Federal judges reinstate groin searches pending appeal

07/17/2013 2:09 PM

05/04/2014 11:00 AM

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.”

Gen. Kelly, the Southcom commander with oversight of the detention center, joined the fray with a 10-page declaration on the same day he flew to Cuba and installed a 13th prison commander, Rear Adm. Richard Butler, under an annual rotation.

Kelly wrote that “shaking the waistband” was an insufficient security measure in light of the discovery of contraband in the cells of some communal captives earlier this year, as well as the death last year in maximum-security lockdown of a Yemeni captive who overdosed on psychiatric drugs, Adnan Latif.

In his ruling last week, Lamberth concluded that the motivation for the searches was not to enhance security but to deter the detainees’ access to attorneys by implementing search procedures that are “religiously and culturally abhorrent” to devout Muslims.

Lamberth’s ruling had sought to reset the search procedures to an era before Latif’s death. The judge noted that there was no proof that Latif hid the drugs in his genital area.

The general called the judge’s order both a danger and a hardship on the guards among the 2,000-member prison staff, which Southcom has steadily expanded during the five-month-old hunger strike.

“Adding to the burdens already placed on the guard force must be carefully considered,” Kelly wrote, “to ensure that the guard force is not stretched to the point, both individually and collectively, that it cannot effectively carry out its responsibilities.”

The genital search issue became urgent Wednesday because of a long-scheduled 2 p.m. telephone call sought by attorney Jennifer Cowan with a Yemeni client, Hayil al-Mithali, one of the hunger-striking captives who is being force-fed.

A Justice Department official notified Cowan on Tuesday that the government was considering whether to appeal Lamberth’s ruling and that she could only speak with the captive if she consented to having his genitals searched. She did not, and filed an emergency motion to force the military to comply with the civilian court order.

The prison did. Cowan said guards brought Mithali to a phone Wednesday afternoon after the non-invasive search procedure. The captive told her he’s “still being force-fed, only once a day instead of twice a day because of Ramadan.” While they spoke, the court issued the stay — allowing genital searches. Cowan said she did not know how Mithali was searched on his way back to Camp 6, where he has been held.

Prison officials say that, during Ramadan, Camp 6 is a communal camp, off limits to hunger strikers. But Mithali lawyer said he and other hunger strikers are there, according to the captive, periodically “threatened that if they continue to be on hunger strikes, they will be moved to solitary confinement so that they can be more closely monitored.”

Army Lt. Col. Kimeisha McCullum, a Southcom spokeswoman, would not say whether Kelly wrote the declaration while on the base Tuesday, and whether he met with guards or toured the prison during the visit.

Video from the ceremony released by the Defense Department showed it took place at a Navy base social hall, not at the prison itself.

In London, detainee attorney Crider, who works for a non-profit law firm Reprieve, called the refusal to follow Lamberth’s order “contempt of court, pure and simple. Why is it suddenly essential for the government to grope my clients in a way that been off-limits for years?”

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