Detention: Law of

A Not-So Eventful Hearing in the Guantanamo Counsel Access Case

By Raffaela Wakeman
Saturday, September 7, 2013, 2:10 PM

It was an odd turn of events yesterday at the E. Barrett Prettyman Courthouse.  For a moment, it seemed as if a controversial Guantanamo policy might be rescinded or modified.

Friday morning saw a long-scheduled status conference in the case of Hatim et al. v. Obama---in which, you'll likely recall, certain Guantanamo detainees had filed an emergency motion, and claimed that JTF-GTMO policies chilled them from meeting with their lawyers.  Such policies included, among other things, genital-area searches of the detainees before and after meetings or telephone calls with counsel. Chief Judge Royce Lamberth partially invalidated the search policy in July.  But the government then promptly appealed and, importantly for present purposes, sought and obtained a stay of Chief Judge Lamberth's ruling from the D.C. Circuit.   The effect was to leave the challenged policy intact, pending the case's resolution by the court of appeals.  Then came Friday's status conference before the district court.  

During this, it came to light that petitioner Saeed Mohammed Saleh Hatim had spoken by telephone with his counsel, but without being subjected to search procedures attacked by the emergency motion. That raised a question about whether, the litigation notwithstanding, JTF-GTMO voluntarily had changed tack and relaxed its pre-meeting search protocols. The district court thus asked the Department of Justice for more details, and to receive an update during a second and exceedingly brief hearing Friday afternoon.

So had GTMO search policies changed?  Well, no.  At least not according to the United States.  At the afternoon session, the government told the district court that, in fact, search policies remained the same as before. But that was all the government said, and its brevity left an obvious hole in the story, so far as concerns Hatim.  The government did not dispute Hatim's claim of a search-free chat with counsel, or acknowledge it while characterizing it as an aberration, or otherwise address the detainee's account.

Hatim's counsel, William Livingston, had a bit more to say.  According to his proffer, camp officials had told detainees that an earlier, less intrusive policy was now in force.  But Livingston and other lawyers could not, however, ascertain whether post-meeting search procedures would include the offensive searches---it being unclear what Hatim experienced after his teleconference. The attorney thus said he would continue to seek meetings with the client to ascertain whether the JDG has altered its policy, with regard to pre- and post-meeting searches. Though Livingston added that, if intrusive search protocols continued, he might not be able to prepare for a December court session.

The upshot?  There wasn't much of one. Chief Judge Lamberth ordered the parties to submit a status report about compliance with upcoming court deadlines, and a proposed scheduling order, within 90 days.