In Re: Guantanamo Bay Detainee Continued Access to Counsel

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
IN RE GUANTANAMO BAY DETAINEE ) Misc. No. 12-mc-398 (RCL)
LITIGATION )
__________________________________________)
)
SAEED MOHAMMED SALEH HATIM, )
et al., )
Petitioners )
v. ) Civil No. 05-cv-1429 (RCL)
)
BARACK H. OBAMA, et al. )
)
Respondents )
__________________________________________)
)
FADHEL HUSSEIN SALEH HENTIF, )
et al., )
Petitioners )
v. ) Civil No. 06-cv-1766 (RCL)
)
BARACK H. OBAMA, et al. )
)
Respondents )
__________________________________________)
)
ABDURRAHMAN ABDALLAH ALI )
MAHMOUD AL SHUBATI, et al., )
Petitioners )
v. ) Civil No. 07-cv-2338 (RCL)
)
BARACK H. OBAMA, et al. )
)
Respondents )
__________________________________________)
MEMORANDUM OPINION
I. INTRODUCTION
On May 23, 2013, President Obama promised, concerning detainees held at Guantanamo
Bay, that “[w]here appropriate, we will bring terrorists to justice in our courts and our military
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justice system. And we will insist that judicial review be available for every detainee.” Remarks
by the President at the National Defense University (May 23, 2013) (transcript available at
http://www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-national-defense-
university). This matter concerns whether the President’s insistence on judicial review may be
squared with the actions of his commanders in charge of the military prison at Guantanamo Bay.
Currently, it cannot.
Petitioners are detainees at Guantanamo Bay who are in the process of seeking habeas
corpus relief and whose access to counsel is governed by this Court’s 2008 Protective Order.
Petitioners allege that the Joint Detention Group (“JDG”), the group responsible for detention
operations within Joint Task Force-Guantanamo (“JTF-GTMO”), has instituted new search and
procedures that impair petitioners’ access to legal counsel.
The petitioners’ unique circumstances render this case no ordinary challenge to prison
regulations: At its heart, this case is about petitioners’ ability to invoke the writ of habeas corpus
through access to the Court and access to counsel.
Upon consideration of petitioners’ Motions [37 and 38], the government’s Opposition
[42], petitioners’ replies [44 and 45], the arguments presented at this Court’s open and sealed
hearings held June 5, 2013, the entire record herein, the applicable law, and for the reasons set
forth below, the Court finds the JDG’s new procedures invalid as they pertain to access to
counsel and will GRANT petitioners’ motions in part and DENY petitioners’ motions in part.
II. BACKGROUND
A. Procedural Background
Before the Court is an Emergency Motion [37] to Enforce the Right of Access to Counsel
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filed by petitioners Abdurrahman Abdallah Ali Mahmoud al Shubati (ISN 2241) and Fadhel
Hussein Saleh Hentif (ISN 259). Emergency Mot. to Enforce the Right of Access to Counsel 1,
May 22, 2013, ECF No. 37 (“Hentif & Al Shubati Mot.”). Also before the Court is an
Emergency Motion [38] Concerning Access to Counsel filed by petitioner Saeed Mohammed
Saleh Hatim (ISN 255) on his own behalf and on behalf of several other Guantanamo detainees.
Emergency Mot. Concerning Access to Counsel 1–2, May 22, 2013, ECF No. 38 (“Hatim
Mot.”). All the petitioners request that this Court order the government to discontinue the use of
certain procedures that petitioners allege inhibit their access to legal counsel. Specifically,
petitioners request the Court to order (1) that they may meet with counsel in person or by phone
without being subject to the new search protocol instituted by the JDG, (2) that they may meet
with counsel in person or by phone within their housing camps, and (3) that the government may
not transport detainees within the detention facility for attorney meetings or phone calls using
new vans that petitioners contend force them into painful stress positions.
Petitioners are at different stages in their respective habeas cases before the Court. Al
Shubati originally filed a petition for a writ of habeas corpus on December 31, 2007. See Pet.
For Writ of Habeas Corpus, Al Shubati v. Obama, No. 07-CV-2338 (UNA) (D.D.C. Dec. 31,
2007), ECF No. 1. On March 11, 2013, this Court dismissed al Shubati’s petition without
prejudice at petitioner’s and the government’s joint request. See Stipulation and Order
Dismissing Pet., Al Shubati v. Obama, No. 07-CV-2338 (UNA) (D.D.C. Mar. 11, 2013), ECF
No. 261. Hentif filed his petition for habeas corpus on October 16, 2006. See Pet. For Writ of
Habeas Corpus, Hentif v. Obama, No. 06-CV-1766 (HKK) (D.D.C. Oct. 16, 2006), ECF No. 1.
The Court, Judge Henry Kennedy presiding, denied his petition on August 1, 2011. See Mem.
1
“ISN” is the acronym for “Internment Serial Number,” and each detainee currently housed at Guantanamo Bay has
been assigned an ISN. Bostan v. Obama, 821 F. Supp. 2d 80, 82 n.1 (D.D.C. 2011) (citing Al-Harbi v. Obama,
Civil Action No. 05–2479(HHK), 2010 WL 2398883, at *3 n.2 (D.D.C. May 13, 2010)).
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Op., Hentif v. Obama, No. 06-CV-1766 (HKK) (D.D.C. Aug. 1, 2011), ECF No. 281. Hentif’s
appeal of the dismissal of his petition is currently before the D.C. Circuit. See Notice of Appeal,
Hentif v. Obama, No. 06-CV-1766 (RCL) (D.D.C. Oct. 8, 2012), ECF No. 292. Hatim filed his
petition for habeas corpus on July 20, 2005. See Pet. For Writ of Habeas Corpus, Hatim v.
Obama, No. 05-CV-1429 (RCL) (D.D.C. Jul. 20, 2005), ECF No. 1. The Court, Judge Ricardo
Urbina presiding, granted his petition for a writ of habeas corpus on December 15, 2009. See
Order, Hatim v. Obama, No. 05-CV-1429 (RCL) (D.D.C. Dec. 15, 2009), ECF No. 334. The
D.C. Circuit vacated Judge Urbina’s order on February 15, 2011 and remanded the case for
further proceedings. Hatim v. Gates, 632 F.3d 720, 721 (D.C. Cir. 2011) (per curiam). Hatim’s
case was subsequently reassigned due to Judge Urbina’s retirement, and this Court entered a
scheduling order for Hatim’s petition for habeas corpus after a classified hearing on May 3,
2013. See Order, Hatim v. Obama, No. 05-CV-1429 (RCL) (D.D.C. Dec. 15, 2009), ECF No.
415.
B. Factual Background
Petitioners are housed within two separate “camps” within the Guantanamo detention
facility. Resp’t’s Opp’n to Pet’rs’ Emergency Mots. Concerning Access to Counsel 6, June 3,
2013, ECF No. 42 (“Opp’n”). These camps—known as Camps 5 and 6—are modeled after, and
comparable to, maximum security prisons in the United States. Opp’n, Ex. 1, at ¶¶ 10, 14, June
3, 2013, ECF No. 42 (“Bogdan Decl.”). Previously, meetings between petitioners and habeas
counsel took place in Camps 5 and 6, Hatim Mot. Ex. A, at ¶ 5, May 22, 2013, ECF No. 38-1,
though the government contends that attorney–client meetings have not taken place in Camps 5
and 6 for some time. Bogdan Decl. ¶¶ 9, 13.
Currently, to meet with counsel or speak with counsel by phone, petitioners must travel
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from their housing camp to other buildings—known as Camps Delta and Echo—located nearby
within the Guantanamo detention facility. Id. ¶ 22. Petitioners are transported to Camp Delta for
all phone calls with counsel and to Camp Echo for all in-person meetings with counsel. Id. ¶¶ 5,
8. Camps Delta and Echo contain dedicated facilities for conducting detainee phone calls and
meetings. For example, Camp Echo has specialized facilities to screen visitors, including
attorneys, for contraband before they meet with detainees. Id. ¶ 6. Moreover, Camp Echo has a
centralized facility from which guards may visually monitor attorney–client meetings remotely,
meaning guards need not sit outside the meeting room for the duration of the detainee’s meeting
with counsel. Id. Similarly, Camp Delta has facilities “specifically designed and equipped for
telecom operations.” Id. ¶ 8.
