Detention & Guantanamo

New Detainee Filings on GTMO Counsel Access Issues

By Wells Bennett
Wednesday, May 22, 2013, 9:22 PM

Today, counsel for Saeed Mohammed Hatim filed an "Emergency Motion Concerning Access to Counsel," both in the Yemeni detainee's recently reactivated habeas action, and in In Re: Guantanamo Bay Detainee Continued Access to Counsel, a separate matter on the district court's miscellaneous docket.  In the latter, the filing was made both on Hatim's behalf and that of various other detainees, who suffered or might suffer infringements on their counsel access rights.

The gist of the motion---which cites a number of declarations and exhibits---is that certain GTMO protocols, including body search procedures, chill detainees from meeting with lawyers.  From Hatim's filing:

Most Guantánamo detainees are held in two closely-adjacent prisons, known as Camp 5 and Camp 6.  (The so-called “high value” detainees are held in a separate facility.)  Historically, counsel have met with their clients either in Camp 5 or Camp 6, i.e., in the prisons where they are being held, or in a separate nearby facility known as Camp Echo.  Ex. A, Declaration of David H. Remes, ¶ 5 (“Remes Dec.”).  Camp Echo contains huts where meetings between detainees and counsel can take place.  Compared to meetings in Camp Echo, meetings with counsel in Camp 5 or Camp 6 are more convenient for the detainee and the prison staff because they do not require that the detainee be transported by van from his prison camp to Camp Echo.  Detainees have telephone calls with their lawyers in another facility, Camp Delta.  Id.

Counsel for Hatim travelled to Guantánamo in late April 2013, to meet with Hatim and other clients.  Ex. A, Remes Dec. ¶ 9.  The meeting with Hatim was to take place on May 1, two days before a prehearing conference in Hatim’s habeas case.  Among other things, counsel ntended to consult with Hatim concerning his newly-reactivated habeas case.  Id.  The Government scheduled the meeting for Camp Echo, which would require that Hatim be transported by van from his cell in Camp 6.  Hatim reported that he would meet with counsel in Camp 6, but not at Camp Echo.  Id. ¶ 10.  Counsel was ready, willing and able to meet Hatim in Camp 6, but the Government refused, stating that it would not allow meetings in Camp 6 “in any circumstances.”  Id. ¶¶ 11–12.

The Government neither then nor now has provided any justification for its refusal to allow Hatim to meet with his counsel in Camp 6, which constituted a reversal of long-standing practice. 

As explained below, detainees have substantial reasons for not meeting in Camp Echo, and it is now clear that many detainees will forgo counsel access rather than meet in Camp Echo or have telephone calls in Camp Delta.

First, as has widely been publicized, there is an ongoing hunger-strike at Guantánamo, involving up to two-thirds of the non-“high value” detainees.  As a result, many of the prisoners are physically weak and debilitated; indeed, at least 30 have gotten so close to death that they are being force-fed through a tube shoved through the nose and down into the stomach.  See Exs. A–G. (declarations of detainees’ counsel).  In these conditions, a trip to Camp Echo or Camp Delta in a van may be so painful that a detainee will decline to speak with counsel rather than to take the trip to Camps Echo or Delta.  The Government has recently made the trip even more painful because it has begun using a smaller van, which forces the detainee, while shackled, to be in a crouched stress position.  Ex. A, Remes Dec. ¶¶ 29–34; Ex. G, Declaration of Anne Richardson  (“Richardson Dec.”) ¶ 9.

Second, and perhaps more importantly, the procedure for a trip to Camp Echo has recently been changed in a highly significant way.  Under the new policy, any trip to Camp Echo (or Camp Delta) requires an intrusive body search of the detainee, which involves touching and holding a detainee’s genitals and buttocks.  Ex. A, Remes Dec. ¶¶ 14–18.  Detainees are searched in this manner at least twice for each trip that they take from Camp 5 or Camp 6, and a guard told one detainee that he would be subjected to four genital searches for each trip to Camp Echo or Camp Delta to talk with his lawyer.  Ex. B, Declaration of Jennifer R. Cowan (“Cowan Dec.”), ¶¶ 7–8, 12.  The Government had previously recognized that such searches offend and humiliate Islamic detainees and had banned them at Guantánamo:  “Due to cultural sensitivities, modified frisk searching procedures are in place that respect the detainee’s groin area, and guards are not allowed to conduct frisk searches of this area.  Guards are limited to grasping the waistband of detainees’ trousers, and shaking the pants.”  Ex. A, Remes Dec. ¶ 37 (quoting Review of Department Compliance with President’s Executive Order on Detainee Conditions of Confinement, at 25 (2009)). The new search procedure, however, “does include the buttocks and groin area” and applies whenever a prisoner leaves his camp to go to another facility, such as Camp Echo or Camp Delta.2  It is obvious that the new search procedures, another reversal of long-standing practice, are intended to be an obstacle to counsel access.  See Ex. A, Remes Dec. ¶¶ 15–18; Ex. B, Cowan Dec. ¶¶ 10–16; Ex. C, Declaration of Erin Thomas (“Thomas Dec.”) ¶ 9; Ex. D, Declaration of Darold W. Killmer (“Killmer Dec.”) ¶¶ 7, 13–14.