Armed Conflict Courts & Litigation Criminal Justice & the Rule of Law Terrorism & Extremism

D.C. Circuit Upholds Security Policies in Hatim v. Obama

Jane Chong
Friday, August 1, 2014, 9:06 PM
Today the D.C. Circuit handed down its decision in the "counsel access" case, upholding the constitutionality of security procedures instituted at Guantanamo in 2012 and 2013.

Published by The Lawfare Institute
in Cooperation With

Today the D.C. Circuit handed down its decision in the "counsel access" case, upholding the constitutionality of security procedures instituted at Guantanamo in 2012 and 2013. The panel decision, written by Judge Griffith for himself, Chief Judge Garland and Judge Henderson, reverses Chief Judge Royce Lamberth's July 11, 2013 ruling partially invalidating the procedures on the grounds that they amounted to unconstitutional government interference with the petitioners' access to habeas counsel.
Judge Griffith's 14-page opinion makes quick work of the two policies at issue: (1) a September 2012 policy that requires all detainees who seek to meet with visitors to make what detainees contend is a physically grueling trip by van to Camp Echo, and (2) a May 2013 policy that revised groin searches to require guards to physically press against detainees' bodies before and after detainees meet with their lawyers. The detainees contended that the policies have the purpose and effect of discouraging them from meeting with counsel and sought an order barring use of the new procedures. That order was granted in part by the district court but stayed by the D.C. Circuit in August.
Back in July, Chief Judge Lamberth found that the deferential standard for prison regulations promulgated by the Supreme Court in Turner v. Safley, 482 U.S. 78 (1987) was "logically inapplicable" to the security protocol at issue insofar as the regulations impinged on the detainees' right to petition for habeas. In the alternative, the court found that the search procedures failed the Turner standard.
The D.C. Circuit rejected the district court's "novel" reading of Turner as a direct contravention of Lewis v. Casey, a 1996 case in which the Supreme Court held that the deferential Turner standard applied to prison officials' interference with inmates' pursuit of habeas relief. Judge Griffith then applied the four-factor Turner test to conclude that the challenged security policies are reasonable. The factors consist of: (1) the existence of a “valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it," (2) “whether there are alternative means of exercising the right that remain open to prison inmates,” (3) “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally,” and (4) “the absence of ready alternatives” to the regulations at issue.
Judge Griffith closes his opinion by acknowledging and rejecting the lower court's general interpretation and application of Turner in brief:
The district court’s very different take on these reasonable changes to policy at Guantanamo appears to stem from its view that the changes in policy were pretextual and the result of the government’s plan to inhibit detainees’ access to counsel. It is unclear what role, if any, motive plays in the Turner inquiry. Compare Hammer v. Ashcroft, 570 F.3d 798, 803 (7th Cir. 2009) (en banc), with Salahuddin v. Goord, 467 F.3d 263, 276-77 (2d Cir. 2006), and Quinn v. Nix, 983 F.2d 115, 118 (8th Cir. 1993). Even if some quantum of evidence of an unlawful motive can invalidate a policy that would otherwise survive the Turner test, the evidence of unlawful motive in this case is too insubstantial to do so. The district court drew inferences from past conduct by former commanders and dismissed as unbelievable the sworn statements of military officials. We find such an approach unwarranted. Although we must not give prison administrators a free hand to disregard fundamental rights, this case is a far cry from instances where administrators have acknowledged their intent to extinguish prisoner rights and acted accordingly. Cf. Hammer, 570 F.3d at 802-03. The tenuous evidence of an improper motive to obstruct access to counsel in this case cannot overcome the legitimate, rational connection between the security needs of Guantanamo Bay and thorough searches of detainees.
For background, check out Raff's summary of the government's opening brief and her overview of the detainees' response. For a description of the genital-area searches at issue in the case, see the dueling letters filed with the court by defense lawyer David Remes and the Department of Justice back in December.

Jane Chong is former deputy managing editor of Lawfare. She served as a law clerk on the U.S. Court of Appeals for the Third Circuit and is a graduate of Yale Law School and Duke University.

Subscribe to Lawfare