Camps 5 and 6, by contrast, lack dedicated facilities for phone calls. Id. ¶¶ 8–9. With
respect to attorney–client meetings, Camp 6 at present has only two small rooms to
accommodate such meetings, though Col. Bogdan, commander of the JDG, directed in
September 2012 that those rooms would no longer be used for meetings between detainees and
any non-JTF-GTMO personnel. Id. ¶¶ 13–16. In his sworn declaration, Col. Bogdan stated that
Camp 5 has no rooms for attorney–client meetings. Id. ¶ 11. Nevertheless, according to a
review of the Guantanamo detention facility prepared by Adm. Walsh in 2009, Camp 5 had “a
climate controlled meeting room for legal representation.” Review of Department Compliance
with President’s Executive Order on Detainee Conditions of Confinement 11 (“Walsh Report”).
It is unclear whether Col. Bogdan has since restricted the use of this room, as in Camp 6, or
whether JTF-GTMO has repurposed the room, though what purpose could be greater than
counsel access this Court cannot say. For security reasons, attorneys cannot meet with detainees
on the cell blocks or within detainee cells in the housing camps. See Bogdan Decl. ¶ 11. As a
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result, detainees must leave their cells and travel to Camps Delta and Echo for phone calls and
attorney–client meetings.
The process of transporting detainees from their housing camps to Camps Delta and Echo
requires that they be searched and then transported by van to the relevant camp. Id. ¶¶ 17–22.
Previously, the search protocol in effect for detainees at GTMO did not allow guards to frisk the
area between a detainee’s waist and mid-thigh except with authorization from the JDG
Commander. Id. ¶ 17; Walsh Report 25. Instead, guards used a modified search procedure
whereby a guard would grasp the waistband of a detainee’s trousers and shake the detainee’s
pants in order to dislodge any contraband. Bogdan Decl. ¶ 17; Walsh Report 25. The purpose of
this modified search procedure was “to avoid actions that could be construed as disrespectful” of
detainees’ religious or cultural sensitivities. Walsh Report 26. The use of the modified
procedures represented a considered policy judgment on the part of the former JDG
commanders: The commanders recognized that the modified search procedures “carrie[d] a level
of risk,” but they “accepted that risk out of an elevated respect for the religious concerns of the
detainees.” Id.
On June 7, 2012, command of the JDG passed to Col. John V. Bogdan. Bogdan Decl. ¶
1. On May 3, 2013, JDG revised its search procedures for detainees to comport with the
standard army search procedure. Id. ¶ 18. This standard procedure includes frisking and
wanding of the detainee’s groin area. Id. ¶ 20. As before, the search involves the guard grasping
the detainee’s waistband and shaking it vigorously to dislodge contraband. Id. The new search
protocol, however, adds several additional elements: First, the guard gathers and crushes the
fabric of the detainee’s pants pockets to detect any objects in the pockets. Id. Second, the guard
will search the detainee’s groin area “by placing the guard’s hand as a wedge between the
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[detainee’s] scrotum and thigh . . . and using [a] flat hand to press against the groin to detect
anything foreign attached to the body.” Id. Third, the guard uses a flat hand to frisk the
detainee’s buttocks to ensure no contraband is hidden there. Id. Fourth, “a hand-held ‘wand’
metal detector . . . is passed over the [detainee’s] body.” Id. ¶ 21. The wand search includes the
detainee’s groin and buttocks area, and guards hold the wand about one to two inches from the
detainee’s body while conducting the wand search. Id.
Under the JDG’s standard procedure, detainees are searched whenever (1) they are
moved to a facility external to their housing camp or (2) they meet with any non-JTF-GTMO
personnel. Id. ¶ 19. According to Col. Bogdan, all detainee searches are conducted twice—once
before leaving the housing camp or before a meeting with non-JTF-GTMO personnel and a
second time prior to returning to the housing camp or after the meeting. Id. However, during the
sealed hearing held on June 5, 2013, counsel for petitioner Al-Mithali stated that detainees are
actually searched four times—once prior to leaving their cells, once upon arriving at the external
facility or meeting room, once prior to leaving the external facility or meeting room, and once
more upon returning to their cells. Sealed Hr’g Tr. 39, June 5, 2013. The JDG’s standard
procedure requires searching detainees for all movements or meetings, including attorney
meetings, phone calls with attorneys or family members, or medical appointments. Bogdan
Decl. ¶ 19.
For phone calls or attorney–client meetings, detainees must travel outside of Camps 5 and
6 to Camps Delta and Echo. Id. ¶ 21. The JDG transports detainees from Camps 5 and 6 to
Camps Delta and Echo by van. Id. While traveling in the vans, detainees are restrained
following standard military procedure using a 5-point fabric seatbelt harness. Id. On April 1,
2013, the JDG introduced several new vans as part of a routine equipment upgrade and to
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address detainee complaints about a lack of air conditioning in the vans. Id. The new vans
include larger air ducts to improve air conditioning, but lower ceilings. Id. Petitioners contend
that, as a result, the lower ceilings in the vans force detainees to sit in crouched and painful stress
positions for the duration of the van ride. Hatim Mot. 3; Hatim Mot. Ex. A ¶¶ 29–34; Hatim
Mot. Ex. G ¶ 9.
C. Legal Background
In a litany of rulings, this Court and the Supreme Court have affirmed that the federal
courts are open to Guantanamo detainees who wish to prove that their indefinite detentions are
illegal. In 2004, the Supreme Court rejected the government’s argument that the federal courts
had no jurisdiction to hear detainee habeas petitions. Rasul v. Bush, 542 U.S. 466, 484 (2004).
Congress then twice amended the federal habeas statute, 28 U.S.C. § 2241, in an effort to
overturn the Supreme Court’s ruling. First, Congress passed the Detainee Treatment Act of 2005
(DTA), Pub. L. No. 109-148, 119 Stat. 2680 (2005), but the Supreme Court held that the
provision of the DTA depriving courts of jurisdiction over detainee habeas petitions did not
apply to cases pending when the DTA was enacted. Hamdan v. Rumsfeld, 548 U.S. 557, 575–78
(2006). Second, Congress passed the Military Commissions Act of 2006 (MCA), Pub. L. No.
109-366, 120 Stat. 2600 (2006) (codified in part at 28 U.S.C. § 2241 & note), but the Supreme
Court declared that detainees “are entitled to the privilege of habeas corpus to challenge the
legality of their detention.” Boumediene v. Bush, 553 U.S. 723, 771 (2008). The Supreme Court
further invalidated the provision of the MCA that stripped courts of jurisdiction to hear habeas
petitions from detainees. Id. at 792. This Court and the Supreme Court also held that
Guantanamo detainees have a concomitant right to the assistance of counsel. Hamdi v.
Rumsfeld, 542 U.S. 507, 539 (2004); Al Odah v. United States, 346 F. Supp. 2d 1, 5 (D.D.C.
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2004).
These rulings raised significant questions about counsels’ access to detainees and
classified information. This Court first began to address this problem in Al Odah, where Judge
Kollar-Kotelly found that the Court had power “to fashion procedures by analogy to existing
procedures, in aid of the Court’s jurisdiction and in order to develop a factual record as necessary
for the Court to make a decision on the merits of” detainee habeas claims. 346 F. Supp. 2d at 6;
see also Harris v. Nelson, 394 U.S. 286, 298 (1969) (“[A] district court may, in an appropriate
case, arrange for procedures which will allow development . . . of the facts relevant to disposition
of a habeas corpus petition.”). Using this power, she proposed a framework for detainee counsel
access. Al Odah, 346 F. Supp. 2d at 13–15. The government subsequently moved for a
protective order “to prevent the unauthorized disclosure or dissemination of classified national
security information.” In re Guantanamo Detainee Cases, 344 F. Supp. 2d 174, 175 (D.D.C.
