Refusing to defer to the government on Guantanamo

In a recent ruling, US district judge Royce C Lamberth barred the government from performing genital searches on Guantanamo detainees as a condition of their meeting with their attorneys. Labelling the searches an “exaggerated response” to security concerns, Lamberth found that the screening procedure interfered with detainees’ ability to seek habeas corpus relief guaranteed to them by the Constitution, and had caused some detainees to stop meeting with their lawyers. 

The ruling has been stayed pending appeal. Even if it is ultimately upheld, the ruling will have little effect on the status of Guantanamo. It will neither set any of the remaining 166 prisoners free nor alter the underlying regime under which they continue to be held. Yet, the court’s opinion is striking in its refusal to defer to the government and its sceptical attitude towards the government’s view of what measures are necessary to preserve security.

Judge Lamberth’s ruling centres on a revision to the Defense Department’s procedures for searching detainees before they are allowed meet with their attorneys. The revision was made in May, following a raid in which guards forced hunger-striking prisoners into lockdown in their individual cells and then claimed to have found improvised weapons in those cells. 

The new procedure, which involves the pressing of a guard’s hand on a detainee’s groin area, replaces a prior search protocol that avoided such direct contact out of respect for detainees’ religious concerns. Under the prior procedure, guards grasped the waistband of a detainee’s trousers, shaking the pants to dislodge any contraband. 

The main question is the reason for the changed screening procedure and, relatedly, how much the court should defer to the government’s explanation for it.  

In defence of the genital search procedure, the government cited a review recommending the change following the suicide last year of Guantanamo detainee Adnan Farhan Abd Latif. It also noted the discovery of contraband in detainees’ cells, including homemade weapons and shanks.

Judges ordinarily defer to the government’s explanations about why particular security measures are needed in a prison or correctional setting. Yet, Judge Lamberth closely scrutinised the government’s reasons, ultimately finding them not merely unpersuasive, but also pre-textual.

Lamberth acknowledged that the investigation performed after Latif’s suicide noted that Latif might have hidden the medications he used to kill himself in his groin area. But the court found this mere possibility a poor basis on which to rest a new policy mandating across the board searches of every detainee every time that detainee meets with his counsel. Additionally, the court concluded that the timing of the new genital search policy – months after the conclusion of the military’s investigation into Latif’s suicide – undermined the government’s argument that the suicide had prompted the change. 

As to the government’s argument about contraband or weapons, Lamberth noted the history of government interference with counsel access at Guantanamo. “The government,” Lamberth observed, “seemingly at every turn, has acted to deny or restrict Guantanamo detainees’ access to counsel.” Rather than viewing the genital search policy as a necessary security measure, Lamberth characterised it as “yet another exaggerated response” that inhibits detainees’ access to counsel.  

Judge Lamberth cited a number of prior instances in which the government had sought to impede such access, including its recent effort to require detainees without pending habeas cases to sign an agreement removing them from judicial protection and subjecting their access to counsel to the Defense Department’s discretion.  The new genital search procedure, he noted, had actively discouraged detainees from communicating with their attorneys, whether in person or by telephone, as detainees have to be transported – and thus searched – for such meetings or calls.  

In invalidating the genital search procedure, Judge Lamberth not only second-guessed the government’s assertions regarding the risk of contraband. He also suggested that the procedure was an intentional effort to discourage detainees from communicating with their lawyers.

The court’s scepticism suggests a mounting frustration with the government’s treatment of Guantanamo detainees and its resistance to enforcement of their legal rights. It also highlights a distrust of the government’s explanation and motives for what it deems to be essential security measures.

While Lamberth’s ruling is limited to the government’s search procedure, it provides a useful perspective on overall US detention policy at Guantanamo. The government has long justified holding prisoners at Guantanamo on the ground that they are members of al-Qaeda or associated forces and would return to hostilities if released. Certainly, that has been true in some cases. But the government’s assessment of the risk that detainees pose has often been exaggerated as well as grossly disproportionate to the length of the time they have been imprisoned. 

Lamberth’s ruling suggests that the government’s asserted basis for continued detention should also be viewed with a healthy dose of scepticism. Regrettably, judges – especially those on the appeals court in Washington, DC, that considers Guantanamo cases – have been too willing to defer to the government regarding whether a particular prisoner should be detained.

The Defense Department recently announced that the government will (finally) be starting the periodic review board process President Obama created more than two years ago to examine whether individual detainees may be released without endangering US security. The board will be staffed by executive branch officials, rather than by judges. But those officials might nonetheless benefit from the broader message of Lamberth’s ruling – to examine critically the government’s claims regarding the risk particular detainees pose and the necessity of continuing to hold them.

Jonathan Hafetz is Associate Professor of Law at Seton Hall University School of Law and the author, most recently, of Habeas Corpus after 9/11: Confronting America’s New Global Detention System. 

Follow him on Twitter: @JonathanHafetz