Congress, Constitutional Law, Courts, Justice

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.

31 thoughts on “Judge Rejects Obama’s Gitmo Rules”

  1. Jill, If it were anyone else but a Federal judge I would agree w/ you. Ask any attorney about just how secure they are. Now, maybe it took courage vis a vis not getting invited to cocktail parties, but Federal judges are the real life Untouchables.

  3. Great decision! About time. Now if only the national security claims that keep Americans in the dark about the charges against them could come before this judge. And the warrant less wiretapping of everyone’s internet and phone. And the kill list. And….

  4. Jill,

    I agree that it took courage for Judge Lamberth to rule as he did.

    Elizabeth Warren was not appointed to head the CFPB–probably because she had the courage to put Tim Geithner on the hot seat…in public.

    Elizabeth Warren Makes Timmy Geithner Squirm Over AIG and Goldman Sachs Bailouts

  5. nick,

    It took a great deal of courage. If you understand what is done to people who oppose this administration, you wouldn’t say that. Neil Barofsky writes about his experience trying to expose the amazing amount of financial fraud both tolerated and encouraged by this administration. He was told it would be better for his career and his family if he shut up.

    Glenn Greenwald has pointed out that people who agree with the govt. rarely understand what it takes to disagree. Nothing happens to those who agree because they are useful to the govt. and don’t need to have anything “happen” to them. They are unlikely to get stopped at the border, have their phones and computers confiscated. They are unlikely to get pepper sprayed or arrested because there is nothing that upsets them enough to take action about. Safe in their conformity, nothing unusual happens to them. But step out into active criticism, be a judge who stands for the rule of law under any president who does not– I truly think you need to rethink your position that this takes no courage, in light of what has actually happened to those who dissent.

  6. ElaineM, Thanks much for the link. I have said numerous times, Brian Lamb is the best interviewer ever on television, IMO.

    Blouise, I hope you enjoy it. I’ll refund your money if you don’t!

  7. On one hand the Obama adminstration wants to bring to trial foreign terrorists in a Federal Court, and with the other hand it drones American citizens without their day in court. Makes you wonder who’s next on Obama’s hit list.

  10. Federal Judges are lifetime appointments. It took zero courage to say his piece. That was the intent of the lifetime appointment for Federal judges.

  11. This is great! Anytime someone will speak the truth and stand up for the rights of others, that is a good.

    In this society, to speak the truth is considered taboo, an offense. Mobs to the right and to the left will gather forces to condemn it. To take on the powers of the govt. can get you tortured, threatened, imprisoned or killed.

    It took courage and honor for Judge Lamberth to stand for the rule of law. He spoke for the powerless in the face of the powerful. I do not underestimate what that took and what he did. Thank you Judge Lamberth.

  12. Pat, While I agree substantially w/ your point, how about a quote from someone rather than Ford.

  13. This country which I served and would defend with my life has been headed for Socialism for a long time. Only the people can save her now. Our “WMC” (weapon of mass construction) is the election. Get out and vote before it is too late, before elections too become a right we used to have.

    It was Gerald R. Ford, who said, “A government big enough to give you everything you want is a government big enough to take from you everything you have,” in an address to a joint session of Congress on August 12, 1974.[1]

  14. Judge Lamberth decided this case properly and maybe, just maybe the facade of justice that is called Gitmo can now begin to become the same justice that can be achieved in any other Federal court.

  15. About 5 years ago I read a book by Michael Dobbs titled, Saboteurs. It’s about the capture and execution of Nazi saboteurs during WW2. I was hearing the back and forth about Gitmo and silly me, I wanted to get a historical perspective instead of just listening to talking points and platitudes. It’s a good read and might help give a historical perspective to those so inclined.

  18. Perhaps as apt: “Why man, [the executive] doth bestride this world like a colossus and we petty men walk under [its] huge legs and peep about to find ourselves dishonorable graves.”
    History will show that none of our freedoms were taken from us, we gave them away. The antithesis of what it is to be an American.

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