Thursday, in response to the May 22nd emergency motion requesting an end to the newly instituted groin searches, Federal District Chief Judge Royce C. Lamberth ordered the government to stop genital searches of Guantanamo Bay detainees prior to meeting with their lawyers. In his strongly-worded 35 page opinion, Judge Lamberth ordered prison commanders to return to an earlier search method described in a 2009 Defense Department task force review, which limited guards to grasping the waistband of a detainee’s trousers and shaking their pants to dislodge any contraband. The current search method at Guantanamo, referred to as an exaggerated response to unpersuasive security concerns, involves the touching and holding of detainees’ genital and anal areas “flagrant[ly] disregard[ing] the need for a light touch on religious and cultural matters” and dissuades detainees from gaining access to their lawyers. The order stated in part that:
“… the choice between submitting to a search procedure that is religiously and culturally abhorrent or forgoing counsel effectively presents no choice for devout Muslims like petitioners.”
While the government made justifications for the invasive searches at Guantanamo, i.e.the finding of homemade weapons and prohibited electronic devices in April, Judge Lamberth felt that the record failed to indicate “that the detainees have received any contraband from their attorney or that detainees have attempted to pass contraband to each other during phone calls or meetings with attorneys.”
Responding quickly to the order, the Justice Department filed an appeal late last night. The Justice Department has requested a hold to be placed on the stopping of genital searches, stating that Guantanamo detainees are able to gain access to weaponizable items which may result in suicide, harm to other detainees, or the guards becoming seriously injured. In addition to the appeal, the government submitted a sworn declaration from Marine General John Kelly, commander of United States Southern Command, who spoke strongly of the irreparable harm that would result with the discontinuance of genital searches at Guantanamo. The government claims that the newly implemented search methods have not deterred meetings nor have they impacted access to the prisoners. Furthermore, the government states Judge Lamberth’s order is barred by the Military Commissions Act, which “unequivocally bars conditions-of-confinement claims by Guantanamo detainees.”
“Because the full-frisk-search and visit-location policies with which Petitioners take issue both concern their conditions of confinement, the Court lacked jurisdiction to issue an order enjoining them.”
The appeal has resulted in great tension. Guantanamo leadership is maintaining protocol, requiring their “standard” genital searches before and after visits with attorneys or phone calls, while lawyers have filed a motion asking Judge Lamberth to issue an order requiring the government to follow his ruling, arguing that the government is acting in contempt of court. In the upcoming weeks, it will be interesting to see whether the appeal moves forward, or if for the first time, a federal court can restrict a military commander from implementing certain security procedures at a detention facility.
Alexandra Kutner, Research Fellow
Center for Policy and Research