2004). This Court designated Judge Joyce Hens Green to coordinate and manage all
Guantanamo proceedings and rule on common procedural and substantive issues. All then-
pending Guantanamo cases, except those being heard by Judge Richard J. Leon, were transferred
to Judge Green. In November 2004, Judge Green issued an “Amended Protective Order and
Procedures for Counsel Access to Detainees,” which set guidelines and procedures for counsel
access to detainees and to classified information. Judge Green’s protective order was ultimately
a boon for the Court, for the Government, and for detainees as it settled many issues that would
have otherwise, no doubt, required a great deal of litigation.
Judge Green’s protective order stood without objection for four years. In light of the
Boumediene decision in 2008, the members of this Court again determined that a single judge
should rule on common procedural issues to facilitate the expeditious resolution of Guantanamo
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habeas cases. In re Guantanamo Bay Detainee Litig., Miscellaneous No. 08-442 (TFH), Order
[1] at 1–2, July 2, 2012. The Court designated Judge Thomas F. Hogan, like Judge Green, “to
coordinate and manage proceedings in all cases involving petitioners presently detained at
Guantanamo Bay, Cuba.” Id. All then-pending Guantanamo habeas cases, and all such cases
thereafter filed, were transferred to Judge Hogan for case management and coordination.2 Id.Judge Hogan also determined that the Court should issue a new protective order. After
considering the parties’ positions espoused both in written submissions and at a status
conference, Judge Hogan issued a carefully crafted and thorough protective order that contained
procedures for counsel access to detainees and to classified information. In re Guantanamo Bay
Detainee Litig., 577 F. Supp. 2d 143 (D.D.C. 2008) (“Protective Order” or “P.O.”). Judge
Hogan’s protective order was substantially similar to the protective order issued by Judge Green.
This Court recently revisited Judge Hogan’s protective order as it pertained to detainees
without any pending habeas petition before the Court. In re Guantanamo Bay Detainee
Continued Access to Counsel, 892 F. Supp. 2d 8 (D.D.C. 2012). At that time, the government
argued “that the Protective Order cease[d] to control counsel-access in the absence of a pending
or imminent habeas petition” and sought to enter into Memoranda of Understanding (MOUs)
with detainees that would set the terms for counsel access. Id. at 11. The terms of the MOUs
proposed by the government differed substantially from those of Judge Hogan’s Protective Order
and would have hampered both petitioners’ access to counsel and counsels’ access to classified
information. Id. at 13–14. This Court rejected the government’s argument and the proposed
MOUs. Instead, the Court held that Judge Hogan’s protective order governed counsel-access
issues for all petitioners, including those without any pending habeas action. Id. at 28.
2
The Order specifically excluded cases over which Judge Richard Leon presided as well as Hamdan v. Bush, 04-cv-
1519. Order at 2 n.1, In re Guantanamo Bay Detainee Litig., Misc. No. 08-442 (TFH) (July 2, 2008), ECF No. 1.
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III. STANDARD OF REVIEW
The foundation of the Supreme Court’s habeas jurisprudence is that the Great Writ lies at
the core of this nation’s constitutional system and that it is the duty of the courts to remedy
lawless executive detention.
Executive imprisonment has been considered oppressive and lawless since John,
at Runnymede, pledged that no free man should be imprisoned, dispossessed,
outlawed, or exiled save by the judgment of his peers or by the law of the land.
The judges of England developed the writ of habeas corpus largely to preserve
these immunities from executive restraint.
Rasul, 542 U.S. at 474 (citing Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 218–
219 (1953) (Jackson, J., dissenting)). “The Framers viewed freedom from unlawful restraint as a
fundamental precept of liberty, and they understood the writ of habeas corpus as a vital
instrument to secure that freedom.” Boumediene, 553 U.S. at 739; see also Harris, 394 U.S. at290–91 (noting that the Great Writ serves as the “fundamental instrument for safeguarding
individual freedom against arbitrary and lawless state action.”). Moreover, the separation of
powers also points to the fundamental importance of the Great Writ. See Boumediene, 553 U.S.
at 742 (noting that the separation of powers “serves not only to make Government accountable
but also to secure individual liberty” (citing Loving v. United States, 517 U.S. 748, 756 (1996))).
Indeed, under our Constitution it is the Suspension Clause that “protects the rights of the
detained by affirming the duty and authority of the Judiciary to call the jailer to account.” Id. at
745 (citing Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)).
The duty imposed by the Great Writ requires the Judiciary to ensure that access to the
courts is “adequate, effective, and meaningful.” Bounds v. Smith, 430 U.S. 817, 822 (1977); see
also Harris, 394 U.S. at 292. Practically, this means “that the privilege of habeas corpus entitles
the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the
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erroneous application or interpretation’ of relevant law.” Boumediene, 553 U.S. at 779 (quoting
INS v. St. Cyr, 533 U.S. 289, 302 (2001)) (emphasis added).
In the context of Guantanamo Bay habeas litigation, “access to the Court means nothing
without access to counsel.” Al-Joudi v. Bush, 406 F. Supp. 2d 13, 22 (D.D.C. 2005). They are
inseparable concepts and must run together.
To say that Petitioners’ ability to investigate the circumstances surrounding their
capture and detention is “seriously impaired” is an understatement. The
circumstances of their confinement render their ability to investigate nonexistent.
Furthermore, it is simply impossible to expect Petitioners to grapple with the
complexities of a foreign legal system and present their claims to this Court
without legal representation. Petitioners face an obvious language barrier, have
no access to a law library, and almost certainly lack a working knowledge of the
American legal system. Finally, this Court’s ability to give Petitioners’ claims the
“careful consideration and plenary processing” which is their due would be
stymied were Petitioners to proceed unrepresented by counsel.
Al Odah, 346 F. Supp. 2d at 9.
Cognizant of both its duty to enforce the Writ and the context of Guantanamo habeas
litigation generally, the Court now turns to the petitioners’ emergency motions for counsel
access.
IV. JURISDICTION
The government contends that this Court lacks jurisdiction to address petitioners’
emergency motions. “Federal courts are courts of limited subject-matter jurisdiction. A federal
court created by Congress pursuant to Article III of the Constitution has the power to decide only
those cases over which Congress grants jurisdiction.” Al-Zahrani v. Rodriguez, 669 F.3d 315,
317 (D.C. Cir. 2012) (citing Micei Int’l v. Dep’t of Commerce, 613 F.3d 1147, 1151 (D.C. Cir.
2010)).
As amended by Section 7(a) of the Military Commissions Act of 2006, the federal habeas
statute provides, in relevant part,
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(1) No court, justice, or judge shall have jurisdiction to hear or consider an
application for a writ of habeas corpus filed by or on behalf of an alien detained
by the United States who has been determined by the United States to have been
properly detained as an enemy combatant or is awaiting such determination.
(2) [N]o court, justice, or judge shall have jurisdiction to hear or consider any
other action against the United States or its agents relating to any aspect of the
detention, transfer, treatment, trial, or conditions of confinement of an alien who
is or was detained by the United States and has been determined by the United
States to have been properly detained as an enemy combatant or is awaiting such
determination.
28 U.S.C. § 2241(e)(1)–(2) (emphasis added). However, the Supreme Court invalidated §
2241(e)(1) as an unconstitutional suspension of the writ, and thus this Court has jurisdiction over
petitions for writs of habeas corpus. Boumediene v. Bush, 553 U.S. 723, 792 (2008).
