Judge Rejects Obama’s Gitmo Rules

-Submitted by David Drumm (Nal), Guest Blogger

Royce C. Lamberth, chief judge of the United States District Court for the District of Columbia, issued what has been termed a “scathing” opinion in which he writes that the Obama administration’s superseding of “the Court’s authority is an illegitimate exercise of Executive power.” Lamberth has gained a reputation for his unique writing flair, and this opinion, which includes a line from Shakespeare, is no exception.

While Lamberth’s decision will surely be appealed, it is refreshing to find a jurist willing to stand up to the onslaught of Executive power grabs.

At issue is the Memorandum of Understanding (MOU) which the government used to set the terms for a Gitmo detainee’s access to counsel. The Government’s repeated claim, that the MOU provides “essentially the same” counsel-access as the court mandated in its Protective Order, led Lamberth to quote Hamlet: “The lady doth protest too much, methinks.”

As in other cases, the Government argued that the Court is interfering with the Executive’s prerogative to control classified information. Lamberth was having none of it, writing that this “objection does not pass the smell test.”

In a tour de force conclusion, Lamberth writes:

The Court has an obligation to assure that those seeking to challenge their Executive detention by petitioning for habeas relief have adequate, effective and meaningful access to the courts. In the case of Guantanamo detainees, access to the courts means nothing without access to counsel.
…
The Court, whose duty it is to secure an individual’s liberty from unauthorized and illegal Executive confinement, cannot now tell a prisoner that he must beg leave of the Executive’s grace before the Court will involve itself. This very notion offends the separation-of-powers principles and our constitutional scheme.

Beg the Executive’s grace? Ouch! That recalls the kind of monarchal rule that our founders fought against.

The separation of powers has taken a lot of hits lately. The Legislature rubber stamps any Executive request for more power in the name of “national security,” and the Courts cave to any Executive claim of classified information. Even the media had rejected its adversarial role and is now a willing participant.

While the fate of Judge Lamberth’s decision upon appeal is unknown, this is a moment to savor.

H/T: Charlie Savage, Jonathan Hafetz, Christian Science Monitor, Lawfare, Marcy Wheeler.