Detention & Guantanamo

Oral Argument Recap: The Counsel Access Case

By Raffaela Wakeman
Monday, December 9, 2013, 9:46 PM

The snow-drizzle may have slowed down the first two branches of government and every nonprofit in town on Monday morning, but the judiciary didn't budge much: oral argument this morning in the appeal of Hatim v. Obama, otherwise known as the Counsel Access Case, regarding the revised detainee search policies at Guantanamo, goes on as originally scheduled. You can catch the audio here.

Arguing first, and on behalf of the government, is Edward Himmelfarb. He describes the search policy in question: genital-area searches of detainees before and after meetings with non-JTF GTMO people. Judge Thomas Griffith jumps in quickly, finding the attorney's description of the procedures to be a bit too benign. The procedure is offensive, in fact, says the judge. The detainees are fully clothed throughout the search, Himmelfarb points out in response. The Department of Justice attorney compares the procedure to what you go through should you opt not to walk through the body scanners at an airport. So it's not so bad. An obvious point not acknowledged verbally in the argument but heavy in the air: the detainees can't opt for the body scanning machine instead of the frisk.

From there the government attorney and the judges, led by Judge Griffith, go back and forth on the justifications for the searches, and the effect of the searches on access to counsel both before and after the new policy was instituted. The data isn't entirely clear on this point: the total figure for this year of "scheduled" and "arranged" visits between detainees and non-JTF GTMO-ers is in the range of 500-600. About 25 percent of detainees are refusing to meet with outsiders, reports Himmelfarb. Judge Karen LeCraft Henderson inquires after the fruits of these more intrusive searches: has contraband been collected? Himmelfarb doesn't answer that question, reflecting instead on the contraband captured when Camp Six was transitioned from communal housing to solitary cells.

Having laid out the general facts as the government sees them, he then reiterates his side's views on the jurisdictional question: there is none. This is a case about conditions of confinement, he argues, and Congress stripped jurisdiction over such suits. The trouble here is that habeas jurisdiction remains under Boumediene, so the question is whether a case is really a conditions case or whether it's actually about access to habeas. Chief Judge Merrick Garland brings up the case of Johnson v. Avery as one contrary to the government's point of view: why, in that case, was passing typewriters and law books to fellow inmates covered by habeas corpus, while access to an actual attorney here is not? Himmelfarb answers that he doesn't see these searches as presenting a de facto barrier to accessing counsel. The attorney and judge go back and forth a bit on what might be deemed an "obstruction" of habeas as delineated by Johnson, leading the judge to wonder aloud if the jurisdictional question here is too mixed in with the merits. This may support the view that jurisdiction should be granted in this case. A brief bit about Kiyemba's application, leading to Judge Griffith's suggesting that the court look to the law of habeas and conditions of confinement before Boumediene.

The court turns to the merits and Judge Garland has a hypothetical: suppose, Col. Bogdan publicly announced that his motive for adopting the new procedures was specifically to obstruct access to counsel. Obviously, the government attorney concedes, that is not a good case, and he attempts to bypass the court's question, but Judge Garland pushes back for a response. He's trying to see whether motive can ever be an important factor in assessing a step like the one Bogdan took. Finally, Himmelfarb opts to answer: under Turner,  he argues, this would still require deference to the detention facility judgment.

What if this was an access to counsel, not conditions of confinement case, inquires Judge Griffith; what's the rule we apply? Himmelfarb suggests only a policy imposing a severe obstruction would require overturning, suggesting once more that the court look to Turner for guidance. The court wraps up its longer-than-allotted inquiry of the government, and shifts gears.

