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. Pollyanna, I wondered what the judge’s political point of view is also Like it or not, the judiciary is supposed to be independent (haha).

  2. Edmond Dantes: “But I am innocent.”

    Warden of Chateau D’if: “Of course you are innocent. If you were truly guilty, there are a hundred prisons in France where they would lock you away. Chateau D’If is where they put the ones they’re ashamed of.”

    I think that about covers it for Guantanamo Gulag.

  3. This dog like the opinion but it was a bit tedious at times. It would be very good to try all of the detainees (nice word) right away. If you have evidence against them then put it on in court. If not let em go. They are all entitled to counsel, counsel of their choosing, an interpreter, a law library, Westlaw, computers, paper, pens, typewriters. If they dont have them at Gitmo then get them there posthaste.

  4. From Wikipedia: “In August 2010, Lamberth issued a temporary injunction blocking an executive order by President Barack Obama that expanded stem cell research. He indicated the policy violated a ban on federal money being used to destroy embryos,[7] called the Dickey-Wicker Amendment.[8] Some commentators have surmised that his decision is more a reflection of his politics than a rigorous interpretation of the Dickey-Wicker Amendment.[9]” — Hard to tell when a decision is politically motivated.

  5. I assume that the judge has accounts, expenses, etc that are in no way interpretable as being other than totally squeaky clean.
    The same would apply for any computer systems that could be deemed to be under his control.
    He should also be careful to ensure that he has paid for everything on his person when exiting shops.
    That kind of stuff.

  6. JT it isn’t hard to find judges who (suddenly) have an opinion against executive power. Many of them had no problem with it just a few short years ago, Its almost as if something (and not the law or legal reasoning) changed 3-4 years ago. I wonder what it could have been? If only there was something obvious that changed around 2008 or 9 I bet we could figure it out.

    Corrupting the judicial branch is going to be the greatest crime the GOP has commited & thats saying something

  7. nick,

    You assume that the worst thing that can happen to someone is getting fired, yet I gave you examples of things that have happened to real dissenters which were worse than losing one’s job.

    This is a mafia state. Things happen to people which are quite scary. Taking away someone’s job is a terrible thing, but it is only one tool in the tool box of the state.

    Most judges have ruled against any kind of justice for detainees in Gitmo. They have accepted ridiculously lame arguments from the govt. and not upheld the rule of law. Only a few lower court justices have stood up and been counted on behalf of the most basic rights in our Constitution. They are to be commended for doing what lesser men and women refuse to do.

  8. It doesn’t matter if he is federal judge or not. What matters is that he said and did the right thing. I

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