A Washington federal judge today blocked the U.S. Department of Defense from requiring detainees at Guantanamo Bay to undergo groin searches before meeting or speaking with their attorneys.
Calling the genital-area searches "yet another exaggerated response" by officials who manage the detention facility in Cuba, U.S. District Chief Judge Royce Lamberth found the new policy actively discouraged detainees from communicating with counsel.
"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," Lamberth wrote.
Lamberth, in an accompanying order, said Guantanamo officials could search detainees before and after meetings with counsel, but they were limited "to grasping the waistband of the detainee’s trousers and shaking the pants to dislodge any contraband."
An attorney for the detainees, David Muraskin of McKool Smith, said in an interview that Lamberth's ruling "was a wonderful decision and a powerful decision and one that will really benefit all the detainees and their counsel moving forward." Muraskin said the new search policy had stymied attorney access and that, in light of today's decision, lawyers from his firm were hoping to visit clients on the first available flight.
A spokesman for the U.S. Department of Justice, Andrew Ames, said the government was reviewing the decision. A Defense Department spokesman, Lt. Col. Todd Breasseale, said via email that the department was "aware of Judge Lamberth's ruling and will continue to follow the law. We are reviewing the judge's opinion to determine a way forward."
During arguments on the challenge to the genital search policy on June 5, government counsel asked to seal the hearing before making any statements, so its position wasn't part of the public record. At the time, Lamberth said he was sealing the hearing because the government's responses would include information about the detention facility covered by a protective order.
Covington & Burling senior counsel S. William Livingston, an attorney for detainees, said during arguments that he believed the new search policy was punishment for a hunger strike among prisoners at Guantanamo Bay.
Lamberth rejected the government's argument that the searches were needed to root out contraband. He acknowledged evidence from the government that detention center officials had recently found contraband in detainee living areas, including homemade weapons, but said there was nothing in the record indicating detainees received contraband from their lawyers.
"The motivation for the searches is not to enhance security but to deter counsel access," Lamberth wrote.
Context was also important, Lamberth wrote, adding that the government in the past "seemingly at every turn, has acted to deny or to restrict Guantanamo detainee’s access to counsel." (Lamberth, earlier, lambasted the government over an attempt to change attorney-client communication rules at Guantanamo Bay.)
"The search procedures discourage meetings with counsel and so stand in stark contrast to the President’s insistence on judicial review for every detainee," Lamberth wrote today. "The Court, whose duty it is to call the jailer to account, will not countenance the jailer’s interference with detainees’ access to counsel."