Then rises S. William Livingston, representing the detainee-appellee. The attorney reminds the court of the status of Hatim's habeas case: it's on remand, which has been stayed because Hatim refuses to attend meetings with his attorney. Livingston notes that the data regarding "arranged" and "scheduled" meetings are a bit misleading: he himself has had meetings "arranged" with Hatim, which have not come to fruition because of Hatim's refusal to undergo these abhorrent search procedures. It's impossible to know for sure how many meetings have been refused as a result of this policy, clearly, and Livingston has some illustrative data to offer, too: attorney David Remes, seated beside him, had 10 meetings "scheduled" on a recent trip to Guantanamo. Five of those detainees refused. Another attorney had five meetings "scheduled," all but two of which were refused by the detainees. That data, to the attorney, speaks volumes of the impact of the genital-area searches on detainee-counsel meetings.

Judge Griffith asks why the district court didn't address whether Lewis v. Casey, a 1996 Supreme Court case applying the Turner framework, requires the application of Turner's framework here. Livingston doesn't believe that Turner is to be applied here at all and, when prompted, he offers affirmative situations: typical prison conditions, things that affect First Amendment rights, and so forth. But, their objection is religious-based, right, confirms Judge Garland? Isn't that a First Amendment issue, thus requiring us to apply the Turner factors here, anyways? Livingston stands his ground on the inapplicability of Turner, believing the issue here to be about the fundamental right to counsel rather than merely a religious freedom issue. To this, Judge Griffith warns that this would leave the court without any objective criteria or standard to apply. If we're not in Turner world, where exactly are we?

Judge Griffith shifts gears, describing Judge Lamberth's opinion as "micromanaging" the staffing decisions at Camp Echo, at least as they pertain to detainee-counsel meetings. Quite the opposite, Livingston says: Judge Lamberth declined to micromanage there, ruling only that in the limited circumstances in which a detainee was too sick to travel was a meeting with counsel required in Camp Six.

Livingston jumps at the opportunity to bring the conversation back to the genital-area searches. The attorneys are cleared personnel, so clearly the detainees aren't getting the contraband from us. Why, then are the searches required before and after meeting with us? He sees only one answer, of course: JTF-GTMO doesn't want detainees meeting with lawyers. Judge Griffith offers one potential source of contraband: items picked up on the way to meetings, and certainly doesn't question habeas counsel's following of the rules.

On the topic of contraband, Livingston has a bit more to say: he argues that the goodies swept up in the June raid actually were not all that serious as contraband goes---a claim against which Judge Garland pushes back. And Adnan Latif's suicide by drug overdose, he notes, was facilitated chiefly by doctors, not lawyers. So there really is not reason to do this sort of search on lawyer visits.

Before he sits down, Livingston fields a Hatim-related query or two from Judge Henderson: up until the policies changed, Hatim was a very compliant client, he argues, attending meetings and participating as much as possible in his habeas case. And what of the search the lawyers themselves undergo to meet with their clients, Judge Henderson inquires? Well, it ain't no strip search, but it's more substantial than we go through to attend oral arguments at the D.C. Circuit, Livingston replies.

The court seems to take issue with the detainee attorney's (and Judge Lamberth's) coloring of the motives of Col. Bogdan, and gives the attorney some time to address them. After some brief remarks, pertaining to the connection between the policy changes at GTMO and Col. Bogdan's ascension at the facility, Livingston wraps up, and sits down.

As the government attorney rises for his rebuttal, Judge Garland asks if Judge Lamberth's finding of motive was clearly erroneous, the standard of review required here. Livingston had argued that Judge Lamberth's finding---that the new policy was adopted to interfere with counsel access---was not clearly erroneous and that the government had not contended that it was. Himmelfarb, however, questions whether Lamberth's "findings" were really a "fact finding" at all; to the attorney, it was an interpretation of facts, followed by some inferences that aren't entirely connected to Col. Bogdan's motives. The government's security "theory" here, says Himmelfarb, is that detainees can pick up things---nails, popsicle sticks, and the like---off the ground on the way to a meeting with counsel or non-JTF-GTMO-ers. A question or two regarding the logistics of transporting detainees to and from their cells, which Himmelfarb seizes on to criticize Judge Lamberth's findings related to the types of vans used to transport detainees, as well as the location of detainee-counsel meetings.

With that, the government attorney says he's through, and the judges return to their chambers.