Nevertheless, § 2241(e)(2) remains a valid bar to this Court’s jurisdiction. See Al-Zahrani, 669
F.3d at 319 (upholding “the continuing applicability of the [§ 2241(e)(2)] bar to our jurisdiction
over ‘treatment’ cases.”). Thus, were this case an “other action”—that is, an action other than a
petition for habeas corpus—relating to the “treatment . . . or conditions of confinement” of the
Guantanamo detainees, this Court would have to dismiss for lack of jurisdiction.
The instant litigation, however, is not a general challenge to petitioners’ treatment or
conditions of confinement. Instead, it is a narrow challenge to alleged government interference
to petitioners’ access to counsel that prevents them from prosecuting habeas cases before this
Court. Petitioners’ challenge falls squarely within the Court’s jurisdiction. The Supreme Court
implicitly recognized that counsel access issues relating to habeas cases fall within the district
court’s jurisdiction over habeas petitions. In Boumediene, the Supreme Court explained that it
“ma[de] no attempt to anticipate all of the evidentiary and access-to-counsel issues that will arise
during the course of the detainees’ habeas corpus proceedings. . . . These and . . . other
remaining questions are within the expertise and competence of the District Court to address in
the first instance.” 553 U.S. at 796. Logically, the Supreme Court would not refer counsel-
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access issues to the expertise of the District Court if it lacked jurisdiction to consider the issues
in the first place.
Indeed, all the cases the government cites where this Court or the D.C. Circuit has
concluded it lacked jurisdiction under § 2241(e)(2) are inapposite. The present controversy is
neither a request for a mattress and a blanket, see In re Guantanamo Bay Detainee Litig., 577 F.
Supp. 2d 312 (D.D.C. 2008), nor a request for transfer to another facility, see Tumani v. Obama,
598 F. Supp. 2d 67 (D.D.C. 2009); Al-Shurfa v. Obama, No. 05-CV-431 (RJL), 2009 WL
1451500 (D.D.C. May 21, 2009); Khadr v. Bush, 587 F. Supp. 2d 225 (D.D.C. 2008); Al-
Ghizzawi v. Bush, No. 05-CV-2378 (JDB), 2008 WL 948337 (D.D.C. Apr. 8, 2008), nor a
request for medical records or changes to medical procedures, see Al Adahi v. Obama, 596 F.
Supp. 2d 111 (D.D.C. 2009); In re Guantanamo Bay Detainee Litig., 577 F. Supp. 2d at 313–14,
nor a tort claim against federal officials, Al-Zahrani, 669 F.3d at 316–17. This action focuses
solely on what rules will govern counsel access for the Guantanamo detainees during their
habeas cases and whether the government, in contravention of Judge Hogan’s protective order
and numerous other rulings, may interfere with detainees’ access to counsel. Of course, it may
not.
The government also argues that petitioners lack standing because they have failed to
show “actual harm” under Lewis v. Casey, 518 U.S. 343 (1996). In Casey, the Supreme Court
found that prisoners could not bring claims alleging interference with their access to the courts
“by establishing that [the] prison’s law library or legal assistance program is subpar in some
theoretical sense.” Casey, 518 U.S. at 351. Instead, the constitutional requirement for standing
meant that prisoners could only bring claims alleging interference with their right of access to the
courts where they could show actual injury. Id. at 349–352. The Court did find, however, that
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an illiterate and non-English-speaking prisoner had established actual injury by showing that he
had been unable to bring his claims. Id. at 356.
The government’s reliance on Casey is misplaced. Quite contrary to the government’s
conclusory statement that petitioners have made no showing of actual harm, Opp’n 19, the record
is replete with examples of “past or imminent official interference with individual [detainees’]
presentation of claims to the courts.” Casey, 518 U.S. at 349. For proof, one need only look to
this Court’s previous opinions concerning counsel access and the numerous government attempts
to interfere with counsel access identified therein. See In re Guantanamo Bay Detainee
Continued Access to Counsel, 892 F. Supp. 2d at 24–26 (collecting cases). Moreover, the
petitioners’ situation is most similar to that of the illiterate and non-English-speaking prisoners
for whom the Supreme Court found there was actual injury in Casey. With respect to detainees
at Guantanamo, as this Court has oft repeated, “access to the Court means nothing without access
to counsel.” Al-Joudi, 406 F. Supp. 2d at 22. “Petitioners are from foreign countries, . . . do not
speak English, and are in all likelihood totally unfamiliar with the United States legal system. As
such they have ‘no alternative form of legal assistance available to them.’” Id. (citing Bounds v.
Smith, 430 U.S. 817, 823 (1977)). Absent aid from counsel, petitioners will be unable to
prosecute their habeas claims. Thus, interference with petitioners’ access to counsel impairs
their access to the courts in a direct and concrete fashion and not “in some theoretical sense.”
Petitioners have shown imminent harm and therefore have standing to bring their claims for
counsel access. Consequently, this court may exercise jurisdiction over those claims.
In concluding that it has jurisdiction over petitioners’ motions, the Court notes that §
2241(e)(2) does remove the Court’s jurisdiction over any action by Guantanamo detainees other
than (1) a petition for habeas corpus or (2) any attendant issues that arise under that petition, such
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as the counsel-access or evidentiary issues that the Supreme Court identified. Thus, the court
would lack jurisdiction to consider any claims by petitioners relating to, for example, their
medical treatment or access to regular mail. Of course, the Protective Order has always operated
within the jurisdictional bounds set out by the Supreme Court in Boumediene and by §
2241(e)(2). See, e.g., P.O. at ¶¶ II.D.12–.13 (setting out in great detail the procedures to be used
for processing detainee legal mail, but noting that any non-legal mail would be processed
according to the military’s standard operating procedures).
V. ANALYSIS
A. The Turner v. Safley Standard is Logically Inapplicable to this Case
The government contends that the new search procedures instituted by Col. Bogdan pass
muster under the deferential standard for prison regulations identified by the Supreme Court in
Turner v. Safley, 482 U.S. 78 (1987). The government’s reliance on the Turner standard is
misplaced, however, as Turner is logically inapplicable to regulations impinging on a detainee’s
right to petition for a writ of habeas corpus.
The logical foundation of the Turner line of cases lies in striking a balance between a
circumscribed constitutional right and the judgment of prison administrators. The Supreme
Court described this reasoning clearly in Bell v. Wolfish, 441 U.S. 520 (1979). There, the Court
laid out four “general principles [to] inform [its] evaluation of the constitutionality of the” prison
regulations at issue. Id. at 545. First, the Court recognized “that convicted prisoners do not
forfeit all constitutional protections by reason of their conviction and confinement.” Id. (citing
Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119, 129 (1977); Meachum v. Fano,
427 U.S. 215, 225 (1976); Wolff v. McDonnell, 418 U.S. 539, 555–56 (1974); Pell v. Procunier,
417 U.S. 817, 822 (1974)). Second, however, “[l]awful incarceration brings about the necessary
16
withdrawal or limitation of many privileges and rights, a retraction justified by the considerations
underlying our penal system.” Id. at 545–46 (quoting Price v. Johnston, 334 U.S. 266, 285
(1948)). Third, the Court noted that maintenance of security and internal order are penological
“goals that may require limitation or retraction of the retained constitutional rights of both
convicted prisoners and pretrial detainees.” Id. at 546. Fourth, the Court acknowledged that
“the problems that arise in the day-to-day operation of a corrections facility are not susceptible of
easy solutions.” Id. at 547. Consequently, courts should accord “wide-ranging deference [to] the
adoption and execution of policies and practices that” prison administrators judge necessary for
preservation of order and security. Id. As the Court further explained, “judicial deference is
accorded not merely because the administrator ordinarily will . . . have a better grasp of his
domain than the reviewing judge, but also because the operation of our correctional facilities is
peculiarly the province of the Executive and Legislative Branches.” Id. at 548 (citing Procunier
v. Martinez, 416 U.S. 396, 405 (1974)).
