IN THE COURTS

Court weighs: Are Guantánamo genital searches too aggressive?

 

McClatchy Washington Bureau

The key appellate court that’s incited a Senate-confirmation clash confronted on Monday touchy questions about searches of detainees at the U.S. Navy base at Guantánamo Bay.

Even as a bitterly divided Senate prepared to add new judges to the powerful U.S. Court of Appeals for the District of Columbia Circuit, a panel showed the court’s long reach by considering a challenge to Guantánamo search procedures. Initiated in May amid a detainee hunger strike, the new procedures include flat-hand frisking of groins and buttocks when detainees travel within Guantánamo to meet with attorneys.

“It’s a search of male genitals,” Judge Thomas Griffith noted. “That’s pretty provocative and offensive, isn’t it? How do you justify such a provocative search?”

Defense attorneys contend that the aggressive searches deter detainees from talking to counsel. In July, U.S. District Judge Royce Lamberth agreed and ordered the searches halted. The Obama administration appealed, leading to the 45-minute oral argument Monday before a three-judge panel.

“For these detainees – devout Muslims – these searches are culturally and religiously abhorrent,” attorney S. William Livingston said, adding that “they’d rather forgo the meeting with counsel than undergo the search.”

Livingston and attorney David Remes, among others, represent detainees who include Saeed Mohammed Saleh Hatim, a native of Yemen who’s said he was tortured into saying that he belonged to al Qaida. A federal judge ordered Hatim released in 2009, but that order has been appealed.

Hatim and the other detainees may face an uphill battle.

Griffith, while acknowledging the intimate nature of the search procedures, also effectively denounced Lamberth’s ruling as a case of judicial overreach. Appointed to the bench in 2005 by President George W. Bush, Griffith said Lamberth appeared “way out of line” with a ruling that “doesn’t sound anything close to deferential” to the professional judgments of prison administrators.

“The district court is micromanaging,” Griffith said.

Another Republican appointee on the panel, Judge Karen LeCraft Henderson, asked few questions Monday but in the past she’s sided with the government in Guantánamo Bay cases. In one notable prior case, the former South Carolina attorney concluded that the detainees were not U.S. “persons” covered by the Religious Freedom Restoration Act.

Together, Griffith and Henderson would be enough for the government to prevail in the search case heard Monday. The third member of the appellate panel, Chief Judge Merrick Garland, is a Democratic appointee who pressed attorneys for both sides. While Garland didn’t clearly tip his hand Monday, he sounded sympathetic to the government when he pointed out that some contraband seized by Guantánamo authorities “certainly look like weapons.”

“You have to have some level of deference to this military facility that’s housing enemy combatants,” Justice Department attorney Edward Himmelfarb said, adding that the Guantánamo searches are “basically like a TSA search at the airport.”

The federal Transportation Security Administration oversees airport security.

The Washington appellate court must first decide whether the court is even allowed to hear the detainees’ case or whether Congress ruled that out by passing a law shielding “conditions of confinement” at Guantánamo from judicial second-guessing. If the appellate court rules that it has jurisdiction, which it might because of the importance given to access to counsel, the panel then must decide whether to defer to the judgments of prison professionals.

Although the Supreme Court has said, in one important 1987 case out of Missouri, that “prison walls do not form a wall separating prison inmates from the protections of the Constitution,” the high court added that rules for the “inordinately difficult undertaking” of running a prison will be upheld if they’re “reasonably related to legitimate penological interests.”

The oral argument Monday morning occurred about seven hours before the Democratic-controlled Senate was to confirm attorney Patricia Millett to the Washington appellate court. Millett was one of three recent Obama administration nominees to the court to be filibustered by Republicans, prompting Senate Democrats to change the rules so that judicial nominees need only 51 votes instead of 60. The confirmation of all three of Obama’s nominees will shift the partisan balance among active judges on the court to seven Democrats and four Republicans.

Read more Guantánamo stories from the Miami Herald

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