Attorney Access to GTMO Detainees

All detainees at U.S. Naval Station Guantanamo Bay, Cuba (GTMO) are afforded or may engage 

legal representation in the following circumstances:

(1) To exercise their right to test the Government’s detention authority through a Petition for 

Writ of Habeas Corpus in federal court; 

(2) To defend against charges under the Military Commissions Act (MCA); and / or 

(3) If eligible for evaluation by the Periodic Review Board (PRB), to assist with preparation 

and advocacy during the PRB process. 

Attorneys representing detainees in habeas or military commissions matters are—at minimum—

permitted in-person meetings and the exchange of private and confidential mail with their clients. 

FEDERAL HABEAS CORPUS PROCEEDINGS

• If a detainee who is not presently represented by habeas counsel wishes to file a petition, the 

detainee notifies Joint Task Force Guantanamo (JTF), who through the Department of 

Defense Office of General Counsel (DoD OGC), will notify the Department of Justice 

(DOJ). All detainees have been informed of their right to file a habeas petition. 

o DOJ will ensure notification of the habeas court and the habeas court will typically 

appoint federal public defenders as counsel for the detainee. 

o The JTF will also facilitate the detainee’s submission of a letter to the habeas court 

through the U.S. Postal Service notifying the court of the detainee’s desire for 

representation. 

• An attorney representing a detainee in habeas proceedings who is interested in meeting with 

the detainee must obtain a security clearance from the Department of Justice, enter an 

appearance before the habeas court and sign the Memorandum of Understanding (MOU) 

attendant to the appropriate protective order governing counsel access to classified 

information. 

• Once counsel has obtained the consent of the detainee to represent him, entered an 

appearance, and signed the MOU associated with the protective order in the case, counsel 

may regularly communicate with and meet with their client.

• Counsel may contact DoD OGC to initiate the scheduling of a call or meeting with their 

client. 
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• Habeas attorneys may use a “Privilege team” as set forth in the Habeas Protective Order to 

courier confidential legal mail between a secure facility in Northern Virginia and the detainee 

at GTMO. For additional information, see Department of Defense, Office of General 

Counsel, [July 27, 2023] Memorandum, “Important Information Regarding Habeas Visits, 

Telephone Calls and Mail.” 

• Habeas attorneys are afforded a confidential meeting space at GTMO to conduct privileged 

meetings with their detainee clients. 

• Non-High Value Detainees may conduct unclassified phone calls with counsel, monitored by 

a Privilege team to prevent disclosure of classified information, or unmonitored secure phone 

calls at the SECRET level. 

MILITARY COMMISSIONS

• Under the MCA, a detainee alleged to have committed an offense triable by military 

commission, known as an “accused,” is assigned military defense counsel as soon as 

practicable after charges are sworn. 

o All attorneys for the accused have security clearances and are assigned by the Chief 

Defense Counsel (CDC) of the Military Commission Defense Organization. 

o The accused may also be assigned assistant defense counsel (civilian or military).

o To the maximum extent practicable, in capital cases the accused will be assigned a 

civilian or military attorney learned in applicable law relating to capital cases. 

o Pro bono civilian attorneys who meet the criteria set forth in Chapter 9 of the Regulation 

for Trial by Military Commission (2016 Edition) may also represent a detainee at no cost 

to the Government. 

o For additional information on the assignment of defense counsel, see The Military 

Commissions Act, 10 U.S.C. § 948l; Rules for Military Commission 505, 506, Manual 

for Military Commissions (2019 Edition); and Regulation for Trial by Military 

Commission (2016 Edition), each available at 

www.mc.mil/LEGALRESOURCES/MilitaryCommissionsDocuments.aspx. 

• Once defense counsel have been assigned to a case, defense counsel will contact the 

Litigation Support Section (LSS) of the Joint Task Force Staff Judge Advocate’s Office to 

verify that the attorney is a counsel of record in the detainee’s military commission and to 

schedule meetings related to military commissions.
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o Detainees who may be called as a witness before a military commission may also be 

assigned defense counsel who agree in writing to be bound by the terms of the protective 

orders and written communications orders in the case to which their client detainee’s 

testimony is relevant.

• If approved by the CDC, counsel for a detainee whose charges have been withdrawn or 

dismissed or are not otherwise governed by commission-issued protective orders and written 

communications orders, may continue to access their detainee client pursuant to the terms of 

the Joint Task Force Commander’s order of August 1, 2015 “Detainee Legal and Non-Legal 

Mail Handling Guidance” or its successor order, unless and until a superseding order is 

issued by the commission or other competent authority.

• Military commission counsel may also serve as habeas counsel after following the 

procedures outlined in the habeas section and, for Military attorneys, after receiving the 

authorization of their Service Judge Advocate General.

PERIODIC REVIEW BOARD

• Detainees in the PRB process are assigned a Personal Representative (PR) by the Periodic 

Review Secretariat (PRS) to assist them with preparing for a PRB hearing and drafting 

written submissions for a file review. 

• A PR is a DoD military officer (other than a judge advocate, chaplain, or public affairs 

officer), at the grade of O-3 or higher, who shall be detailed to the PRS and possess a security 

clearance sufficient to review the material before the PRB. 

o The PR is assigned to assist the detainee in the PRB proceedings by advocating on behalf 

of the detainee before the PRB and shall be responsible for challenging the 

Government's information and introducing information on behalf of the detainee. 

• Detainees in the PRB Process may also engage private counsel (PC) at no cost to the 

Government. 

o The PC must hold a current, valid United States security clearance at the SECRET level 

for detainees other than high value detainees and a TS//SCI with Special Access Program 

read-on for high value detainees. 

o The PR must be present in any meeting between the PC and the detainee. 
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• If a detainee elects to engage a named civilian attorney at no cost to the government, the 

detainee informs his PR, who contacts the named attorney to determine if the attorney is a 

“prospective PC.” 

o A “prospective PC” could be any attorney with a current or past attorney-client 

relationship with any detainee through habeas corpus or military commissions litigation. 

o If an attorney is not considered a prospective PC, the attorney may still be able to serve as 

a PC if the attorney elects to serve as a PC for the subject detainee at no cost to the 

government and otherwise meets all of the requirements as established by the PRS.

o Only one PC may be authorized to assist the detainee in the PRB process. 

• To gain access to the detainee, a PC must sign and submit a non-disclosure agreement and 

the PRS Memorandum of Understanding through the detainee’s PR. 

• A PC wishing to meet with a detainee for purposes of the PRB process must contact the PR 

to schedule an attorney/client visit and meeting. A PC, who represents the same detainee in 

habeas proceedings, need not include the PR in meetings scheduled solely for habeas 

purposes. 

• The PRB provides a privileged, legal mail process akin to the habeas process. The PR will 

provide the relevant procedures to the PC. 

• For more information on PC in the PRB process, see Section 5.f of Policy Memorandum, 

“Implementing Guidelines for Periodic Review of Detainees Held at Guantanamo Bay per 

Executive Order 13567,” February 15, 2019, available here: 

https://www.prs.mil/Portals/60/Documents/Governance/POLICY%20MEMORANDUM%20

IMPLEMENTING%20GUIDELINES%20FOR%20PERIODIC%20REVIEW%20OF%20D

ETAINEES%20HELD%20AT%20GUANTANAMO%20BAY%20.pdf.