The logical progression of the Court’s analysis in Bell is clear and simple: Prisoners
retain basic constitutional rights, but those rights may be necessarily limited in the prison
context. Further, the government, acting as prison administrator, may limit prisoners’
constitutional rights to accomplish valid penological objectives. Finally, given the Executive and
Legislative branches’ particular roles and expertise in prison administration, the Judiciary should
give deference to the Executive and Legislature in how they chose to circumscribe prisoners’
rights to achieve legitimate penological ends. Most importantly for this case, the second
principle that the Court identified acts as a logical predicate for the principles that follow: the
Executive or Legislature may limit a prisoner’s rights in order to accomplish valid penological
objectives because those rights are limited or withdrawn in the prison context. Similarly, the
17
court defers to the Executive or Legislature because it has balanced the prisoner’s limited rights
against the valid penological interest according to its prerogatives and expertise. Turner adds to
this analysis by formalizing the deference the Judiciary must show to the Executive and
Legislature into a test, though the analysis and logic underlying the Court’s decision remain the
same. See Turner, 482 U.S. at 84–91.
This logical analysis, however, is inapplicable to the right of habeas corpus itself. The
notion that habeas corpus, like the freedoms of association3 or speech,4 may necessarily be
limited or withdrawn in the penological context is absurd: “the essence of habeas corpus is an
attack by a person in custody upon the legality of that custody, and . . . the traditional function of
the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484
(1973). The right of habeas corpus is neither limited nor withdrawn in the prison context—
indeed it is most valuable as a right to one who is incarcerated. To restrict a detainee’s access to
habeas corpus solely by virtue of his detention would run counter to the writ’s purpose and
would eviscerate the writ.
Moreover, the particular circumstances of the petitioners in this case strengthen, rather
than weaken, the power of the writ. As the Supreme Court recognized in Boumediene, “where[,
as here,] a person is detained by executive order, rather than, say, after being tried and convicted
in a court, the need for collateral review is most pressing. . . . In this context the need for habeas
corpus is more urgent.” 553 U.S. at 783; see also Rasul, 542 U.S. at 474 (“[A]t its historical
core, the writ of habeas corpus has served as a means of reviewing the legality of Executive
3
See, e.g., Overton v. Bazzetta 539 U.S. 126, 131 (2003) (“[F]reedom of association is among the rights least
compatible with incarceration. . . . Some curtailment of that freedom must be expected in the prison context.”
(citing Jones, 433 U.S. at 125–26; Hewitt v. Helms, 459 U.S. 460 (1983)).
4
See, e.g., Bell, 441 U.S. at 550–51 (concluding that a prison rule against receipt of hardback books unless sent
directly from publishers, book clubs, or book stores was reasonable and therefore did not violate inmates’ First
Amendment rights).
18
detention, and it is in that context that its protections have been strongest.” (quoting St. Cyr, 533
U.S. at 301)). Any effort by the Executive or Legislature to limit a detainee’s right to seek
habeas corpus, just as they might limit the detainee’s freedoms of speech or association, would
be antithetical to the purpose of the writ. Indeed, the Constitution forbids suspension of the writ
except in limited circumstances. U.S. Const. art I, § 9, cl. 2 (“The Privilege of the Writ of
Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public
Safety may require it.”). This conflicts with the Court’s logic in Bell and Turner because the
right at issue is not limited in the prison context.
The Supreme Court’s analysis in Bell and Turner cannot apply to petitioners. Since the
right to seek habeas relief is not limited or withdrawn in the prison context, neither may the
Executive or the Legislature circumscribe the petitioners’ right, see id.; Boumediene, 553 U.S. at
798, nor must the court defer to the Executive’s or Legislature’s attempt to do so. Though the
Turner test is inappropriate here, this Court need not define the contours of the proper test
because the new procedures challenged by petitioners would fail even under Turner.
B. The New Search Procedures Fail Under the Turner Standard
As the Supreme Court has noted, “federal courts must take cognizance of the valid
constitutional claims of prison inmates.” Turner, 482 U.S. at 84 (citing Martinez, 416 U.S. at
405). “Prison walls do not form a barrier separating prison inmates from the protections of the
Constitution.” Id. For example, those detained at Guantanamo “may invoke the fundamental
procedural protections of habeas corpus.” Boumediene, 553 U.S. at 798. Because detainees
retain certain constitutional rights like habeas, “[w]hen a prison regulation or practice offends a
fundamental constitutional guarantee, federal courts will discharge their duty to protect
constitutional rights.” Martinez, 416 U.S. at 405–06.
19
Nevertheless, the Court must recognize both the special expertise of the Executive and
Legislature in prison administration and its own limited expertise in that area. “Running a prison
is an inordinately difficult undertaking that requires expertise, planning, and the commitment of
resources, all of which are peculiarly within the province of the legislative and executive
branches of government.” Turner, 482 U.S. at 84–85. The Supreme Court has also identified
prison administration as “a task that has been committed to the responsibility of those branches.”
Id. at 85.
In order to balance the competing considerations between prisoners’ rights and prison
administration, the Supreme Court formulated its test as follows: “when a prison regulation
impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to
legitimate penological interests.” Id. at 89. By contrast, a prison regulation is invalid if it
represents an “exaggerated response” to legitimate penological concerns. Id. at 87. To aid its
analysis, the Supreme Court identified “four factors [that] are relevant in deciding whether a
prison regulation affecting a constitutional right that survives incarceration withstands
constitutional challenge: whether the regulation has a ‘valid, rational connection’ to a legitimate
governmental interest; whether alternative means are open to inmates to exercise the asserted
right; what impact an accommodation of the right would have on guards and inmates and prison
resources; and whether there are ‘ready alternatives’ to the regulation.” Overton v. Bazzetta, 539
U.S. 126, 132 (2003) (quoting and citing Turner, 482 U.S. at 89–91).
Applying the first Turner factor, the Court finds that the new search procedures lack a
“valid, rational connection” to the legitimate government interest—security—put forward to
justify them. As the government correctly asserts, “internal security of detention facilities is a
legitimate government interest.” Block v. Rutherford, 468 U.S. 576, 586 (1984). The
20
government argues that three justifications satisfy the “valid, rational connection” between the
revised search procedures and the government’s legitimate penological interest in security of the
Guantanamo detention facility: First, the old, modified search, i.e. shaking the detainee’s
waistband, is contrary to the military’s standard procedure and increased the risk of inconsistent
searches and decreased the searches’ effectiveness. Second, detainee Adnan Farhan Abd Latif
(ISN 156) was able to commit suicide while in detention, and a subsequent review recommended
changing the search policy in response. Third, the transition of Camp 6 from communal living to
single cell housing revealed contraband, including homemade weapons, shanks, and prohibited
electronic devices. The Court will address each of these justifications in turn.
The first justification, that the modified search used previously was contrary to the
military’s standard procedure, fails. According to Col. Bogdan, since soldiers are not generally
trained in the modified procedure previously used by the JDG, that procedure created a risk that
the searches would be performed inconsistently and would be ineffective. Opp’n 11; Col.
Bogdan Decl. ¶ 17. This justification does not hold water. The modified search procedure had
been in use since “the early years of detention operations at Guantanamo,” or approximately
eight or nine years. Walsh Report 25. The government does not explain how, other than by bald
assertion, soldiers would be unable to follow a search procedure that had been in place for years.
Moreover, American soldiers are intelligent and capable and have proven themselves able to
implement correctly different protocols in different situations. Indeed, the soldiers at
Guantanamo do so already: one standard protocol is used for regular detainee mail and mail to
the International Committee of the Red Cross, while a second protocol is used for legal mail. Id.at 36–37; see also Protective Order ¶¶ II.D.12–.13. This Court’s previous opinion on legal mail
notwithstanding, the soldiers and commanders at Guantanamo have proven themselves capable
21
of navigating the differences between these two systems. Contrary to Col. Bogdan’s
bureaucratic desire for uniformity, every procedure employed at Guantanamo need not follow
the same standard protocol. As petitioners correctly argue, there is no basis in the record to
support the government’s argument that guards performed the old, modified searches
ineffectively or inconsistently. Pet’rs’ Reply 3–4, June 4, 2013, ECF No. 44 (“Hatim Reply”).
