A decision last month by U.S. District Court Judge Colleen Kollar-Kotelly to allow three detainees at the Guantanamo Bay detention center to have speedy and meaningful access to lawyers is not just correct. It also is an important aspect of restoring a measure of honor to the way the U.S. government has chosen to handle these prisoners.
The United States has held about 540 people at Guantanamo — mostly captured during the Afghan war, some brought there under different circumstances — for up to three years without charges being filed against them or without giving them access to lawyers.
By unilaterally declaring them “enemy combatants,” the government claimed it didn’t have to treat them as POWs under the Geneva Convention.
Later it allowed some to talk to lawyers, but maintained this was by permission not by right.
This summer the U.S. Supreme Court ruled that the Guantanamo detainees have the right to challenge their imprisonment in U.S. courts. But the decision was a bit vague on the circumstances under which they could speak to lawyers and whether any federal court in the United States would have jurisdiction.
Robert Levy, a senior fellow in constitutional law at the libertarian Cato Institute, said Judge Kollar-Kotelly’s decision was “important in two respects. It made explicit that the detainees have a right to consult with an attorney, and ruled further that the consultation should be under the conditions of privacy that have been traditional in U.S. law from the beginning.”
Even after the Supreme Court ruling, the government still claimed that speaking with an attorney was a privilege not a right, and wanted to monitor and videotape all attorney-client conversations and review attorneys’ notes and mail.
Judge Kollar-Kotelly ruled that was an unwarranted abuse of the traditional attorney-client privilege. She addressed the government’s concerns that the prisoners might use conversations with attorneys to send messages to terrorist allies outside by ruling that all attorneys would have to get a security clearance, and that they would not be allowed to talk about their conversations with anyone, including members of detainees’ families.
That is reasonable.
What is shocking is that in the midst of a struggle that so many of our leaders want to characterize as a battle between civilized societies that operate by the rule of law and vicious, lawless terrorists, the government has been so stubborn about wanting to take legal shortcuts that undermine the rule of law.
Judge Kollar-Kotelly’s decision should correct some of the Justice Department’s more egregious enthusiasms.