Deferential D.C. Circuit Upholds Genital Searches at Guantánamo

I’ve written before about the potential significance of the Guantánamo “counsel access” caseHatim v. Obama–which raised the question of whether new and especially invasive search procedures at Guantánamo were invalid insofar as they interfered with the detainees’ right of access to counsel. Today, a three-judge panel of the D.C. Circuit upheld the procedures, while claiming to duck the far larger and more important constitutional question the district court had reached, i.e., whether the right of access to counsel in these cases is protected by the Suspension Clause. In the process, the Court of Appeals held that the deferential Turner v. Safley test does apply to challenges to conditions of confinement at Guantánamo–a very big win for the government, and a big setback for the detainees.

I.  The Jurisdictional Issue

When Hatim was argued last December, it appeared to raise a major constitutional question with respect to whether the D.C. Circuit even had the power to entertain the detainees’ challenge to the search procedures. Although Boumediene had held that the detainees are entitled to pursue habeas relief notwithstanding the habeas-stripping provision of the Military Commissions Act, other D.C. Circuit decisions had upheld the non-habeas-stripping provision of the MCA–and thereby seemed to foreclose challenges that weren’t cognizable via habeas. Then-Chief Judge Lamberth sidestepped those rulings by holding that the search procedures interfered with the detainees’ right of access to counsel (since they effectively inhibited many of the detainees from consulting with their lawyers), a right that Lamberth held to be enmeshed within the constitutional entitlement to habeas relief enunciated by the Supreme Court in Boumediene. In other words, the district court had held that it had jurisdiction entirely because the Suspension Clause includes a right of access to counsel–a novel and potentially monumental holding, albeit one that, as I’ve written, seems exactly right to me.

But after the oral argument in the D.C. Circuit, a different three-judge panel handed down Aamer v. Obama, in which the Court of Appeals held that Boumediene had invalidated the MCA’s habeas-stripping provision in its entirety–not just in cases in which the Constitution demanded access to the courts. Thus, Aamer restored the pre-MCA status quo–where the D.C. courts had statutory jurisdiction to entertain any claim that was properly cognizable via habeas. And so in today’s ruling, the panel sidesteps the constitutional question then-Chief Judge Lamberth had decided, holding only that, insofar as the detainees are challenging the conditions of their confinement, such a claim is cognizable via habeas thanks to Aamer. As Judge Griffith concluded for himself, Chief Judge Garland, and Judge Henderson, “The district court thus had jurisdiction under Aamer, and we need not address other jurisdictional theories.”

II.  The Merits

Turning to the merits, Hatim reached two critical conclusions: First, it disagreed with then-Chief Judge Lamberth that the deferential Turner v. Safley standard (which was articulated in a case involving detainees serving post-conviction prison sentences) doesn’t apply to non-criminal detention at Guantánamo. As Judge Griffith wrote,

Here, . . . the district court took the view that Turner’s deference to reasonable prison regulations does not apply to habeas claims, holding that “[s]ince 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.” Although there is some intuitive appeal to this novel reasoning, we are compelled to reject it because it directly contravenes Lewis v. Casey, 518 U.S. 343 (1996). Lewis involved a class action alleging that inadequacies in the Arizona prison system deprived inmates of their constitutional right to access the courts by limiting the prisoners’ ability to bring various types of lawsuits, including habeas petitions. The Supreme Court held that “Turner’s principle of deference” applies to prison officials’ interference with inmates’ attempts to bring their habeas claims, foreclosing the district court’s suggestion that Turner does not govern a prisoner’s claim that his habeas rights have been abridged by prison officials.

Unfortunately, Judge Griffith thereby completely missed the point of Judge Lamberth’s analysis–and his explanation for why Turner deference was inappropriate. The district court held Turner inapposite not only because this is a habeas case, but because this is a habeas case in which the detainees are seeking to vindicate their constitutional right to a habeas remedy–a context in which it does not make sense, and may in fact be constitutionally inappropriate, to defer to the government’s claims. As Judge Lamberth explained,

The notion that habeas corpus, like the freedoms of association or speech, 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.” 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.

Lewis, in contrast, was an ordinary prisoner habeas case where there was no such constitutional baggage. In other words, by purporting to duck the constitutional issue in its discussion of why it had jurisdiction, the panel thereby missed the relevance of Judge Lamberth’s analysis of the constitutional issue to the merits, as well.

With regard to why this omission (and the endorsement of the Turner standard) is so critical, consider how the Hatim panel then applied Turner:

[The detainees] argue that more thorough searches are not needed during their visits with counsel because the government failed to provide evidence that the contraband was smuggled into the housing camps during these visits. But the authorities at Guantanamo do not know how or when detainees obtain contraband. In light of such uncertainty and the fact that smuggling takes place, we think administering a more thorough search in connection with attorney visits as well as with any other detainee movements or meetings is a reasonable response to a serious threat to security at Guantanamo.

In other words, even though the government provided no evidence tending to suggest that the detainees had received contraband in meetings with their counsel, and even though the detainees are subject to these searches even when they are transported to a phone call with their lawyers (good luck explaining how the lawyers can pass contraband over a phone line), the Court of Appeals accepted, without any skepticism, assertions that then-Chief Judge Lamberth thoroughly deconstructed. Simply put, “The district court . . . erred by failing to defer to the reasonable explanation of Guantanamo officials for decisions within their area of authority and expertise.”

Thus, even though the Court of Appeals ostensibly ducked the constitutional elephant in the room, its decision, if it remains intact, is a huge win for the government. Not only does Hatim confirm that the very deferential Turner standard governs challenges to conditions of confinement at Guantánamo, but it applies Turner in a way that suggests it is going to be exceedingly difficult for a detainee to ever successfully challenge a change in his conditions of confinement–even a change that the district court found to be almost certainly designed to make it more difficult for the detainee to vindicate his constitutional right of access to a judicial forum.

As then-Chief Judge Lamberth explained, “For Guantanamo detainees, it is undisputed that access to the courts means nothing without access to counsel.” That access just got a whole lot harder… 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).