The government’s second justification for the new search procedures involves the suicide
of detainee Adnan Farhan Abd Latif. Latif committed suicide in September 2012 by overdosing
on medication that he had hoarded over a short time period. Opp’n 11. The command
investigation performed after Latif’s suicide noted that he may have hidden the medications in
his groin area. Id.; Bogdan Decl. ¶ 18. According to the government, this incident provides a
further “valid, rational connection” to satisfy the first Turner factor. At this Court’s sealed
hearing on June 5, Counsel for petitioners noted, however, that Col. Bogdan’s affidavit nowhere
states that Latif actually hid medications in his groin area, only that the prior search procedure
provided him with the opportunity to do so. Sealed Hr’g Tr. 7; see also Bogdan Decl. ¶ 18. In
response, government counsel only stated that Latif “might” have hoarded medication in his
groin area. Sealed Hr’g Tr. 20.
Petitioners correctly conclude that Latif’s possible opportunity to hoard medication bears
no logical connection to a policy to search the groin area of every detainee every time he is
moved or meets with non-JTF personnel, whether that be medical personnel, representatives
from the International Committee of the Red Cross, or legal counsel. Hatim Reply 4. The
government’s attempts to justify the new procedure on the basis of Latif’s suicide have the patina
of pretext to them. The mere possibility that Latif hoarded medications in his groin area, with
nothing more, will not support the new search policy because the logical connection between the
22
policy and this supposed justification “is so remote as to render the policy arbitrary or irrational.”
Turner, 482 U.S. at 89–90.
Moreover, the government’s actions in regards to the command investigation of Latif’s
suicide belie the suggestion that Latif’s death was a justification for the new search policies.
Latif’s death occurred in September 2012, and the command investigation of his death released
its report in November 2012. Bogdan Decl. ¶ 18. Col. Bogdan and the JDG, however, did not
implement the new search procedures until May 3, 2013. Id. Though Col. Bogdan states that he
“developed a phased approach in December 2012 to gradually” implement the new search
procedure, his statement stands in contrast to his decision to institute the new search procedures
almost immediately upon discovering contraband in the transition of Camp 6 from communal
housing to single cell housing. Id. To the Court’s view, Col. Bogdan’s swiftness in
implementing the new searches in May 2013 shows that linking the new searches to the death of
Latif and the subsequent investigation was merely an afterthought.
The third justification the government offers for the new search policies under the first
Turner factor is the discovery of contraband in Camp 6. According to Col. Bogdan’s statement,
in April 2013, the JDG transitioned Camp 6 from communal living for detainees to keeping
detainees in individual cells. Id. In the course of the transition, the JDG discovered “a number
of contraband items, including homemade weapons, such as shanks, and prohibited electronic
devices.” Id. The presence of contraband or weapons would represent a threat to camp security.
On its face, this justification appears to offer the strongest logical relationship between the new
search procedures and the government’s legitimate interest in security at the Guantanamo
detention facility. Indeed, this Court “understand[s] why [prison administrators] might need to
do an overall search of the prison to be sure there are no shanks” or other improvised weapons.
23
Sealed Hrg. Tr. 22. The Court has heard of similar generalized searches at domestic prisons. Id.(citing the local jail in Washington, D.C. as an example).
When viewed in isolation, as the government has presented it, the presence of contraband
makes the new search procedure appear reasonably related to the government’s legitimate
penological interest in security. The Court, however, must view the new procedure and the
proffered justification in light of the government’s previous actions at Guantanamo. As
petitioners’ counsel correctly noted during this Court’s hearing, “[t]he government is a recidivist
when it comes to denying counsel access.” Sealed Hrg. Tr. 11. The government, seemingly at
every turn, has acted to deny or to restrict Guantanamo detainee’s access to counsel. The
government designated Guantanamo as a “detention facility” rather than as a “corrections
facility” because, under the Navy’s own regulations, those incarcerated at a corrections facility
have unconditional access to their attorneys. See In re Guantanamo Bay Detainee Continued
Access to Counsel, 892 F. Supp. 2d at 17. The government sought to require detainees without
pending habeas petitions to sign memoranda of understanding that would have removed them
from the ambit of the Court’s Protective Order and only allowed access to counsel at the
government’s whim. See id. at 13–14. The government has severely curtailed the number of
flights to Guantanamo. See Order at 4, Al-Zarnouqi v. Obama, No. 06-CV-1767 (RCL) (D.D.C.
May 6, 2013), ECF No. 415. Predictably, given the limited number of commercial flights to
Guantanamo, counsel must now wait in queue for at least two months before they may meet with
their clients. Open Hr’g Tr. 20–21, June 5, 2013; see also Hatim Reply Ex. K ¶¶ 11–12 (noting
that the limited flight schedule—counsel may only fly in on Mondays and out on Fridays—
increases costs since counsel and translators must travel to Guantanamo for a full week). The
government has, in some instances, withheld legal mail from petitioners without notifying the
24
Court or petitioners’ counsel. See Order at 4, Al-Zarnouqi v. Obama, No. 06-CV-1767 (RCL)
(D.D.C. May 6, 2013), ECF No. 415. And this is to say nothing of the multiple instances this
Court has identified where the government sought to inhibit counsel access in individual cases.
See In re Guantanamo Bay Detainee Continued Access to Counsel, 892 F. Supp. 2d at 24–26
(collecting cases). The government’s repeated actions substantially increase the likelihood that
its justification is mere pretext and that the new searches represent an “exaggerated response” to
its legitimate interest in security of the detention facility. Thus, a thorough examination of the
government’s proffered justification is appropriate.
While the Court agrees that the presence of improvised weapons and contraband is
logically related to the need for searches generally, the Court finds the new genital search
procedure to be yet another exaggerated response by the JDG that is presently inhibiting
petitioners’ access to counsel. Since implementation of the new search procedure, multiple
petitioners have foregone, some for the first time, phone calls or meetings with counsel. Hatim
Mot. 4–5; Hatim Mot. Ex. A ¶¶ 13–18; Hatim Mot. Ex. B; Hatim Mot. Ex. C ¶¶ 7–10; Hatim
Mot. Ex. D ¶¶ 7, 11–12; Hatim Mot. Ex. E ¶¶ 3–7; Hatim Mot. Ex. F ¶¶ 4–6; Hatim Reply 7–8;
Hentif & Al Shubati Mot. Ex. A ¶¶ 4–6, 8. This does not represent, as the government argues,
“mere voluntary refusal” on each petitioner’s part. Opp’n 14. Instead, the Court finds that the
new search procedures actively discourage petitioners from taking phone calls or meeting 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. Open Hr’g Tr. 19; Sealed Hr’g Tr. 14–15; Hentif & Al Shubati
Mot. Ex. A ¶¶ 8. The relationship between the searches and petitioners’ choices to refuse phone
calls and counsel meetings is clear and predictable. Indeed, petitioners also find searches of the
25
Quran abhorrent, and many petitioners have chosen to forego having a Quran in their cells rather
than having their Qurans subject to search. Hatim Mot. Ex. A ¶¶ 3, 22, 24–25; see also Charlie
Savage, Officials Describe Chaos at Guantanamo in Weeks Before Raid on Prison, N.Y. Times
(Apr. 16, 2013), http://www.nytimes.com/2013/04/17/us/politics/detainees-hit-guards-in-
weekend-raid-officials-say.html (noting that detainees offered to end the current hunger strike by
giving up their Qurans rather than have them be searched).
