Attorneys defending more than a dozen Guantanamo prisoners have asked a federal court judge to immediately suspend a new policy enacted at the detention facility over the past month that requires the prisoners to submit to a genital search when they exit the camps to speak with their lawyers and return to their cells.
In an emergency motion filed late Wednesday in US District Court for the District of Columbia, attorneys for Yemeni Saeed Mohammed Saleh Hatim and 12 other prisoners argued the intent of the new policy was to deny their clients access to counsel and was implemented in retaliation for a mass hunger strike the prisoners have waged since February.
The filing also includes declarations from attorneys alleging prisoners have been subjected to psychological abuse in the form of solitary confinement, stress positions, sleep deprivation and temperature manipulation.
"Things are very hard in the extreme," Yemeni prisoner Bisheer al Marwalah told his attorney, Erin Thomas, according to a declaration she filed. "We no longer have any respect in this prison. They don't respect our life, our dignity, they don't respect our religious feelings ... As for tomorrow, we have no idea what it will bring."
A Guantanamo spokesman was unavailable late Wednesday to comment on the court filing.
The emergency motion was filed on the eve of President Barack Obama's hotly anticipated speech in which he will discuss his counterterrorism policies and his plans to shutter the prison at Guantanamo and begin releasing prisoners, like Hatim, who have been cleared for transfer.
According to the court filing, rather than submit to humiliating genital searches, the prisoners have refused to meet in person with their attorneys or speak with them on the telephone.
'No legitimate purpose'
"The new policies have no legitimate purpose, but are pretextual, imposed in order to chill the right of access to counsel," the court filing states. "Indeed, one guard has admitted that the purpose of the physical searches and the treatment inflicted upon detainees during transportation from their cells was to deter detainees from speaking with their counsel or their families. These new procedures come on the heels of an attempt to deny counsel access to any detainee without an active habeas petition, an attempt rejected by this Court last September …"
Moreover, attorneys' requests for Guantanamo legal officials to meet with the prisoners in the two main detention camps where they are detained - Camps five and six - as a way of bypassing the search, has been rejected. They want a judge to authorise meetings in those camps in addition to suspending the genital searches.
Navy Captain Robert Durand, a Guantanamo spokesman, confirmed to Al Jazeera last week the new policy introduced earlier this month in an effort to stave off the alleged flow of "contraband" in and out of the detention camps. A copy of Al Jazeera's report is one of the exhibits attorneys filed along with their emergency motion.
| This video frame grab shows live streaming video of detainees' cells - some empty, while other frames show detainees pacing or sleeping, in Camp 6 at Guantanamo Bay Naval Base [AP]
Durand noted the search was not limited to prisoners' meetings or phone calls with their lawyers, but whenever a prisoner leaves the camp to go to another facility, such as the hospital or the behavioural health unit. He denied it was an act of retribution over the prisoners' hunger strike.
"It's not a strip search, it's not a cavity search, it's not a search where nudity is involved," Durand told Al Jazeera. "We call it a full frisk pat down. It is done quickly, professionally, just to see if anyone is secreting anything on their body. It does include the buttocks and groin area. But it is not any different than what we submit to at the airport when we're selected for a secondary pat down screening."
Far more intrusive
But in one of a half-dozen sworn declarations accompanying the emergency court filing, Jennifer Cowan, an attorney representing Yemeni prisoner Hayil Aziz Ahmed al-Mithali, said al-Mithali told her the genital search was far more intrusive than a patdown.
"Mr al-Mithali said that in his experience, the genital search involves the guards touching the detainee's penis, testicles and buttocks over their clothing," Cowan's declaration states. "Mr al-Mithali said that this search procedure was particularly offensive to him and other detainees in light of their religious beliefs."
As Al Jazeera reported last week , the new search policy is a departure from long-standing operating procedures (SOPs) that prohibited the touching of prisoners' genitals due to cultural sensitivities.
Indeed, according to a 2009 Defense Department task force review of the conditions at Guantanamo, "Due to cultural sensitivities, modified frisk searching procedures are in place that respect the detainee's groin area, and guards are not allowed to conduct frisk searches of this area. Guards are limited to grasping the waistband of detainees' trousers, and shaking the pants."
The voluminous report produced following the Defense Department's task force review said the commander of the Joint Detention Group at the time "recognises that the SOP does not permit searching of the Koran or detainee groin areas, which is contrary to standard security procedures in most detention facility operations, and that it carries a level of risk. However, he has accepted that risk out of an elevated respect for religious concerns of the detainees."
Cowan added that al-Mithali said prisoners "have been deprived of soap, toothpaste and comfort items for the past month and when he asked the guards why they are being punished, he was told ‘the colonel' is angry that they are on the hunger strike and that if they stop the hunger strike, things will get back to normal again."
Al-Mithali is one of the prisoners who have met the criteria for force-feeding. His account closely matches the story Yemeni prisoner Salman Rabeii told his attorney David Remes, a Washington, DC-based human rights attorney who represents more than a dozen Guantanamo prisoners. In a declaration filed by Remes, he said Rabeii told him, "When they search you in Camp 6, the guards hold your privates. One guard said that the Colonel ordered it. Another guard said, ‘If you want to stop it, stop your hunger strike.'"
The colonel Rabeii and Al-Mithali are referring to is Colonel John Bogdan, the warden of the prison who commands the Joint Detention Group. This week, military defense attorneys said in a letter to Secretary of Defense Chuck Hagel that Bogdan was responsible for "a serious degradation in the quality of life for detainees at Guantanamo Bay over the past year".
In his declaration, Remes also singled out Bogdan.
"The new command's approach has shattered the calm that had prevailed since 2009, brought chaos rather than order to the prison, and led to a general hunger strike now well into its fourth month, with devastating consequences for the desperate prisoners and no end in sight," his declaration states. "The new command has reestablished Guantanamo as a symbol of American injustice and reignited demands that it be closed."
Prisoners have also described for Remes "other means by which the [Guantanamo] command is seeking to break the hunger strike by making the men's lives as miserable as possible", according to his declaration.
"The Joint Detention Group, which runs the prison, recently found a new way to make the journey [to meet with attorneys] even more difficult for a detainee. Detainees are moved from their camps to Echo or Delta [where they speak with their lawyers, either in person or on the telephone], or other facilities, in windowless, white cargo vans, which outwardly resemble the 2013 GMC Savana 1500 Cargo Van. Detainees enter and leave the van through double doors in the back. According to my clients, the ride from the detainee's camp to Echo takes about 10 minutes but "much longer" to Delta and adjoining facilities. At the end of March, it appears, [Joint Task Force] replaced the regular vans with vans that have too little interior headroom to permit a detainee to sit upright, forcing him to ride the bumpy roads with his back and neck bent. Thus, a detainee wishing to meet with his lawyer or have calls with his lawyer or family has to travel in a stress position, in addition to submitting to an intrusive and humiliating body search."
Declarations filed by other attorneys' include identical stories prisoners have told their lawyers about the transportation van.
"It seems clear that the real aim of the new policy on body searches and the requirement to use only Camp Echo for meetings (thus requiring a painful trip in a van, while shackled and in a stress position) is to reduce significantly detainees' access to counsel and to the outside world. In any case, that is its effect," the emergency motion states.
Remes said the hunger strike has taken a grave toll on the prisoners he represents. Rabeii, the Yemeni prisoner, has lost 30 kilograms since he first joined the protest in February over the introduction of another policy: Quran inspections.
"All were painfully thin and drawn in March, and more so in May," he wrote in his sworn declaration. "They are shadows of the men I knew."
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