Back in August, I wrote about the D.C. Circuit’s disappointing decision in Hatim v. Obama (the genital searches case), in which the Court of Appeals (1) held that the deferential Turner v. Safley standard applies to challenges to new prison policies that allegedly interfere with the Guantánamo detainees’ right of access to counsel (and, through their counsel, to the courts); and (2) applied Turner in an incredibly superficial manner, accepting implausible justifications for the new searches from the government and rejecting the detainees’ arguments that the searches were unnecessary, despite extensive findings to the contrary made by then-Chief Judge Lamberth in the district court.
The petitioners in Hatim have now filed a petition for rehearing en banc in the D.C. Circuit, seeking to challenge both of these holdings. In the process, the petitioners have created a Guantánamo test case for the “new” D.C. Circuit–which, thanks to President Obama’s four appointments thereto, is now at full strength for the first time since this litigation began. And given the stakes in Hatim (which go far beyond Guantánamo), the petition may well have legs.
At its core, the petition argues that Turner is an inappropriate standard to apply when prisoners are seeking to vindicate their constitutional entitlement to habeas review, as opposed to claims seeking to enforce substantive constitutional rights within the prison setting (and Lewis v. Casey, on which the D.C. Circuit relied, is not to the contrary). And even under Turner, deference does not amount to abdication–and so the Court of Appeals erred in not meaningfully scrutinizing the validity of the government’s penological justifications for the new search procedures (Turner itself invalidated some of the procedures there at issue). Thus, even if Turner is the appropriate standard, it was applied by the Hatim panel “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.”
To be sure, any petition for rehearing en banc in the D.C. Circuit is a long-shot. This is especially true in the Guantánamo litigation, where the Court of Appeals has never granted a petition from a detainee (the non-en banc maneuverings in al-Bihani notwithstanding). And given that Chief Judge Garland was on the panel in Hatim, the math is tricky–the petitioners would need all six of the other Democratic appointees to vote to rehear the case, or at least one of the Republican appointees who was not on the panel. Neither scenario strikes me as likely, but even a dissent from a denial of rehearing en banc might help tee this case up for the Supreme Court. After all, as I explained in an MSNBC piece,
By holding that Turner’s deferential standard applies to the right of the Guantánamo detainees to pursue judicial review in the first place, the Court of Appeals necessarily held that Turner applies to the habeas right in general – and thereby dealt a blow to all prisoners, state and federal, who would seek a judicial remedy to challenge the legality of their detention. Whether or not we care about Guantánamo anymore (or ever did), such a frontal assault on “the great bulwark of our liberty” demands the attention – and reprobation – of anyone committed to the rule of law, including the nine justices of the Supreme Court.