Hatim v. Obama

• Decision Date: 01 August 2014
• Docket Number: 13–5220,Nos. 13–5218,13–5221.,s. 13–5218
• Citation: 760 F.3d 54
• Parties: Saeed Mohammed Saleh HATIM, Detainee, Camp Delta, et al., Appellees v. Barack OBAMA, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

760 F.3d 54

Saeed Mohammed Saleh HATIM, Detainee, Camp Delta, et al., Appellees

v.Barack OBAMA, et al., Appellants.

Nos. 13–5218, 13–5220, 13–5221.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 9, 2013.

Decided Aug. 1, 2014.

Recognized as Unconstitutional

28 U.S.C.A. § 2241(e)(1)

Appeals from the United States District Court for the District of Columbia, (No. 1:12–mc–00398) (No. 1:05–cv–01429–UNA) (No. 1:06–cv–01766–RCL) (No. 1:07–cv–02338–RCL).

Edward Himmelfarb, Attorney, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Stuart F. Delery, Assistant Attorney General, and Matthew M. Collette, Attorney. Ronald J. Whittle, II, Attorney, entered an appearance.

S. William Livingston argued the cause for appellees. With him on the brief were Brian E. Foster, David H. Remes, Brent Nelson Rushforth, and David Muraskin. Alan A. Pemberton entered an appearance.

Before: GARLAND, Chief Judge, and HENDERSON and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge:

Guantanamo Bay detainees challenge two new policies they claim place an undue burden on their ability to meet with their lawyers. The district court upheld the detainees' challenge, but we reverse, concluding that the new policies are reasonable security precautions.

I

The first challenged policy concerns where the detainees may meet with their lawyers. In the past, detainees at Guantanamo Bay would meet with visitors in nearby Camp Echo, to which they were driven in vans, or occasionally in Camps 5 and 6, the camps where most detainees are housed. Meetings in the housing camps would take place in small interview rooms with a guard posted outside the door. It is easier to monitor detainees' meetings with visitors in Camp Echo. There is no need to post a guard outside each meeting because the interview rooms are equipped with video-monitoring equipment, and visitors can summon a guard at the touch of a button. The Camp Echo rooms are also larger than those in the housing camps and include restroom facilities and space for prayer, which means that guards need not move detainees to other rooms mid-meeting to use the bathroom or worship, as they must in the housing camps. Citing the ability to provide more security with fewer guards at Camp Echo, in September 2012 the government implemented a new policy that required that all detainee meetings with visitors take place there instead of in the housing camps.

The second challenged policy involves the search the detainees must undergo when meeting with their lawyers. It has long been Guantanamo policy that detainees are searched both before and after any meeting with a visitor. Standard protocol in military prisons calls for a non-invasive search of the genital area of a prisoner. In the past, searches at Guantanamo departed from that element of the protocol in an effort to accommodate the religious sensibilities of the detainees. Under the old policy, guards would grasp a detainee's waistband and shake his pants in an attempt to dislodge any items that might be hidden, careful to avoid contact with a detainee's genital area. Concerns arose that not searching the genital area was posing a security threat. Those concerns escalated with the suicide of a detainee who took an overdose of medication that he had smuggled into his cell and the discovery of shanks, a wrench, and other weapons in the housing camps that had evaded the searches.

In May 2013 the government revised the search procedures for Guantanamo to conform to standard military prison procedure. According to the protocol, the guard places his hand as a “wedge between the scrotum and thigh, and us[es] the flat hand to press against the groin to detect anything foreign attached to the body. A flat hand is used to ensure no contraband is hidden between the buttocks.” The guard also passes a hand-held metal detector a few inches over the detainee's body, including the area of his groin and buttocks. At no time is the detainee's groin visually exposed to the guard.

Detainees challenged these two new policies in habeas corpus proceedings in district court, arguing that they have the purpose and effect of discouraging meetings with their counsel. The detainees claimed that their poor health made it difficult to make the trip by van to meet with their lawyers in Camp Echo and that their religious beliefs made it impossible to meet with counsel at all if genital searches were required to do so. The detainees sought an order permitting them to meet with counsel within the housing camps and without being subject to the new search procedures.

