Gavel Grab

New Rules for Gitmo Detainees Are Assailed

A New York Times editorial denounced as unconstitutional a new set of rules imposed by the Obama administration on right to counsel for Guantanamo Bay prisoners who are not challenging their incarceration.

The rules’ constitutionality, of course, will ultimately be decided in court. On Friday, a federal judge in Washington expressed skepticism about the restrictions at a court hearing.

“If it ain’t broke, don’t fix it,” U.S. District Chief Judge Royce Lamberth, said, according to an Associated Press article.  “It doesn’t seem to be broken … That’s why I’m reluctant to change it.”

For Guantanamo detainees who failed in their challenges to their confinement, the new rules require their lawyers to sign a “memorandum of understanding” to keep meeting with the detainee clients. In addition, these meetings are “subject to the authority and discretion” of the commanding officer for Guantanamo Bay.

At the hearing, Judge Lamberth signaled his view that the government’s message is, “We’re in charge. Not the court.”

The Times editorial stated that “Under the new rules, those not challenging their detention would not be guaranteed access to their lawyers; the authorities at Guantánamo would have power to determine access. And lawyers would no longer have guaranteed access to their own files containing classified information, which are kept at a secure facility, unless the authorities approved that, too.” The editorial concluded with sharp criticism:

“The rules are unconstitutional because they deny detainees an essential right and meaningful court review. By giving such discretion to the Guantánamo commander, the Obama administration asserts virtually unbridled executive power. It has taken a regrettable step in undermining the rule of law.”

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