Detention: Law of

The Government's Opening Brief in the Counsel Access Case

By Raffaela Wakeman
Saturday, September 21, 2013, 2:00 PM

The government has filed its opening, appellant brief in Hatim v. Obama, the "counsel access case" before the D.C. Circuit.

Before describing the brief, a bit of background is in order: this past summer, Senior District Court Judge Royce Lamberth partially invalidated recently-instituted search protocols for detainees held at Guantanamo Bay. These procedures were mandatory prior to detainees' meeting with or speaking on the phone to their attorneys or other non-JTF-GTMO staff. Detainees had challenged the new procedures, arguing that they unlawfully deterred them from access to counsel.

After Judge Lamberth's ruling, the government sought a stay to the underlying order, pending the D.C. Circuit's full consideration of the issues. The D.C. Circuit granted that motion, and the detainees then moved for an expedited briefing schedule. That too was granted by the three-judge panel composed of Circuit Court Judges Karen LeCraft Henderson, Janice Rogers Brown and Thomas Griffith. Most recently, I summarized a mostly-uneventful status conference in the District Court before Judge Lamberth in early September, in which a detainee claimed to have successfully called his attorney without being subjected to the offensive search procedures.

The government begins its brief by explaining the three justifications behind the search procedures, which include genital-area searches: first, the new JTF commander, Col. John Bogdan, was concerned that old the search procedures might not be effective in catching weapons and contraband; second, the conclusion that detainee Adnan Latif's death was a suicide caused by overdosing on hoarded medication demonstrated the search procedures might indeed be ineffective; and third, in turning Camp 6 into single-cell housing from group housing, JTF staff found contraband in detainees' possession, showing further evidence of the procedures' lapses. This all led to the conclusion that the search procedures, which had been modified to respect detainees' religious beliefs, introduced "an unacceptable risk." So more comprehensive search procedures were "necessary to maintain the safety and security of detainees, personnel, and visitors at the detention facility."

A second, related issue addressed in Judge Lamberth's ruling affected the location of meetings between counsel and detainees. Col. Bogdan had required these meetings to take place exclusively in Camp Echo, which afforded greater facility security and had additional amenities: larger rooms, prayer space, and a centralized monitoring room that reduced the number of camp personnel required to monitor detainees during these meetings. Previously, meetings were permitted to take place either at Camp Echo or in Camp 6, where some detainees are housed. Judge Lamberth amended the 2008 Protective Order entered by Judge Thomas Hogan, which governs detainee-counsel visits, to require that visits with detainees who are either participating in the hunger strike or for health reasons are unable to travel must take place in the detainee's housing camp, not at Camp Echo.

The third issue addressed in Judge Lamberth's order that mandated a change in JTF procedures involved the manner of transportation for detainees when being relocated from their housing camps to another part of the detention facility. Detainees had complained that new vans, introduced in the spring of 2013, prevented them from sitting upright as the roofs are much lower (to accommodate larger air ducts and better air flow, the government argues). Judge Lamberth ordered the JTF to transport detainees, at the detainees' request, in a vehicle that allows them to sit upright.

The government maintains that Judge Lamberth lacked jurisdiction to issue his order, and in the alternative that he lacked a basis for invalidating the policies. In the Military Commissions Act of 2006, §2241(e)(2), it argues, Congress barred the federal courts from hearing cases related to "any aspect of the detention, transfer, treatment, trial, or conditions of confinement" for those detainees held as enemy combatants. Judge Lamberth had concluded that the procedures at issue in this case interfered with access to counsel and thus fell outside this bar. But the government counters that because these procedures apply across the board---whenever a detainee meets with the ICRC or medical staff, or speaks on the phone with family---it's not reasonable to conclude that they are so burdensome so as to preclude counsel visits. Moreover, the government points out, numerous detainee-counsel meetings have taken place since revising the procedures.

The government also argues in the alternative that, should the D.C. Circuit agree with the District Court on the jurisdictional question, it should nonetheless invalidate Judge Lamberth's order, as the policies it overturned are reasonably related to the government's legitimate interest in security at Guantanamo Bay. The District Court improperly inferred, the government contends, that the motivation for the policy change was unreasonable. Under Turner v. Safley, security policies at prisons and jails are upheld if they are "reasonably related to legitimate penological interests." The government argues that the standard for evaluating Guantanamo detention facility procedures should be at least as deferential as the one applied to U.S. prisons and jails. Moreover, the new policy is justified because the prior search procedures did not, in fact, prevent detainees from collecting contraband in their cells, the government urges. Finally, in the government's view, the District Court applied a subjective standard, rather than the objective standard articulated in Turner, to the procedures in question.