Skimming through the news reports today, I came across this article on CNN.com that criminal defense and criminal appeals attorneys might want to read.

According to the article, the U.S. Department of Justice has recently taken the position that only the Government can decide when Guantanamo detainees should have regular access to their attorneys.  At issue is whether a 2008 Supreme Court decision, Boumediene v. Bush, gives federal courts the ultimate power to control habeas petitions from enemy combatants in U.S. military custody.  While pro bono lawyers argue that they should have regular access to their imprisoned clients, even if there is no active habeas challenge pending in court, or any pending charges, the Justice Department disagrees.

The Justice Department acknowledges that it has already started restricting when Guantanamo prisoners can challenge their detention in the United States District Court for the District of Columbia.  However, the Justice Department has proposed even further changes to the current rules governing attorney access.  Under the proposed changes, the Navy base Commander at Guantanamo would have sole veto power over attorney access, as well as access to classified material, including information provided directly by the detainees from interrogations.  Some chilling words from the Government’s pleadings:

The dispute thus before the Court, though important, is quite narrow . . .The only question presented is whether detainees who have neither current nor impending habeas petitions are entitled to” challenge continued access to counsel. The answer to that question is ‘no.’

If this language is not scary enough, the Justice Department has argued that although it does not seek to restrict lawyers who have an active legal appeal, the rights of detainees shrink once they have filed their first habeas challenge.  According to the report, the military wants lawyers to agree to the new conditions in order to have continued access to their clients and to any classified information the military would deem to release.  Wow.

The Judge to whom all the Guantamo cases are assigned, Chief Judge Royce Lamberth of will preside over a hearing on the issue on August 17, 2012.