Updated at 2:34 p.m.
Update: The D.C. Circuit this afternoon granted the government's emergency motion for a stay. The order puts on hold a ruling blocking groin searches of Guantanamo Bay detainees.
The U.S. Justice Department will challenge a court order barring officials at the Guantanamo Bay detention facility from administering invasive groin searches of detainees before they can meet or speak with their lawyers.
The government today filed a notice in the U.S. Court of Appeals for the D.C. Circuit challenging the trial court order. Yesterday, DOJ lawyers asked U.S. District Senior Judge Royce Lamberth to stay his July 11 order as the government pursues the appeal. In the D.C. Circuit, the government today asked for an administrative stay, which would temporarily block Lamberth’s order.
DOJ lawyers said in their court papers Tuesday that compliance with the judge’s order "would have severe consequences to the safe operation of the Guantanamo Bay detention facility."
Counsel for the detainees said they planned to oppose the government's efforts to delay enforcement of the order. "The administration is seeking to continue invasive and religiously improper search procedures that it knows are interfering with the right to counsel and the detainees' access to court," said David Muraskin of McKool Smith.
In his order, Lamberth called the search policy "yet another exaggerated response" by the U.S. Department of Defense, which manages the detention facility. "As petitioners’ counsel argued, the choice between submitting to a search procedure that is religiously and culturally abhorrent or foregoing counsel effectively presents no choice for devout Muslims like petitioners," he said.
The order allowed officials to search detainees before they could meet with counsel or speak with attorneys on the phone. Lamberth limited those searches "to grasping the waistband of the detainee’s trousers and shaking the pants to dislodge any contraband."
General John Kelly, whose command includes overseeing operations at the detention facility, filed a declaration in support of the government's motion to stay explaining that the prohibition on groin searches gave detainees leeway to smuggle contraband. He denied that the new search policy was aimed at limiting detainee access to counsel.
But lawyers for the detainees have argued there was no evidence detainees ever received contraband from their lawyers and that the policy especially didn't make sense for phone calls. Covington & Burling senior counsel S. William Livingston, an attorney for detainees, said during arguments before the court on the new search policy in June that he believed it was punishment for a hunger strike among prisoners at Guantanamo Bay.
Yesterday, lawyers for the detainees filed a motion asking Lamberth to issue an order requiring the government to follow his July 11 ruling or else face contempt sanctions.
A Defense Department spokesman referred a request for comment to the Justice Department, which deferred to the arguments made in the government's written filings.