A Court Denounces 'Executive Fiat'

By The New York Times | Editorial

08 September 12

n a scalding opinion issued on Thursday, Judge Royce Lamberth of Federal District Court rejected new rules imposed by the Obama administration last spring that limit access to counsel for prisoners at Guantánamo Bay, Cuba, who are not actively challenging their detention.

Calling the government's position an untenable challenge to the separation of powers, he said the administration had improperly given itself "final, unreviewable power to delay, hinder or prevent access to the courts, " which amounted to "executive fiat."

Under the new rules, those not challenging their detention would not be guaranteed access to their lawyers. Instead, the military commander of Guantánamo would have "authority and discretion" to decide whether they could meet, and about other matters, like whether lawyers would have access to their own files containing classified information.

The judge wrote, "It is clear that the government had no legal authority to unilaterally impose" the new rules. He declared them null and void, saying the court would not abdicate "its great responsibility to guarantee that its doors remain open to these detainees."

The decision keeps in place a court order that has ensured that all prisoners have access to lawyers and that their lawyers can use classified information, including documents they have produced while representing clients, and can discuss classified information with lawyers for other detainees. Those older rules have worked acceptably for eight years; there is no reason to alter them.

Access to the courts "means nothing without access to counsel," the judge said. Most of the prisoners do not speak English, some are illiterate, and all hail from foreign lands with wildly different legal systems. Their access to counsel is crucial to their right to prove that their detention is lawless.

A decade after the first prisoners were taken to Guantánamo, "not a single one has been fully tried or convicted of any crime," Judge Lamberth wrote. He is completely right in his insistence that the administration respect the rule of law.