In describing Hatim v. Obama (the D.C. Circuit Guantánamo appeal in which the government filed its opening brief on Friday) as the "counsel access" case, Raff has hit the nail on the head. Although the appeal involves the district court's power to enjoin new security procedures adopted by the government at Guantánamo (the same genital search procedures that helped to precipitate the still-ongoing hunger strike), Hatim is really about the detainees' continuing right of access to counsel. In part to vindicate that right, the district court enjoined the new security procedures--helping to provoke the government's appeal. And so long as there is such a right, the two central arguments in the government's brief are, in my view, unavailing. More fundamentally, Hatim is the most significant Guantanamo detention-related case to come to the D.C. Circuit in almost two years--and how it is resolved will have a lot to say about the future of judicial review vis-a-vis the Guantanamo detainees.
As the government explains in its brief, the new security procedures (which apply anytime a detainee is moved out of their immediate housing area for any reason, including to meet with counsel) were adopted in May, after concerns were raised by various military officials that the existing search procedures were inadequate and/or ineffective to interdict contraband. Faced with the choice of enduring the new procedures or remaining in their housing area (and therefore not meeting with counsel, among other things), a number of detainees opted for the latter course. Counsel for three of those detainees filed two motions for emergency relief, which the district court granted in part on July 11. Specifically, Judge Lamberth concluded that the new security procedures were invalid insofar as they interfered with the detainees' right of access to counsel--a right he himself had confirmed in an important September 2012 decision.
The government subsequently sought first an interim, and then a permanent stay from the D.C. Circuit, and obtained both, leaving the procedures in place pending the current appeal. And in its brief on the merits, the government offers two distinct grounds for vacating Judge Lamberth's order: First, the government argues that the surviving jurisdiction-stripping provision of the Military Commissions Act of 2006, 28 U.S.C. § 2241(e)(2), divests the federal courts of jurisdiction to fashion such relief. Second, even if it doesn't, the government argues that the new search procedures satisfy the deferential standard for prison regulation articulated by the Supreme Court in Turner v. Safley. Each argument suffers from the same flaw--the government's refusal to accept the counsel-based implications of the Supreme Court's 2008 decision in Boumediene v. Bush, which guarantees to the detainees a "meaningful opportunity" to object to their detention at Guantánamo.
II. The Jurisdiction-Stripping Issue
Readers certainly recall that in Boumediene, the Supreme Court struck down the habeas-stripping provision of the MCA, 28 U.S.C. § 2241(e)(1), as applied to the Guantanamo detainees, holding that (1) the Constitution's Suspension Clause "has full effect" at Guantanamo; and (2) the review available under the MCA was an inadequate substitute to the minimum required by the Suspension Clause--a detainee's "meaningful opportunity" to contest the legality of his detention before a neutral decisionmaker. But Boumediene said nothing about the MCA's other jurisdiction-stripping provision, which purports to divest the federal courts of jursidiction over "any other action" "relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of the detainees. And at least thus far, the D.C. Circuit has upheld the constitutionality of this provision as applied to, for example, suits for damages arising out of allegedly unlawful detention and treatment at Guantanamo.
The government's argument is a variation on this theme. In its view, the detainees are, in effect, seeking to challenge the conditions of their confinement--a claim barred by the plain language of § 2241(e)(2). Indeed, as the government argues, challenges to conditions of confinement are not usually thought to implicate the Suspension Clause, because, even if successful, they will have no impact on the legality (or duration) of the underlying detention. Thus, there is no constitutional problem with divesting the federal courts of jurisdiction over such claims, since they're not encompassed within the scope of the Suspension Clause.
As a general matter, there's much to commend about the government's argument. Reasonable folks can disagree about whether the Suspension Clause should encompass challenges to conditions of confinement, but there can be no disagreement about the paucity of authority holding as much. The problem is that, as Judge Lamberth explained in rejecting this argument in the district court, the detainees are not challenging the conditions of their confinement as such; they're challenging the conditions of their confinement insofar as those conditions interfere with their ability to meet with counsel--and, thus, to take advantage of the "meaningful opportunity" Boumediene requires.
