Bush Seeks to Reduce Gitmo Detainees' Access to Counsel

Not content to seek to deprive the Guantanamo detainees of habeas corpus and access to the federal courts to challenge the conditions of their confinement, the Bush Administration is taking it one step further. Now, it wants to limit the detainees' access to their lawyers.

Saying that visits by civilian lawyers and attorney-client mail have caused “intractable problems and threats to security at Guantánamo,” 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 Guantánamo detainees in large numbers in 2004.

What limits does the Administration want to impose? Read on...

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 Guantánamo; 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.

There has been a big debate going on within the defense lawyer community for years as to whether to participate at all in the Guantanamo cases, given the restrictions. If the Administration is successful in this new quest, I suspect many will refuse to represent them at all. As lawyers, we are obligated to provide "effective assistance of counsel" in all cases we take. That's difficult enough with the current restrictions. These new ones will make it impossible.

The Administration knows this. It's probably banking on it. They are trying to freeze civilian lawyers out of the process entirely.

If they can do it with Guantanamo detainees, which class of persons accused will be next? U.S. citizens accused of terrorism in federal courts? Undocumented residents seeking representation in deportation proceedings before immigration courts? Accused child molesters, mobsters and drug traffickers?

The attorney client privilege has been around for hundreds of years. Under Ashcroft, regulations were implemented to monitor jailhouse communications between lawyers and their clients.

Now they want to take it even further. If the Court signs off on this, will Congress then pass the McCarthyism, Korematsu and Star Chamber Renewal Act, to allow the attorney-client relationship to exist only between those citizens it deems worthy of having counsel?

Every time the rights of the detainees are diminished, the rights of all Americans are placed at risk. Habeas for one, habeas for all. Counsel for one, counsel for all. Don't sit by and do nothing. You'll have only yourself to blame. Remember Newt Gingrich's Contract on America.

Also, remember, once you give the Government new powers, even if only for a claimed emergency, it rarely gives them back.

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    Outrageous (5.00 / 1) (#1)
    by HK on Thu Apr 26, 2007 at 04:29:04 AM EST
    These proposals are unreasonable in the extreme.  Remind me again what percentage of those who have been incarcerated in Guantanamo have been proven to be terrorists?  Clearly the Bush administration is not satisfied with the human rights abuse that is already being carried out at this location in the name of justice...as if they even vaguely understand the concept of the word.

    It is harrowing to even think about how those inmates must feel, locked up, largely inaccessible by friends, family and their own legal representation, ignored by international governments who lack the courage to stand up against The Decider...

    I only hope that those who have sufficient power that their opinions matter have the balls to speak up against these latest plans.

    Disgusting (5.00 / 1) (#2)
    by Carolyn in Baltimore on Thu Apr 26, 2007 at 07:10:19 AM EST
    Can defense attys become a voice for these prisoners? I mean, as they are denied access and evidence, and as they note evidence of torture, can they scream to the high heavens?
    I know there is Atty-client ethics and rules, but isn't it in the interest of all the prisoners to have their plights publicized?
    What can be more in their interest than publicizing the blatant disregard for human and civil rights?

    As long as we are having a Rev. Neimoller moment (5.00 / 1) (#3)
    by Molly Bloom on Thu Apr 26, 2007 at 08:00:04 AM EST
    Ten Steps To Close Down an Open Society by Naomi Wolf is recommended

    They were not figuring these things out as they went along. If you look at history, you can see that there is essentially a blueprint for turning an open society into a dictatorship. That blueprint has been used again and again in more and less bloody, more and less terrifying ways. But it is always effective. It is very difficult and arduous to create and sustain a democracy - but history shows that closing one down is much simpler. You simply have to be willing to take the 10 steps.

    For those who care to look the Wolf runs through those steps and the administration of GWB.

    [As a semi obscure footnote:  Fred Korematsu was a great American who spoke out before he died (pdf)

    Right to Counsel (5.00 / 1) (#4)
    by TKindlon on Thu Apr 26, 2007 at 08:02:11 AM EST
    Carolyn in Baltimore---A dedicated group of indefatigable volunteer defense lawyers have been consistently and routinely disseminating information concerning their struggles in the GTMO cases. The story hasn't generated anywhere near enough interest, but, as we all know, it's hard to find time to report on the gross negligence and intentional misconduct of the Bush Administration when there are all of those important Britney Spears and Paris Hilton stories out there demanding the media's rapt attention. The lawyers, who range from solo practitioners to elite firm superstars and brilliant law professors, and who are serving in the best traditions of the legal profession, have described their problems with DOJ, the military, the wildly bogus military commissions process that was tricked up the the rubber stamp Republican congress on its way down the drain, (and the military commissions don't even rise to the level of a kangaroo small-claims court), awkward, expensive travel arrangements, restrictive and ever-changing rules concerning client consultations, security clearance requirements, bizarre mind-games contrived to cause clients to suspect their lawyers are really government interrogators masquerading as lawyers, and the myriad of difficult circumstances created by our government, through several of its components, in a cynical, sustained effort to effectively deny the prisoners the right to counsel.  The government's conduct has been--no surprises here--appalling. A number of military JAG lawyers have committed career suicide (e.g., Marine Major Michael Mori; Navy Commander Charles Swift)by taking their lawyer's obligation to zealously represent their clients seriously. Once Bush runs out the clock, or has been impeached or whatever, and after we restore a legitimate democracy in America, we'll spend a generation analyzing all of the things that went wrong with American justice in Guantanamo. While contemplating this mess, for the sake of irony, we should pause to reflect that Scooter Libby and every other crooked republican political operative and/or office holder, always seem to be surrounded by platoons of $1,000/hour lawyers.  

