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Oral Argument Preview: Hatim v. Obama, or the “Counsel Access Case”

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Friday, December 6, 2013 at 5:25 PM

On Monday morning, a significant Guantanamo case, Hatim v. Obama et al., will be argued before D.C. Circuit Judges Merrick Garland, Karen L. Henderson, and Thomas B. Griffith.  Petitioners and respondents both will have fifteen minutes to present arguments, in what has come to be known as the “Counsel Access Case.”  It will be the first matter heard by the three-judge panel.

We’ve covered the Counsel Access Case extensively.  This past summer, Senior District Court Judge Royce Lamberth partially invalidated some then-only-recently-instituted search protocols for Guantanamo detainees. These were mandatory in character, and preceded the detainees’ meeting  and telephone chats with attorneys or other not affiliated with Guantanamo.  The detainees brought a legal challenge, arguing that the procedures unlawfully deterred them from conferring with counsel (and thus undercut the promise of the Supreme Court’s consequential Boumediene ruling).

To evaluate the requirement of a genital area search  (perhaps the most controversial procedure at issue, and one likely to occupy significant argument time on Monday), Judge Lamberth used the four-factor analysis delineated by the Supreme Court in Turner v. Safely. (The legal test balances prisoners’ rights against government interests; Turner involved regulations set by a state’s corrections department.)  First, he found that the search protocols’ justification lacked a “valid, rational connection” to the government’s stated interest of ensuring security.  (The United States’ lawyers had cited fears of inconsistent application; the suicide of Adnan Latif, which was facilitated by hoarded medications; and the discovery of contraband in Guantanamo’s Camp Six.)  The district court thought the new regime to be an “excessive response,” as the procedures “actively discourage[d]” the detainees from communicating with their attorneys. As to the  second factor—whether there exists an alternative means to exercising the right to counsel, given the restrictions— Judge Lamberth found that, in fact, none existed for petitioners.  When considering the impact on the facility of accommodating the detainees’ counsel rights, the third Turner factor, he likewise concluded that the government failed to show that any disruption would occur, if JTF-GTMO reverted back to the older (and more permissive) setup.  The fourth and final Turner factor was whether the government had equally effective, less rights-restricting approaches available to it.  Here, Judge Lamberth offered up the previous search policy, for him an “‘obvious, easy,’ and proven alternative.”  The government’s had said prior search procedures facilitated Adnan Latif’s suicide; but the district court rejected this as “purely speculative” and argued that it did not “diminish the fact that the prior search procedure represents an easy alternative.”

Which brings us to the United States’ appeal.  The government (opening, reply briefs) is of the mind that, under the Military Commissions Act of 2006, §2241(e)( 2), federal courts are barred from hearing cases related to “any aspect of the detention, transfer, treatment, trial, or conditions of confinement” for detainees held as enemy combatants.  The search policy falls squarely within such language; thus the district court’s threshold conclusion—that it had jurisdiction over the case—was incorrect.

As for the merits, the United States emphasizes that its policies applied universally, and in a non-discriminatory fashion.  All detainees, in all meetings with non-JTF-GTMO-affiliated individuals, were required to undergo the search procedures—including detainees whose habeas petitions had run their course in the federal courts.

Lawyers for the government alternatively urge a deferential standard of review, as set forth in Turner.  Here the government implies that, in the military detention context,  an even more deferential standard would come into play—for if prison policies are entitled to deferential assessment under the law, then surely military detention policies must also be so.  And it is moreover clear that the district court did not accord due deference, under Turner or under some higher standard, to the meeting rules established by JTF-GTMO.

To the government, this situation offers a clear illustration of why judges  should pay heed to detaining authorities.  For example, Department of Justice lawyers read Judge Lamberth’s order as lacking an explanation for how the camp commander’s rationale in setting the policies was insincere or otherwise bad.  As for the detainees, their “evidence” is speculative and anecdotal, and certainly doesn’t outweigh the camp commander’s justification for requiring the search protocols in the first place: ensuring safety and preventing suicide, after multiple incidents gave rise to security concerns.

The detainees, on the other hand, see Judge Lamberth’s order not as a broad-brush condemnation of GTMO security rules, but as quite limited in scope: the order only prohibits genital-area searches in connection with meetings with counsel, after all. Such a narrow ruling certainly falls under the district court’s jurisdiction under Boumediene. The detainees also scoff at the government’s argument that, because the search procedures are universally applied, they also are shielded from district court review.  That claim is, in the detainees’ view, “impossible to take seriously.”

And what of the government’s comparison of the detainees’ circumstances, to those of federal prisoners?  The detainees see no parallel.  They are challenging the executive branch’s authority to detain them, while prisoners typically challenge the abridgment of constitutional rights. With that said, the detainees still take on the United States’ argument on its own terms—and say that genital-area searches cannot be justified according to the standards invoked by the government.

The detainees also doubt JTF-GTMO’s security-based justifications for imposing the search procedures.  The evidence did not demonstrate that contraband had been smuggled in during attorney-client meetings; and contraband’s discovery on its own wouldn’t justify impingement upon detainees’ ability to meet with counsel. This argument echoes the detainees’ earlier contention: that the procedures were invalidated only on quite narrow, counsel-related grounds, so as to ensure the sort of habeas review required by Boumediene.