This is where Judge Lamberth's September 2012 ruling becomes key. As I've explained previously, that ruling, which came as part of the litigation over the proposed new Memorandum of Understanding (MOU), concluded that the detainees' continuing right of access to counsel is directly and inextricably tied to their entitlement to judicial review under the Suspension Clause. If Judge Lamberth was correct on that point (tellingly, the government's brief does not challenge his analysis), it should follow that he's right here, as well: Insofar as the relief the detainees are seeking is to vindicate their right of access to counsel--and not just to challenge, on more general terms, their conditions of confinement--that relief is protected by the Suspension Clause, and so § 2241(e)(2) would be unconstitutional to the extent it divested the federal courts of the power to so provide.
To be sure, the government argues (correctly, in my view) that the search procedures sweep far more broadly than merely those instances in which detainees are to be moved to meet with their counsel. Indeed, I think § 2241(e)(2) does divest the federal courts of the power to enjoin the procedures as applied to cases in which the detainees are not going to meet with their counsel. Critically, though, Judge Lamberth's order only applies to meetings with counsel. Even if it didn't, though, the government's argument would be with the scope of the order, not the court's power to issue it. Unless the detainees' right of access to counsel is not protected by the Suspension Clause at all (an argument the government--commendably--does not make), it has to follow from Boumediene that the federal courts have the power to vindicate that right, and to thereby enjoin those government practices that unduly interfere with that right.
III. Turner v. Safley and the Merits
Of course, that only begs the question of whether the new search procedures do unduly interfere with the detainees' right of access to counsel. The government says no--that they easily satisfy the deferential standard articulated by the Supreme Court in Turner v. Safley, insofar as they are reasonably related to a legitimate penological interest.
In his July decision, Judge Lamberth rejected the government's argument that Turner governed the "merits" question. As he explained, Turner presupposes that the constitutional right at issue is one that is typically limited or altogether withdrawn in the prison context--e.g., First and Fourth Amendment rights. In those contexts, it may well make sense to impose less of a burden upon the government before allowing interference with such protections. Here, in contrast, the right at issue is the right to judicial review provided by the Suspension Clause--a right that does not lend itself to Turner's "balancing": "The right of habeas corpus is neither limited nor withdrawn in the prison context—indeed it is most valuable as a right to one who is incarcerated. To restrict a detainee's access to habeas corpus solely by virtue of his detention would run counter to the writ's purpose and would eviscerate the writ." Put another way, Turner is about what happens once a detainee has obtained judicial review; it cannot apply to how the detainee obtains access to such review in the first place.
To be sure, concluding that Turner is inapposite raises the distinct question of how courts should decide whether particular government actions interfere with the "meaningful opportunity" that Boumediene requires. After all, at one extreme, detention itself interferes with that opportunity, and yet it would be hilariously circular to argue that Boumediene therefore bars the government from even holding the detainees. Some government interference is clearly permissible; the question is how much.
But whatever the correct standard is, Judge Lamberth's intuition that it isn't Turner seems difficult to dispute, and it seems just as clear that the government would have a very difficult time meeting any higher burden (tellingly, the government's brief focuses only on the argument that the procedures satisfy Turner). Again, insofar as the central issue in dispute is the detainees' continuing right of access to counsel, Judge Lamberth seems to have the better of the argument here.
As noted above, the Court of Appeals has already issued a stay of the district court's decision, which gives at least some sense of its view of the merits of the government's appeal. And of course, the D.C. Circuit has not exactly gone out of its way to give Boumediene a broad compass in its prior rulings--especially in those rare cases, like this one, in which the government has appealed adverse decisions by the district court. And while the government's brief may not say so explicitly, the scope of Boumediene is the precise question the D.C. Circuit is being confronted with in Hatim. The government did not appeal Judge Lamberth's September 2012 decision concluding that the Suspension Clause protects the detainees' continuing right of access to counsel, and it has not directly challenged its logic in its opening brief in Hatim. But however framed, both prongs of the government's argument require the D.C. Circuit to accept that continued access to counsel is not protected by the Suspension Clause--a conclusion that, if reached, would perhaps finally provide the Supreme Court with a post-Boumediene D.C. Circuit decision that the Justices cannot ignore.