    Can I rephrase? (5.00 / 1) (#5)
    by Carolyn in Baltimore on Thu Apr 26, 2007 at 08:31:05 AM EST
    My question was general, and I know people have been trying to publicize the injustices of the legal problems w/ Gitmo.
    However I know an atty on a team for a Gitmo prisoner - and they can't talk about the case. Some of this comes from the atty-client ethics and some from the military/security folks. I guess if you are branded a terrorist you can't even tell others who your client is - meaning you can't publicize the problems because you'll be 'helping' the terrorists if you discuss the case in public.
    It seems to be another of the many Catch-22s the attys for Gitmo prisoners have to deal with.

    A thought (none / 0) (#8)
    by jimakaPPJ on Fri Apr 27, 2007 at 07:19:50 AM EST
    The story hasn't generated anywhere near enough interest

    And it probably won't, given that the public doesn't have much sympathy for the prisoners.


    of course not (none / 0) (#9)
    by Jen M on Fri Apr 27, 2007 at 07:47:06 AM EST
    that's how it starts.

    Haven't you been listening to the NRA?

    Camel, nose, tent and all that?


    Jen M (none / 0) (#12)
    by jimakaPPJ on Fri Apr 27, 2007 at 09:14:16 AM EST
    Can you tell me why the public should have sympathy?

    Can you tell me a person who has attacked our military in a battle in another country should be accorded the same rights as a US citizen, or someone in the US legally, and given a full up US CJ system trial??


    I'm not saying the public should have sympathy (none / 0) (#15)
    by Jen M on Fri Apr 27, 2007 at 03:08:23 PM EST
    for them. I'm saying the public should be wary of what power it blindly hands out.

    I'm saying those in power are counting on the lack of sympathy. Then they slowly widen the definition of "terrorists" and therefore "enemy combatants"

    That's how it works. You know it. Why are you pretending otherwise?


    Jen M (none / 0) (#16)
    by jimakaPPJ on Fri Apr 27, 2007 at 08:44:19 PM EST
    Because I haven't seen the widening you refer to.

    Do you have an example?


    there is this whole continent (none / 0) (#18)
    by Jen M on Sat Apr 28, 2007 at 05:41:03 AM EST
    south of us that sets great examples

    But hey just look back here:



    geez, wouldn't it be easier (5.00 / 1) (#6)
    by cpinva on Thu Apr 26, 2007 at 01:12:52 PM EST
    to just go ahead and put them all in solitary confinement, in perpetuity? forget the nonsense about having to actually be guilty of a criminal act, we don't need no stinkin' criminal act!

    i mean really, why waste time with this slow roll down the hill, just do it and be done with it. then challenge anyone to do anything about it. if they do, they're a security risk, and should be confined.

    it's perfect.

    gitmo lawyers and Geneva convention (none / 0) (#7)
    by diogenes on Thu Apr 26, 2007 at 10:11:28 PM EST
    Of course, if these were really enemy combatants covered by the geneva convention, they would not have the right to lawyers nor trials and could be held indefinitely, though the red cross could visit them at GITMO, I suppose during their indefinite stays.

    definitions (none / 0) (#10)
    by Jen M on Fri Apr 27, 2007 at 07:50:53 AM EST

    Who gets defined as a terrorist next? ooh! I know! Drug dealers! Drug dealers are enemy combatants. No more lawyers, no more due process.

    Hurray for boiling frogs!


    Jen M (none / 0) (#11)
    by jimakaPPJ on Fri Apr 27, 2007 at 09:10:47 AM EST
    Can you provide any evidence of your claim?

    I mean I hear it, or close to it, all of the time, yet I don't see it happening to frogs, or US citizens.

    BTW - Do you remember the story about the boy who cried wolf?


    Sure do (none / 0) (#13)
    by Repack Rider on Fri Apr 27, 2007 at 09:48:54 AM EST
    Do you remember the story about the boy who cried wolf?

    You mean like GWB?


    camel (none / 0) (#14)
    by Jen M on Fri Apr 27, 2007 at 02:35:08 PM EST

    Jen M (none / 0) (#17)
    by jimakaPPJ on Fri Apr 27, 2007 at 08:45:32 PM EST




    US citizens ... (none / 0) (#19)
    by Sailor on Sat Apr 28, 2007 at 05:22:12 PM EST
    ... locked up in military brigs w/o council for years and tortured.

    Sailor (none / 0) (#20)
    by jimakaPPJ on Sun Apr 29, 2007 at 06:26:10 PM EST
    I note Padilla.


    I note. No proof of torture.