A federal appeals court in Washington heard arguments today over a body search policy at Guantanamo Bay that lawyers for detainees contend restricts access to counsel.
A trial judge in July blocked the new policy, concluding the groin-area searches were religiously and culturally offensive to detainees and that the new policy was aimed at interfering with detainees' ability to meet with their lawyers. The U.S. Department of Justice today, defending the searches, asked a three-judge appellate panel to reverse that ruling. The government argued the trial judge lacked jurisdiction to block the new policy.
U.S. Department of Justice lawyer Edward Himmelfarb began arguments by explaining that the searches involved full-body frisks of fully clothed detainees. Judge Thomas Griffith jumped in, asking about the government's justification for groin-area searches detainees found "provocative" and "offensive."
Himmelfarb said the change in policy was prompted by security concerns—including the 2012 suicide of a detainee who hoarded medications and the discovery of contraband in other detainees' cells. The D.C. Circuit judges pressed him to explain the connection between those security concerns and the detainees' meetings with counsel, since there was no evidence of attorneys bringing in contraband. Himmelfarb said any movement of detainees posed risks. For instance, he said, detainees could pick up nails or other raw materials on the ground.
Himmelfarb said the searches were akin to frisks of airline passengers who did not want to go through X-ray machines. "It's not as bad as it sounds," he said.
The government contends U.S. District Senior Judge Royce Lamberth didn't have authority to block the search policy because the case involved a challenge to the detainees general "conditions of confinement"—an area Congress previously said was off-limits to courts when it came to individuals held as enemy combatants.
The U.S. Supreme Court previously found courts could hear cases involving detainees' access to the courts, an arena that has included access to counsel. The Justice Department argued the challenge to the groin-area searches didn't fall within that category because the searches weren't limited to meetings with counsel and base officials presented legitimate security reasons for changing the rule.
If Lamberth did have jurisdiction to hear the case, Himmelfarb said today that judges were required to give deference to prison officials, including the military commanders at Guantanamo Bay.
Covington & Burling senior counsel S. William Livingston, arguing for the detainees, said a number of detainees had refused to meet with their lawyers since the new policy went into effect, citing objections to the groin-area searches. Griffith asked about the government's contention that only 25 percent of detainees objected to meetings, and not all of those objections related to the search policy.
Livingston replied that evidence wasn't in the record, and cited anecdotes from other lawyers who already had clients cancel meetings and phone calls. He urged the court to accept Lamberth's findings that the searches were religiously and culturally offensive and that military officials adopted the policy as a way to limit access to counsel—even if they didn't explicitly say so.
Chief Judge Merrick Garland asked Livingston about a 1996 U.S. Supreme Court ruling in Lewis v. Carey finding courts still had to give deference to prison officials even when constitutional rights were at issue. Livingston said he wasn't familiar off-hand with the case, but argued Lamberth did give deference to the government before deciding to strike down the policy.
Judge Karen LeCraft Henderson also heard the case.