That this relationship is so clear and predictable makes it easy for the government to
exploit. Given that detainees are already shackled and under guard whenever they are moved,
Hatim Mot. Ex. A ¶ 5, the added value of the new genital search procedure vis-à-vis the prior
search procedure is reduced. In this context, the court finds searching the genitals of petitioners
up to four times for every phone call or attorney–client meeting—as petitioners have described,
Hatim Mot. Ex. B ¶¶ 7–8, 15; Sealed Hr’g Tr. 39—to be excessive. Searching detainees up to
four times in this manner for every movement, meeting, or phone call belies any legitimate
interest in security given the clear and predictable effects of the new searches. Moreover, as
petitioners note, nothing in the record indicates that detainees have received any contraband from
their attorneys or that detainees have attempted to pass contraband to each other during phone
calls or meetings with attorneys. Hatim Reply 4–5. The motivation for the searches is not to
enhance security but to deter counsel access. Thus, the Court finds the search procedure an
“excessive response” under the first Turner factor.
Turning to the remaining factors identified in Turner, the second factor considers
“whether there are alternative means of exercising the right that remain open to prison inmates.”
Turner, 482 U.S. at 90. Here, the government again argues that it is not inhibiting counsel access
and that it is petitioners who have voluntarily chosen to forego phone calls or meetings with
26
counsel. Opp’n 24. As above, the Court rejects the government’s argument. As petitioners’
counsel noted, the predicable consequences of the government’s actions are “the breaking [and]
severing of attorney–client communication except by letter which is by slow boat.” Open Hrg.
Tr. 19. The Court recognizes that, as petitioners argue, it would be untenable to prepare a habeas
case for trial or appeal where counsel could only contact petitioners by legal mail. Hentif & Al
Shubati Mot. 5. Absent face-to-face meetings and telephone calls, petitioners’ habeas cases will
not go forward. Thus, the new search procedures effectively leave petitioners without alternative
avenues to exercise their right to habeas corpus.
The third Turner factor looks at “the impact [that] accommodation of the asserted
constitutional right will have on guards and other inmates, and on the allocation of prison
resources generally.” Turner, 482 U.S. at 90. Here, the government contends that “[r]everting to
the old search policy . . . would mean restoration of the same security risks to detainees, guards,
and counsel, and the same operational disruptions and difficulties.” Opp’n 24. But, as
petitioners correctly argue, the record presents no connection between the prior search
procedures and any such “disruptions or difficulties.” Indeed, the record does not show that
guards performed searches inconsistently, and the government can show only a possible
connection of the prior search procedures to the death of detainee Latif. Further, given that
detainees are watched and shackled during transport, and that guards may search detainee’s cells
or the detainees themselves at other times, the “ripple effect” of reverting to the prior search
procedure for attorney–client meetings should be minimal.
The fourth Turner factor looks to the “absence” or “existence” of “ready alternatives” to
the challenged regulation. Turner, 482 U.S. at 90. The Supreme Court explained that “the
absence of ready alternatives is evidence of the reasonableness of a prison regulation,” but “the
27
existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but
is an ‘exaggerated response’ to prison concerns.” Id. The petitioners easily satisfy this factor.
As this court counseled in its previous counsel-access opinion, “if it ain’t broke, don’t fix it.” In
re Guantanamo Bay Detainee Continued Access to Counsel, 892 F. Supp. 2d at 16. Given its
many years of use at the Guantanamo detention facility, the old modified search procedure
represents an “obvious, easy,” and proven alternative to the challenged new search procedure.
The government’s assertion that these searches may have led to Latif’s suicide or the presence of
contraband is purely speculative and does not diminish the fact that the prior procedure
represents an easy alternative.
In summary, the Court finds the evidence submitted by petitioners and contained in the
record sufficient to carry their burden to show that the new search procedure is an “exaggerated
response” to the JDG’s concerns. Further, the Court finds the government’s proffered
justifications for the new search procedure unpersuasive in light of the evidence in the record.
Thus, the Court will order that the modified search procedure be used for in-person detainee
meetings with counsel and for detainee phone calls with counsel.
C. The JDG Must Allow Certain Detainees to Meet with Counsel in the Housing
Camps
The Court now turns to the petitioners’ request that the Court order JTF-GTMO to allow
detainees to meet with counsel in their housing camps. At the outset, the Court recognizes that
under the current regime, the government has the prerogative to select the location for attorney–
client meetings. Under the Protective Order, “[l]egal visits shall take place in a room designated
by JTF-Guantanamo.” ¶ II.C.11.b;5 see also ¶ II.J.37 (“Counsel will meet with detainees in
5
In the published version of Judge Hogan’s Protective Order, paragraph II.C.11 has two sub-paragraphs designated
“a.” As this citation is to the second of those sub-paragraphs, the Court corrects the typographical error in its
28
conference facilities provided by GTMO.”). Of course, the government’s control over the
location for attorney–client meetings under the Protective Order is subject to revision. See id. ¶
II.A.1 (“Except as otherwise stated in these Procedures . . . or by other Order issued in the United
States District Court for the District of Columbia, the following procedures shall govern counsel
access to all detainees [at GTMO].”) Though the Protective Order gives substantial deference to
JTF-GTMO, as is appropriate, the overarching context of the protective order is one in which the
government may exercise its prerogatives as prison administrator, but must do so reasonably.
See, e.g., id. ¶ II.C.11.a–.b (requiring that JTF-GTMO use reasonable efforts to accommodate
counsel’s requests for meetings with their clients and that the Commander, JTF-GTMO will not
unreasonably withhold approval for more than two attorneys and one translator to meet with a
detainee at one time). This standard of reasonableness is appropriate as it is, arguably, what
would be required under Turner.
Applying the first Turner factor, the government offers two justifications for the policy
forbidding attorney–client meetings in the detainees’ housing camps. The government’s first
justification is, essentially, that the meeting rooms in Camp Echo are in some way better for the
detainees and counsel than any room available in Camp 5 or 6. See Opp’n 9 (noting that the
Camp Echo meeting rooms have separate spaces for detainee prayer and that, at Camp Echo,
counsel may “watch DVDs, read books, and share food with their clients”). While Col.
Bogdan’s desire to provide detainees with better accommodations for attorney–client meetings is
admirable, it has nothing to do with the government’s interests in security or camp operations.
Moreover, it is undercut by the petitioners’ assertion that the change inhibits counsel access. The
government’s second set of justifications, however, is more substantial.
The government identifies several logistical concerns that it contends favor restricting
citation for purposes of clarity.
29
attorney–client meetings to Camp Echo. First, the government notes that all visitors to
Guantanamo, including attorneys, must pass through visitor screening at Camp Echo regardless
of their destination within the detention facility. Id.; Bogdan Decl. ¶ 6. Second, the government
points to the need to divert guards and Staff Judge Advocates to escort counsel to and from
meetings in the housing camps. Opp’n 9; Bogdan Decl. ¶ 15. Third, the government contends
that meetings in the housing camps will impair movements of other detainees in the housing
camps as other detainees cannot be moved while a detainee is moving to or from a meeting in the
housing camp. Opp’n 10; Bogdan Decl. ¶ 15. Fourth, and most importantly, the government
argues that meetings in the housing camps divert guards from other tasks because the guards
must monitor the attorney–client meetings. Opp’n 10; Bogdan Decl. ¶ 15.
The government’s first three justifications are easily dismissed. As to the first, the fact
that all the attorneys must enter the detention facility via Camp Echo has no logical bearing on
whether detainees may meet with their attorneys in the housing camps or only at Camp Echo.
Indeed, habeas counsel have expressed no concern with whatever added inconvenience a trip
from Camp Echo to Camp 5 or 6 might represent. Moreover, the government has raised no
concerns about movement of counsel within the facility. As to the second justification,
petitioners’ counsel correctly reason that the guards may escort the detainee to Camp Echo or
counsel to the housing camps, but in either case they must escort someone somewhere. Hatim
Reply 5–6; see also Bogdan Decl. ¶ 7 (“JTF-GTMO maintains an escort staff of guards whose
exclusive mission is to support movements of detainees and visitors, including habeas counsel.”).
