WASHINGTON (AP) - Federal appeals court judges Monday questioned whether the government has gone too far by searching the genital areas of Guantanamo detainees who want to meet with their lawyers.
"That's rather provocative and offensive, isn't it?" Judge Thomas Griffith asked a government lawyer at a hearing of a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. Griffith, an appointee of President George W. Bush, added that the government has a "special obligation" to ensure that detainees' access to counsel is preserved.
Detainee lawyers say the searches began after prisoners were told they would have to travel from their resident camp to another site at the base to meet with or talk on the telephone with their lawyers. In July, U.S. District Court Judge Royce Lamberth ordered the government to end the searches as they pertain to detainees' access to counsel. He concluded that the motivation for the searches was not to enhance security, as the government claims, but to deter the detainees' access to attorneys. Lawyers for some detainees say their clients are foregoing the meetings rather than subjecting themselves to searches they consider religiously and culturally abhorrent.
But the appeals court put Lamberth's decision on hold while the higher court took up the case.
Justice Department lawyer Edward Himmelfarb tried to put a good spin on the genital searches, saying it was like a TSA search at the airport.
"It's not as bad as it sounds," he said, adding that detainees' private areas are never exposed.
Himmelfarb said that there was contraband discovered in June at the base. But under questioning by Judge Karen LeCraft Henderson, an appointee of President George H.W. Bush, Himmelfarb conceded it wasn't discovered as a result of a genital search.
The Justice Department argues that Lamberth, the district court judge, did not have jurisdiction to hear the case because it involved conditions of confinement, not, as the detainees argue, access to counsel. The government also argues that Lamberth was wrong to question the motives of Guantanamo commanders, including a declaration by Army Col. John Bogdan, the officer in charge of the operations of the Guantanamo Bay prison.
Lamberth's "characterization of the security rationale as a pretext was essentially an unsupported accusation that Col. Bogdan lied under oath," the Justice Department wrote in a court filing.
But Chief Judge Merrick B. Garland asked what would happen if the Guantanamo commander had announced that he was using the searches to obstruct access to counsel.
"It would be a very difficult case if that was the only motive," Himmelfarb said.
Bill Livingston, a lawyer for one of the detainees, Saeed Hatim of Yemen, told the court he hasn't been able to meet or talk to his client since the new search policy went into effect this year. In 2009, a district court judge granted Hatim's petition for release, but the appeals court overturned that ruling in 2011, instructing the lower court to review the case again in light of new standards. Hatim says he was tortured into falsely confessing that he was part of al-Qaida. Livingston said the case is now on hold because of the genital searches.
Livingston added that the lawyers all have security clearances, and there's no danger that the lawyers would try to smuggle in contraband.
But Garland said that the issue wasn't that lawyers were smuggling in contraband, but rather getting them when they are outside their residences.
"They don't know where it's coming from," said Garland, an appointee of President Bill Clinton. And when Livingston tried to downplay that danger, Garland said of the types of contraband the government says it has found, "They certainly look like weapons." According to court filings, military officials have found things like nails and shanks.
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