The district court granted the detainees' motion in part. The district court found that the new procedures were an exaggerated response to overstated security concerns, concluding that the rationales offered by the government were but a pretext for the real purpose, which was to restrict detainees' access to counsel. The court entered an order barring use of the new search procedures when meeting with counsel. It also ordered that ill and injured detainees be allowed to meet with their lawyers in the housing camps instead of in Camp Echo. See In re Guantanamo Bay Detainee Litig., 953 F.Supp.2d 40, 59–61 (D.D.C.2013). The government appealed, and we stayed the district court's order pending resolution of this appeal.

II

There is no doubt that we have jurisdiction over an appeal from a district court order granting injunctive relief, 28 U.S.C. § 1292(a)(1); see also Salazar ex rel. Salazar v. District of Columbia, 671 F.3d 1258, 1261–62 (D.C.Cir.2012), but there is a question in this case whether the district court had jurisdiction to issue that order in the first place. Congress has granted district courts jurisdiction to hear habeas claims. 28 U.S.C. § 2241(a); see also Rasul v. Bush, 542 U.S. 466, 481, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004) (holding that § 2241 extends to Guantanamo detainees). But in the Military Commissions Act of 2006(MCA), Congress barred the federal courts from hearing the habeas claims of Guantanamo detainees. 28 U.S.C. § 2241(e)(1). The MCA also stripped the federal courts of jurisdiction over “any other action ... relating to any aspect of [their] detention, transfer, treatment, trial, or conditions of confinement.” Id. § 2241(e)(2).

In Boumediene v. Bush, the Supreme Court invalidated subsection (e)(1)'s ban on habeas claims of Guantanamo detainees, 553 U.S. 723, 792, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), but (e)(2) remains a bar to any “other action” by detainees, see Al–Zahrani v. Rodriguez, 669 F.3d 315, 319 (D.C.Cir.2012). Thus, the district court has jurisdiction under § 2241(a) to hear the detainees' habeas challenges, but is prohibited by (e)(2) from hearing any of their other claims. The government contends that the detainees' claims in this matter do not sound in habeas and are therefore barred by (e)(2) because they relate to their “treatment” and “conditions of confinement.” The district court found jurisdiction, holding that the alleged interference with access to counsel infringed the right to habeas relief announced in Boumediene. See In re Guantanamo Bay Detainee Litig., 953 F.Supp.2d at 49–50.

We need not determine whether the district court's view of the scope of habeas is correct, for this challenge falls squarely within the jurisdiction we recognized recently in Aamer v. Obama, 742 F.3d 1023 (D.C.Cir.2014). In Aamer, we held that challenges to conditions of confinement can properly “be raised in a federal habeas petition under section 2241,” and when so raised are not barred by (e)(2)'s prohibition on non-habeas actions. Id. at 1030, 1038. The government has expressly conceded that the procedures challenged by these habeas petitions are “conditions of confinement.” Br. of Appellant at 17–19. The district court thus had jurisdiction under Aamer, and we need not address other jurisdictional theories.

III

We review constitutional challenges to prison policies under the test announced by the Supreme Court in Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). This deferential standard applies to military detainees as well as prisoners. See Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, ––– U.S. ––––, 132 S.Ct. 1510, 1518, 182 L.Ed.2d 566 (2012) (applying the Turner test in the context of pre-trial detention); United States v. White, 2014 WL 354661 (N.M.Ct.Crim.App. Jan. 31, 2014) (applying the Turner test to challenges to policies in a military prison); United States v. Phillips, 38 M.J. 641, 642–43 (A.C.M.R.1993)aff'd,42 M.J. 346 (C.A.A.F.1995) (same); see also Amatel v. Reno, 156 F.3d 192, 196 (D.C.Cir.1998) (observing that in the military context, the “government is permitted to balance constitutional rights against institutional efficiency” in a manner similar to the Turner test).

In Turner, the Supreme Court explained that although incarcerated individuals do not completely lose their constitutional rights, “problems of prison administration” allow the government to restrict those rights in ways that would be unacceptable for persons not incarcerated. To prevent judicial overreaching into matters of prison administration, courts are to uphold prison regulations that “impinge on inmates' constitutional rights” as long as those regulations are “reasonably related to legitimate penological interests,” id. at 84–85, 89, 107 S.Ct. 2254—a stark departure from the “inflexible strict scrutiny” analysis that normally applies when the government infringes on constitutional rights, id. at 89, 107 S.Ct. 2254.

Here, however, the district court took the view that Turner 's deference to reasonable prison regulations does not apply to habeas claims, holding that “[s]ince the right to seek habeas relief is not limited or withdrawn in the prison context, neither may the Executive or the Legislature circumscribe the petitioners' right.” In...