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US court delays Guantanamo genital search ban

July 17, 2013

WASHINGTON (AP) — A federal appeals court is allowing the U.S. government to continue genital searches of Guantanamo Bay detainees — at least temporarily.

A three-judge panel of the court Wednesday granted the Obama administration’s emergency motion for a temporary delay in enforcing U.S. District Court Judge Royce Lamberth’s order banning the practice.

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. The lawyers say some detainees had refused to make the trip because of the new searches.

The Justice Department had asked the U.S. Court of Appeals to rule by 1 p.m. Wednesday — an hour before a scheduled telephone call between a detainee and his lawyer that the government wanted conducted under rules Lamberth had banned — including searching the detainee’s groin area for contraband.

But the appeals court didn’t rule in time, and the lawyer, Jennifer Cowan, said that prior to the appeals court ruling, the government agreed not to conduct the genital searches in connection with that call.

Cowan said in an interview after the 90-minute call that her client told her through a translator that he was “delighted” not to have his genitals searched on the way to the call — but was disappointed when she told him about the appeals court order.

Cowan said she too was disappointed.

“The district court merely ordered them to revert to the protocol that had been in place for many years, so that could have stayed in place while the appeal is pending,” Cowan said.

The three appeals court judges — Judith W. Rogers, Janice Rogers Brown and Brett M. Kavanaugh — made their decision in a short order, without elaboration. Rogers was nominated by President Bill Clinton, a Democrat, and the other two were appointed by President George W. Bush, a Republican.

In court papers, the government argued that Lamberth’s order would weaken security at the U.S. Navy base in Cuba by making it harder to prevent smuggling of contraband. And it said that the ruling went where no other court has gone before.

“For the first time to the government’s knowledge, a federal court has restricted a military commander from implementing routine security procedures at a detention facility holding enemy forces, notwithstanding the universally recognized need for the maintenance of discipline and order in those facilities,” the government wrote in its motion with the appeals court.

The filings included a declaration from the head of U.S. Southern Command, Gen. John Kelly, who wrote that the military decided searching the groin areas of detainees was necessary after the suicide of a detainee who had hoarded medications and died of an overdose. Kelly said that a report on the suicide concluded that the ban on genital searches created opportunities for detainees to conceal contraband.

Kelly said he fully concurred with the decision to search detainees’ groin areas before or after any movements outside their resident camps. He said that no one ever discussed the idea of limiting the detainees’ access to lawyers, which Lamberth had said was the real reason for the new searches.

Kelly said that contraband items discovered in the camps include nails, shanks, ballpoint pens and MP3 players. The filing includes photos of some of these and other objects.

Prohibiting a search of the groin areas of detainees, Kelly wrote, “would virtually guarantee them a secure location in which to secret these sorts of items after movements outside the camps. I consider this an unacceptable risk to the military personnel under my command, as well as the detainees, and civilian visitors, for whose safety and well-being I am responsible.”

In his ruling last week, Lamberth, an appointee of President Ronald Reagan, 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.

He also said that what he called repeated actions by the government to deter detainees’ legal access increased the likelihood that the government’s security rationale for the genital searches “is mere pretext and that the new searches represent an ‘exaggerated response’ to its legitimate interest in security of the detention facility.”


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