Detention: Law of: D.C. Circuit Development

Appellants File Reply Brief in Hatim v. Obama

By Jane Chong
Thursday, August 15, 2013, 3:24 PM

The government has filed its reply in support of its July motion for a stay pending appeal in Hatim v. Obama. At issue is Chief Judge Royce Lamberth’s July 11, 2013 order invalidating Guantanamo security procedures that require, among other things, detainees to undergo genital-area searches before and after meetings or telephone calls with defense counsel. For background on the government’s original motion and the appellees’ response, see Raffaela's August 5 post. See Wells's summary of Chief Lamberth's order here.

In its reply brief, the government pares its argument for a stay of the district court's ruling down to three main points. Two are jurisdictional. First, the government claims that the D.C. Circuit has jurisdiction, notwithstanding the appellees' attempt to characterize the order as an unappealable case management order rather than an injunction. Second, the government claims that the court below lacked jurisdiction to enter the order under 28 U.S.C. 2241(e)(2), which precludes judicial review of Guantanamo detainees' conditions of confinement.

The government dedicates most of its brief to arguing that the past discovery of contraband among the detainees "more than justifies" the security procedures and that a stay is needed to preclude “irreparable harm.” To support its argument, the government points to the suicide of detainee Adnan Farhan Abd Latif  and to two incidents this past year in which shanks, nails and other contraband were discovered among detainees.

The government also claims that the appellees incorrectly portray Admiral Patrick Walsh’s descriptions of the old security procedures in his 2009 report on conditions of confinement at Guantanamo as recommendations. Security, according to the government, is a moving target:

That the military officers responsible for security at Guantanamo once believed the risk posed by exempting the groin area from search was acceptable does not prevent them forever from changing their minds about that risk – particularly in light of new information indicating that the previous procedure was insufficient to maintain safety and security at the facility.

As might be expected, throughout its brief, the government rejects what it perceives as the detainees’ attempt to depict the district court's ruling as an access-to-counsel issue, and emphasizes the risks posed by the district court's intrusion on matters properly subject to military discretion.

[T]he United States has a strong interest in ensuring the detainees at the Guantanamo Bay detention facility have meaningful access to counsel to pursue their habeas rights, and as the record establishes, from January through May of this year, over 193 attorney visits were scheduled and, from March through May of this year, approximately 100 calls between detainees and counsel have occurred, almost as many that occurred in all of 2012. Kelly Decl. ¶ 12. The issue is that the district court's order is not a routine order managing court procedures. The district court improperly substituted its judgment for that of a military official, imposing its own set of rules governing how detainees will be searched, where meetings with counsel will be conducted, and which vehicles the military must use to transport detainees. A stay is warranted here because the district court's decision is clearly incorrect and because it will create substantial security risks at a military detention facility.