Detention & Guantanamo

A Duel of Letters in the Counsel Access Case

By Raffaela Wakeman
Monday, December 16, 2013, 1:00 PM

The nearly-singular focus of last week's oral argument in Hatim v. Obama, the counsel access case, was the intrusiveness of JTF-GTMO's genital-area searches. That focus hasn't at all shifted, judging by last Friday's letter filing from the Department of Justice.

Both sides have characterized the search process, and in a manner consistent with their litigating positions. At argument, the government suggested that the search procedures were akin to those employed by the Transportation Security Administration, when passengers refuse to go through airport body scanners.  Afterwards, long-time detainee lawyer David Remes wrote to the court and protested this account. As Wells noted, Remes said the search procedure was "more invasive and degrading" than the pat-downs sometimes administered by airport personnel.

This brings us to Friday's missive from the Department of Justice.  In it, government attorney Edward Himmelfarb qualifies his earlier analogy, of GTMO search procedures to TSA procedures.  They are different in certain respects, the lawyer acknowledges---but he cannot quite explain the differences, because TSA procedures are classified as "Sensitive Security Information."  Still, Himmelfarb reiterates that the genital-area searches represent "standard Army search procedures," and reflect the "considered judgment of military officials regarding the level of acceptable security risk at a military detention facility."  And he challenges Remes's characterization of the searches, as being "far worse" than those conducted by TSA, as inaccurate.

Himmelfarb lastly comments on the detainees' suggestion that the court should consider that guards may implement the search procedures to varying degrees.  The record contains no evidence along such lines, according to the government attorney.