detention, rather than as an affirmation of America’s adherence to the rule of law. The new rules are so arbitrary; they make the administration look like it is vindictively punishing the detainees for their audacity in challenging their decade-long imprisonment.

Defense attorneys for Guantanamo detainees learned of these new restrictions after a lawyer for a Yemeni national, Yasein Esmail, tried to visit his client in May. Attorney David H. Remes received a reply from a Justice Department official saying that Esmail’s court challenge “has been terminated.” Remes was informed that he and other attorneys would have to sign a new “memorandum of understanding” that transfers the control over attorney visits to the military commander at Guantanamo. As Lyle Dennison from ScotusBlog explains, the document also imposes strict limits on what detainees’ counsel can do with information they receive from their clients:

“Besides putting control over legal contacts entirely under a military commander’s control, the “memorandum of understanding” does not allow attorneys to share with other detainee lawyers what they learn, and does not appear to allow them to use any such information to help prepare their own client for a system of periodic review at Guantanamo of whether continued detention is justified, and may even forbid the use of such information to help prepare a defense to formal terrorism criminal charges against their client.” 

Attorneys are still trying to figure out just how much the new pact limits their legal representation, but it is already clear that the Obama administration believes that the detainees’ window for a “meaningful” challenge to their captivity mandated by the Supreme Court has come and gone. Federal courts have never explicitly laid out what constitutes a “meaningful” opportunity to challenge their detention. Thus, the Obama administration has taken it upon itself to set an arbitrarily and vindictively low standard: a single habeas challenge.

Mr. Remes and other Guantanamo defense attorneys have refused to sign the memorandum of understanding. They have filed a motion arguing that while their client is detained, “he retains the right to pursue any available legal avenues to obtain his release” and without “a full and fair opportunity to meet with counsel in a confidential privileged setting,” his “right to challenge his detention” is meaningless.

This action is part of an unfortunate pattern by the Obama administration of continuing, and in some cases even escalating, the very same “War on Terror” policies he had promised to end. Apologists for the President’s policies have long argued that his hands are tied on the issue of Guantanamo, but a person whose hands were simply tied would welcome the opportunity for Gitmo detainees to meet with legal representation. Such meetings pose little risk and send the right message that the rule of law is being respected. Instead, the Obama administration has rolled back rights granted to the detainees by the Supreme Court. There are the actions of someone who has embraced Guantanamo and the policy of extra-legal detention, not of someone who has done his best to live up to his promises on the issue.  

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