Presumably, escorting the attorneys should be the easier of the two insofar as counsel need not
be shackled for the trip. The government’s third justification is likewise inadequate: if only one
detainee may be moved at a time, the problem of coordinating detainee movements will exist
30
regardless of whether detainees meet with their attorneys in Camp Echo or in the housing camps
since detainees must move through their housing camps in either case.
The government’s fourth justification, however, requires more careful consideration. The
government argues that allowing detainees to meet with their attorneys in Camp 5 or 6 would
negatively impact the availability of the guard force. Opp’n 10, 23. Specifically, the lack of a
centralized video-monitoring facility in Camps 5 or 6 of the sort that exists in Camp Echo means
that guards must be stationed outside the meeting room “to ensure the safety of counsel and to
discourage and prevent misconduct by the detainee.” Opp’n 10, 23; see also Bogdan Decl. ¶ 15.
Of course, stationing guards outside the room for attorney–client meetings diverts the guards
from other duties and, the government contends, may interfere with camp operations. Opp’n 10,
23; Bogdan Decl. ¶ 15. The allocation of guard staff and their duties requires considerations of
“planning . . . and the commitment of resources,” Turner, 482 U.S. at 85, for which the
Executive has expertise and to which the Judiciary typically defers. The courts need not give
blind deference, however. Indeed, the Court must examine the regulation in its context to
determine if there is a valid, rational connection to legitimate penological interests.
Examination of the context of detention at Guantanamo shows that the JDG’s regulation
forbidding attorney–client meetings in Camps 5 or 6 lacks a valid, rational connection to the
government’s legitimate penological interests in security or orderly administration. To be sure,
allowing attorney–client meetings in the housing camps will divert some guards away from their
other duties, but the Court must recognize that the practical effect of petitioners’ request is
limited. As Adm. Walsh identified, there is only one room for attorney–client meetings in Camp
5, Walsh Report 11, and Col. Bogdan identified two rooms that could be used for attorney–client
meetings in Camp 6. Bogdan Decl. ¶ 14. Assuming that the JDG must station two, or even
31
three, guards outside the meeting rooms, allowing attorney–client meetings would divert a
maximum of two to three guards in Camp 5 and four to six guards in Camp 6. The Court is
confident the JDG can spare these guards to accommodate the use of one attorney–client meeting
room in Camp 5 and two attorney–client meeting rooms in Camp 6. Moreover, the Court must
remain cognizant of the fact that almost two-thirds of those detained at Guantanamo, including
several of the petitioners, are engaged in a weeks-long hunger strike. Hatim Mot. 3. Those
detainees engaged in the hunger strike are, expectedly, in a substantially weakened physical
state. Id.; see also id. Exs. A–G (describing the physical state of detainees engaged in the hunger
strike). In such a state, detainees are both (1) less able to move from their housing camps to
Camp Echo or Camp Delta and (2) less of a security risk. Indeed, in the context of the hunger
strike, failure to accommodate petitioners’ reasonable request seems less like a valid choice on
the part of the JDG commander and more like an attempt to deny counsel access through
alternative means.
The Court now turns to the remaining Turner factors. Applying the second factor, the
Court finds that, for those detainees participating in the hunger strike who are too weak to go to
Camp Echo to meet with counsel, no alternatives to exercise their right to petition for habeas
corpus exist. As this Court stated above, any attempt to bring a habeas petition where attorney–
client communications are limited to legal mail would be untenable. Applying the third Turner
factor, the Court finds that the “ripple effect” of accommodating the detainees’ request would be
minimal given the limited facilities available for attorney–client meetings at Camps 5 and 6.
Finally, under the last Turner factor, allowing limited attorney–client meetings in Camps 5 and 6
is an obvious and reasonable accommodation for those detainees too weakened by the hunger
strike to travel to Camp Echo.
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In summary, the Court finds the JDG’s policy of forbidding attorney–client meetings in
the housing camps to be an exaggerated response to the government’s penological interests in
security and orderly operations. The Court will amend Judge Hogan’s Protective Order to
require that the JDG allow attorney–client meetings in Camps 5 and 6 for those detainees who
are in a weakened physical state due to participation in the hunger strike or who have a medical
condition that similarly makes travel outside the housing camps difficult. Given the limited
space available for attorney–client meetings in Camps 5 and 6, counsel for petitioners and
government counsel shall meet to establish procedures to ensure that the limited availability for
attorney–client meetings in the housing camps is apportioned fairly amongst the detainees.
D. The JDG Must Allow Certain Petitioners to Use the Old Vans for Transport
to Camps Echo and Delta
Due to the limited space for attorney–client meetings at Camps 5 and 6, some detainees
may still need to travel to Camps Echo and Delta for attorney–client meetings and phone calls.
Thus, the Court now turns to petitioners’ challenge to the vans used by JDG to transport
detainees from their housing camps to Camps Echo and Delta. Applying the same
considerations that it applied to the regulations concerning attorney–client meetings in the
housing camps, the Court concludes under Turner that detainees engaged in the hunger strike
should be allowed to use the old vans for transport to Camps Echo or Delta.
At the outset, the Court must applaud the JDG’s effort to accommodate detainees request
for new vans with better air conditioning and its ongoing effort to modify those vans to allow
detainees to sit upright during transport. Bogdan Decl. ¶ 22. Thus, the Court hopes any
accommodation it requires in this regard will be short lived. Applying the first Turner factor, as
between the old vans and the unmodified new vans, no penological interest favors the use of one
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over the other. The government admits that the old vans are still available for use use and that it
purchased the new vans as part of a “routine fleet upgrade and to address detainee complaints
about a lack of air conditioning in the older vans.” Opp’n 10. The government’s decision to
replace the vans does not implicate its penological interest in security or orderly operations.
Nothing, for example, suggests the old vans are any less secure than the new vans. Applying the
remaining Turner factors, the Court finds that accommodating the detainees’ request here would
be truly costless. Indeed, given that the old vans are still available and just as good, the cost to
the JDG to use one of the old vans rather than one of the unmodified new vans is zero. The
government tacitly admits this insofar as it allows detainees with certain medical conditions to
use the old vans while the new vans are being modified. Bogdan Decl. ¶ 22. Detainees
participating in the hunger strike should be accommodated similarly. Indeed, given the
importance of the right to habeas corpus and access to counsel for the detainees, wisdom
counsels in favor of granting a truly costless request like the one petitioners have submitted here.
VI. CONCLUSION
In closing his speech at the National Defense University, the President quoted Judge
William Young. See Remarks by the President at the National Defense University. In
sentencing Richard Reid, the shoe bomber, Judge Young told him that “[t]he way we treat you . .
. is the measure of our own liberties.” Id. Judge Young’s comment is equally apt when applied
to the detainees at Guantanamo.
This Court is duty bound to protect the writ of habeas corpus as a fundamental
prerequisite of liberty by ensuring that all those who seek it have meaningful and effective access
to the courts. For Guantanamo detainees, it is undisputed that access to the courts means nothing
without access to counsel. The JDG’s behavior, exemplified by the new search and meeting
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procedures, flagrantly disregards the need for a light touch on religious and cultural matters that
Admiral Walsh recognized years ago. Further, the search procedures discourage meetings with
counsel and so stand in stark contrast to the President’s insistence on judicial review for every
detainee. The Court, whose duty it is to call the jailer to account, will not countenance the
jailer’s interference with detainees’ access to counsel.
For the foregoing reasons, the Court finds the challenged procedures and regulations
invalid as they pertain to counsel access. The Court further concludes, pursuant to ¶ I.E.34 of the
Protective Order, that this Memorandum Opinion and the accompanying Order issued this date
should not be designated as protected, but will be available on the public record. Given the
limits of this Court’s jurisdiction, the Court’s holding does not affect the ability of the JDG to
continue to administer the Guantanamo detention facility as it finds appropriate with respect to
issues unrelated to counsel access.
A separate Order consistent with this Memorandum Opinion shall issue this date.
Signed by Royce C. Lamberth, Chief Judge, on July 11, 2013.
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