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Response Brief in Counsel Access Case, Hatim v. Obama

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Saturday, October 19, 2013 at 3:00 PM

Guantanamo detainees have filed their response brief in the D.C. Circuit appeal of Hatim v. Obama, the “counsel access” case. As in other ongoing litigation, the government had moved for extending the filing deadlines, but the government is back up and running now, so presumably so are all these cases (the appellees, before the government reopened, opposed the its request of an extension on its reply brief.)

As I explained earlier, this case is an appeal of District Court Judge Royce Lamberth’s order invalidating certain newly-instituted procedures at the detention facility, including genital-area searches, to which Guantanamo detainees were  subjected, prior to meeting with or speaking on the phone with non-JTF-GTMO staff, including attorneys.  The government is of the mind that Judge Lamberth lacked the jurisdiction to invalidate the procedures, as the MCA §2241(e)(2) prohibits the federal courts from hearing cases dealing with “any aspect of the detention, transfer, treatment, trial or conditions of confinement” of the Guantanamo detainee population. Should the D.C. Circuit find jurisdiction, the government argues in the alternative that the procedures are reasonably related to the government’s legitimate interest in security at GTMO, and thus Judge Lamberth’s order should be overturned.

In their current brief, appellees emphasize the limited scope of Judge Lamberth’s order in countering the government’s §2441(e)(2) jurisdictional bar argument: they point out that the order only prohibits genital-area searches in connection with meetings with counsel. This narrow ruling, they argue, thus falls under the district court’s jurisdiction under Boumediene. 

Moreover, they take on the notion, advanced by the government that the searches are universally applicable—and thus not limited to meetings with counsel. The government’s argument that the universal application of the genital-area searches shields the practice from district court review is “impossible to take seriously.” Indeed, a footnote in appellees’ summary of Judge Lamberth’s order and the government’s justifications for the searches provides more details about the suggestion in a September status conference that the new search procedures might not be universally executed:

One of these petitioners, Saeed Mohammed Saleh Hatim, had refused a meeting and a phone call in May and a phone call in July with counsel. . . . However, he participated in a call in August, advising counsel that he was not subject to a genital-area search for that call. He then refused an attempted follow-up call on September 23, 2013, evidently because he would be subjected to a genital-area search. Counsel arranged another follow-up phone call, for October 10, but he refused that call as well.

The government didn’t dispute the conclusions that the procedures did not comport with Islam, nor did it argue that Judge Lamberth’s conclusions were clearly erroneous, the response brief points out, demonstrating that they are controlling on appeal.

Detainees next dismiss the government’s analogy of their case to those of federal prisoners, which the government relied upon in its brief to demonstrate that the procedures are reasonably related to the government’s legitimate interest in security at the detention facility. The detainees are, they argue, challenging the executive branch’s authority to detain them, while federal prisoners’ concerns relate to abridgment of constitutional rights such as free association that prison procedures may not implicate, they argue, so the cases are not parallel. Despite that misapplication, detainees nonetheless argue that the genital-area searches failed to meet the domestic-prison standards the government points to.

Finally, appellees turn to what might be the government’s strongest argument: the evidence that contraband had entered the facility, and that Adnan Latif’s suicide had been enabled by his hoarding of medication, demonstrating, at least to the government, that the prior search procedures had not been sufficiently comprehensive.

The detainees interpret the contraband evidence differently: they say that as the evidence did not demonstrate that contraband was smuggled in during attorney-client meetings, its discovery is not sufficient to impose the new search regime on detainees in connection with their meetings with counsel. This argument echoes the detainees’ earlier contention: that the procedures were invalidated only on the narrow, counsel-related grounds, to jive with Boumediene.

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