Monday, November 23, 2009

Gitmo lawyer can't sue on behalf of hypothetical future clients

A lawyer by the name of Fenstermaker brought a lawsuit on behalf of detainees at Guantanamo Bay. Fenstermaker is not detained there, but his clients are. He alleged violations of their right to counsel and the speedy trial rules. The Court of Appeals says he can't do this.

The case is Fenstermaker v. Obama, a summary order decided on November 3. A lawyer can sue on his client's behalf if, among other things, he has a "close relation" to clients who are hindered from pursuing their own interests. There is no "close relation," however, because Supreme Court precedent holds that lawyers cannot premise third-party standing on hypothetical future clients. Kowalski v. Tesmer, 543 U.S. 125 (2004). Another reason why Fenstermaker cannot sue on his clients' behalf is that their interests may not be in alignment. Fenstermaker alleges the government has violated the speedy trial rules, "but detainees [who are facing trial for war crimes] may well have an interest in avoiding prosecution or challenging their detention through other legal avenues.

Fenstermaker did bring a claim on his own behalf: he alleged that the government violated his First Amendment right to disseminate information to detainees about his legal practice. The Court of Appeals disagrees. There is a kernel of a First Amendment claim here because "litigation is a form of political expression protected by the First Amendment." Attorney advertising is also free speech. But "defendant's inability to deliver Fenstermaker's statement of practice to unknown detainees not yet subject to military commission charges does not violate the First Amendment." He could have sent information about his practice to detainees at an address made available by the Defense Department, and since he has no right to send out this information in the manner of his choosing, there is no First Amendment violation.

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