WASHINGTON — A federal judge Thursday ordered the government to stop genital searches of Guantanamo Bay detainees who want to meet with their lawyers, concluding that the motivation for the searches is not to enhance security, but to deter the detainees’ access to attorneys.
In a blistering 35-opinion, Royce Lamberth, chief judge of the U.S. District Court in Washington, ordered prison commanders to return to the old search method: grasping the waistband of a detainee’s trousers and shaking the pants to dislodge any contraband.
“As petitioners’ counsel argued, 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,” Lamberth wrote.
Lamberth, an appointee of President Ronald Reagan, quoted President Barack Obama’s comment at a speech in May, in which the president said his administration will insist that judicial review be available for every Guantanamo detainee. The judge wrote that the actions of Obama’s commanders at the military-run prison for terrorist suspects at Guantanamo can’t be squared with that.
The detainees had complained that guards had recently begun touching and holding detainees’ genital and anal areas during searches.
Detainee lawyers say the searches began after prisoners were told they would have to travel offsite to meet with their lawyers at another location at the U.S. Navy base in Cuba, rather than at the camps where they are housed. The lawyers say some detainees had refused to make the trip because of the new searches.
The government said that detainees are searched twice when they make the trips — going and returning — but a lawyer for one of the detainees said it’s four times.
In addition to ending the genital searches, Lamberth ordered the government to allow detainees who are weak because of their participation in an ongoing hunger strike, or those who have a medical condition that makes it difficult to travel outside the camp, to be allowed to meet with their lawyers at the housing camp. Just over 100 of the 166 prisoners remaining at Guantanamo have been on a hunger strike for four months to protest their indefinite detention.
Lamberth wrote that Guantanamo’s meeting and search procedures “flagrantly” disregard the need for sensitivity concerning religious and cultural matters.
“We are reviewing the judge’s ruling to determine a way forward,” said Lt. Col. Todd Breasseale, a Defense Department spokesman.
Brent Rushforth, a lawyer for two of the detainees, said that the Obama administration “is flouting the rule of law as recognized by the Supreme Court. Judge Lamberth’s decision sets that right.”
The government argued that the old way of searching was contrary to the military’s standard procedure and decreased the searches’ effectiveness; that the change in policy was recommended after a detainee committed suicide, possibly after hoarding medications in his groin area; and that the transition of detainees from communal living to single-cell housing revealed contraband such as homemade weapons.
Lamberth rejected the first two out of hand. He said the third justification, viewed in isolation, did appear to reasonably advance legitimate security interests. But he said that repeated actions by the government to deter detainee access “substantially increase the likelihood that its justification is mere pretext and that the new searches represent an ‘exaggerated response’ to its legitimate interest in security of the detention facility.”
He cited the government’s attempt last year to restrict access to detainees whose bids to challenge their confinement had been denied or dismissed (which Lamberth overturned in an earlier ruling), as well the reduction in flights to Guantanamo, which he said has led to two-month waits for lawyers to meet with their clients. In that context, the judge wrote, searching the genitals of detainees is “excessive.”
Lamberth noted that in his speech in May, Obama also quoted Judge William Young, who in sentencing shoe-bomber Richard Reid told him, “The way we treat you … is the measure of our own liberties.”
Lamberth wrote: “Judge Young’s comment is equally apt when applied to the detainees at Guantanamo.”