Yesterday petitioner-appellees Saeed Mohammed Saleh Hatim, Abdurrahman al-Shubati and Fadel Hentif filed a joint motion for en banc rehearing in Hatim v. Obama, the counsel access case. The detainees seek review of a three-judge D.C. Circuit panel's August 1, 2014 decision upholding the constitutionality of security procedures instituted at Guantanamo in 2012 and 2013, including genital searches before and after detainees meet with their lawyers.
Recall that in a July 2013 ruling, D.C. District Chief Judge Royce Lamberth found that the highly deferential Turner v. Safley standard for determining the constitutionality of prison regulations was inapplicable to security protocol that interfered with the detainees' right to petition for habeas, and moreover that the search procedures failed the standard. The D.C. Circuit quickly stayed and then ultimately reversed the lower court's decision---holding that Turner applied and that the challenged polices were reasonable under the four-factor Turner test.
In their new filing, the detainees track Chief Judge Lamberth's reasoning, arguing (1) that the three-judge panel incorrectly held that Turner applies to polices that burden detainees' access to habeas counsel, and in the alternative (2) that even if the Turner standard applies, the panel erred in construing the standard in such a way as to require courts "to ignore their common sense and blindly defer to the prison commander’s 'view of the matter.'"
The detainees conclude:
The panel allowed an impairment of the habeas right largely because it accepted “the government’s view of the matter” and refused to “second-guess” the “judgment” of prison officials. It did so in the face of detailed findings that the claimed “judgment” was pretextual. Slip op. at 9, 13. The panel’s purported Turner review of the policies was an empty exercise (going so far as to permit genital-area searches in connection with phone calls, where there is no possibility of “smuggling” medications or contraband), with no consideration of the extent of the harm to petitioners, and no real evaluation of the reasonableness of the challenged policies. Respectfully, the Court should grant the petition for rehearing en banc.