A federal appeals court is allowing Guantánamo guards to resume searching detainees’ genitals on their way to and from legal meetings while the Obama administration challenges a federal judge’s ruling that the searches unfairly impede attorney-client interaction.
The order Wednesday by a three-judge panel at the U.S. Court of Appeals for the District of Columbia Circuit capped 24 hours of legal wrangling: The Justice Department asked a New York lawyer to let guards search her client’s genital area, the lawyer refused and the Southern Command’s top general joined the fray with a sworn declaration that a federal judge got it wrong.
Groin searches aren’t intended to prevent legal meetings, said Southcom’s Marine Gen. John F. Kelly, noting that his Guantánamo soldiers similarly search captives meeting with Red Cross delegates.
Past practice of shaking a captive’s trousers to see if “nails, shanks, ragged scraps of metal” fall out “posed an unacceptable risk to the safety and security of detainees and guards,” Kelly said.
Last week, detainee lawyers persuaded U.S. District Judge Royce Lamberth that the invasive searches, adopted amid a widespread hunger strike, were discouraging some of Guantánamo’s 166 captives from voluntarily leaving their cells for meetings with their lawyers. Lamberth ordered the guards to stop it, and resume the practice of physically shaking the waistband of the pants of a prisoner to see if any contraband comes out.
The latest legal move comes as the prison camps reported that it had 46 hunger-striking captives designated for forced-feedings on Wednesday.
Army Lt. Col. Samuel House said the prison counted 78 prisoners as hunger strikers, down from a record 106 on the eve of Ramadan.
Navy medical staff listed 46 as having health conditions sufficiently at risk to require twice-daily trips to a restraint chair and nasogastric feedings if they refused to voluntarily drink nutritional supplements. Three hunger strikers were at the prison camps hospital, House said, none with “any life-threatening conditions.”
Pro-bono defense lawyers who last week won the court order preventing the search practice reacted with fury.
“Doesn’t the government have more important things to do than defend its right to grope detainees?” said attorney David Remes in Washington. In London, detainee attorney Cori Crider called the searches “a transparent effort to break the hunger strike and to staunch the flow of information about it to the outside world.”
The groin searches were reinstated, at least temporarily, by a three-judge panel — two appointed to the court by George W. Bush and one by Bill Clinton — while the appeals court considers whether to overturn Lamberth’s order. A preview of the appeal, in the Justice Department’s bid for a stay, said the searches were justified because the military has this year found “dangerous materials and other contraband” in cells at the prison.
None of these materials were used in attacks on guards, and there’s no evidence that attorneys provided captives with contraband, the government wrote. Still, “prison officials are entitled to take preemptive measures to ensure the security of their facilities.”