Detention & Guantanamo

Reply Brief Availabile in Hatim v. Obama, Oral Argument Set for Dec. 9

By Raffaela Wakeman
Thursday, November 7, 2013, 9:19 PM

In Hatim v. Obama, a.k.a. the Guantanamo "counsel access case," the government's reply brief has been submitted, and the D.C. Circuit has slated the case for oral argument on Monday, December 9.

We've covered this Guantanamo detainee-related case a bit; it's the one in which, earlier this summer, U.S. District Court Chief Judge Royce Lamberth had partially invalidated some newly-minted GTMO detainee search procedures. Imposed before and after a detainee's in-person meetings and telephone conferences with anyone not affiliated with JTF-GTMO, the most offensive of these involved genital- area searches.  But Judge Lamberth also nixed rules regarding meeting locations and the methods of transportation to and from those meetings.

In its reply, the government reiterates the view presented in its opening brief: that under the Military Commissions Act of 2006, §2241(e)( 2), the federal courts are barred from hearing cases related to “any aspect of the detention, transfer, treatment, trial, or conditions of confinement” for those detainees held as enemy combatants. And here, the government says, the policy falls squarely within the foregoing language.  The district court's threshold conclusion---that had jurisdiction over the case---was incorrect.

But should the D.C. Circuit find for the detainee on the jurisdictional question, the government argues that Turner v. Safley's deferential standard of review for prison security procedures should apply to GTMO policies. (The government seems to suggest that an even more deferential standard might be appropriate, in the military detention context.) The military's assessment of security conditions, and subsequent policy decisions about ameliorating security concerns, should receive deference from the courts, just as prison policies, crafted to implement penological interests, receive deference. And clearly, the government says, the district court did not give due regard to GTMO meeting rules in place here.

The district court also went too far, according to the government, when it questioned the military's rationale for imposing the more stringent procedures, assessed the military's announced purpose as merely a pretext, and concluded that its real goal was to limit the detainees' access to counsel. This line of reasoning makes little sense to the Department of Justice's lawyers: all detainees, in all non-JTF-GTMO meetings, were subjected to the  same procedures, including detainees whose habeas petitions had been rejected, and who met with people other than their lawyers.

Add to this the declarations to the district court of Col. John Bogdan, the Joint Detention Group Commander who devised the challenged procedures; and of Gen. John F. Kelly, Commander of SOUTHCOM.  The latter, writes the government:

  made clear that "at no time" during the adoption of the new procedures "was the idea of limiting detainees' access to legal counsel   considered or even discussed, and certainly not as a reason for adopting the standard search procedure or any other decision     made regarding the secure operation of the detention facilities at Guantanamo."

The government offers this case as an example of the problems inherent with judicial review of security procedures: the district court didn't actually explain how government actions raised by the detainees demonstrated that Col. Bogdan's announced rationale was insincere. The "evidence" that detainees tout to support their case, to the government, is anecdotal and speculative, and does not overcome the weight of the Bodgan and Kelly declarations.

Wrapping up its written arguments, the government takes particular issue with the detainees' coloring of Col. Bogdan:

While counsel for the detainees may find numerous military precautions to be "fanciful," Br. 37, and "preposterous," Col. Bogdan's statement does not require one to conclude that al-Qaeda had an "ocean-going navy," any more than one would have had to conclude that al-Qaeda had an air force prior to September 11, 2001. Col. Bogdan's statement was not limited to al-Qaeda, a conventional attack by ground forces on Guantanamo, or direct harm resulting from release of the information alone. Col. Bogdan's job requires him to consider potential security threats from any quarter (both within and outside of the facility), and to consider whether revealing the specifics of internal security procedures may enable enemies (perhaps using other information) to exploit vulnerabilities in those procedures. Counsel may disagree with that assessment, but a gratuitous and flippant attack on the military judgment of a distinguished 29-year Army veteran with combat experience is entirely inappropriate.

Oral argument on December 9 will be before Circuit Judges Merrick B. Garland, Karen LeCraft Henderson and Thomas B. Griffith.