A federal appeals court on Wednesday suspended a lower court's decision last week barring Guantanamo guards from conducting the "religiously and culturally abhorrent" procedure of searching prisoners' genitals when they leave their cells to meet with attorneys and return to the prison camp.
The move comes just as a congressional committee is gearing up to hold its first significant hearing since 2009 to shutter the detention facility where 166 men have been detained since 2002 and as a mass hunger strike, now in its fifth month, appears to be winding down as some of the prisoners have been returned to communal living. Over the past week, 28 prisoners quit the hunger strike, according to the military, however, 46 are still being force-fed.
In court documents filed late Tuesday evening in US District Court for the District of Columbia, the Justice Department said prisoners may commit suicide and guards may be seriously hurt if the military was forced to stop searching prisoners' genitals. The government sought temporary relief from the three-judge appeals court panel hours after it sought to freeze the lower court's decision.
The government submitted a dramatic sworn declaration from Marine Gen. John Kelly, the commander of United States Southern Command (SOUTHCOM), which has oversight of the joint task force that operates Guantanamo to make its case. Kelly spoke of the "irreparable harm" that would result if the prohibition on genital searches were to stand. Kelly included two photographs in his declaration of items characterized as "contraband" allegedly confiscated from prisoners in April and late last month, including a ballpoint pen "metal shanks" and "12 MP3 players with audio recording capabilities."
"The principal danger posed by the Order is the increased risk that potentially dangerous contraband will be introduced into the camps," by prisoners who will conceal the items in their genital area, states the government's motion to stay. "Three dangers are evident from these concealments. First, if detainees can smuggle weapons or weaponizable items into their residential camps, the weapons can be used to attack and injure other detainees or the guards. Second, if detainees possess such items in their camp and can smuggle such weapons out of the camp, they present a potential threat to not only the guards, but also to any persons with whom detainees may be visiting. Lastly, if a detainee is determined to commit suicide, these items can be used to assist in that attempt."
The government argued that the prisoners gain access to the "weaponizable items," identified as "tempered steel, wires, and nails," by picking it up off of the ground or someone could give it to them when they are transported to meet with their attorneys, representatives for the International Committee of the Red Cross (ICRC) or transported to the detention hospital. But the government did not explain how prisoners are able to do that given that they are shackled and escorted by guards when they are taken to those meetings.
Last week, Judge Royce Lamberth issued a scathing 35-page opinion that said the new protocols implemented by Guantanamo officials in April under the guise of security were actually intended to block prisoners' access to the lawyers and noted that the "government is a recidivist when it comes to denying counsel access."
Kelly denied that was the case.
"To be very clear, at no time during this or any other period during my command was the idea of limiting detainees' access to legal counsel considered or even discussed, and certainly not as a reason for adopting the standard search procedure or any decision made regarding the secure operation of the detention facilities at Guantanamo," he wrote in his declaration.
Lamberth described how guards conduct the "humiliating" genital search in his order.
He said guards are instructed to search a detainee's genital area "by placing the guard's hand as a wedge between the [detainee's] scrotum and thigh and using [a] flat hand to press against the groin to detect anything foreign attached to the body.'"
Moreover, guards use "a flat hand to frisk the detainee's buttocks to ensure no contraband is hidden there."
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In an interview with Al Jazeera last month, US Air Force Capt. Justin Swick, an attorney for Algerian Sufiyan Barhoumi, said the prisoner was so emotionally disturbed by having his genitals groped prior to his meeting with Swick that it impacted the entirety of their discussion.
"I have seen him upset before but I have never seen him as upset as he was" after the genital search, Swick said. "There has never been a search like that before. [Barhoumi] felt the guard did it to be vindictive. He had trouble with this particular guard before. One guy he had problems with put his hands on the inside of his pants. It was the first time he was visibly angry. He was so upset with what he went through that we couldn't even have a productive attorney-client meeting, which upset me."
Swick said Bahroumi decided to be subjected to the genital search at the time because he enjoys interacting with people" and looked forward to meeting with Swick, especially after being placed in solitary confinement. On Wednesday, hours after the appeals court upheld the genital searches, Bahroumi declined to meet with Swick, who is in Guantanamo this week to see his client.
Pardiss Kebriaei, an attorney with New York City-based Center for Constitutional Rights, told Al Jazeera in June one of her clients was also disturbed after he was subjected to the genital search and it resulted in an unproductive meeting.
"I met with Sabry Mohammed, a Yemeni man who is cleared for release. He was searched four times on the way to meet me and four times on the way back to Camp 6," she said. "Sabry said. "When we started our meeting it took 30 minutes for him to calm down. His thoughts were scattered. He couldn't focus. He told me its 'very hands on' when guards search his private area. He showed me with his hands what they do. He had to force himself to decide he was going to go through the searches because he wants to meet."
The new policy detracted from long-standing procedures that prohibited the touching of prisoners' genitals due to cultural sensitivities. 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."
In his order, Lamberth ordered the military to return to the previous protocol. But Kelly said in his declaration, the task force report "did not describe the full modified search procedure, so it is not clear exactly what the modified search procedure entails as envisioned by the 2009" report.
Rather than being subjected to genital searches, prisoners declined to meet with their attorneys or speak to them by telephone. Guantanamo attorneys then filed a lawsuit alleging the prisoners' habeas corpus rights were being violated as a result of the genital search policy.
But the government maintains that the military has been very accommodating to the Guantanamo attorneys and finds it difficult to believe that the genital search policy has had an impact on their access to the prisoners.
"As the record establishes, from January through May of this year, over 193 attorney visits were scheduled. And from March through May of this year, approximately 100 calls between detainees and their habeas counsel have occurred, almost as many that occurred in all of 2012," the government said in its motion.
Cori Crider, the strategic director for UK-based human rights group, Reprieve, which represents more than a dozen Guantanamo prisoners said, "This is contempt of court, pure and simple."
The [Latif] report found that the prohibition against searching a detainee's groin area created 'extraordinary opportunities for detainees to conceal contraband should they choose'
The government said in its motion the Military Commissions Act prohibits the courts from weighing in on conditions of confinement at Guantanamo and therefore Lamberth lacked the authority to halt the genital searches.
"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's motion states.
The government filed its motion to stay hours after Jennifer Cowan, an attorney for prisoner Hayal Aziz Ahmed Al-Mithali, sought emergency relief from the court upon being informed by a Justice Department attorney earlier in the day via email that Al-Mithali would be subjected to the genital search and that the government intended to ask Lamberth to put his order on hold. Cowan was scheduled to speak by telephone with Al-Mithali Wednesday afternoon.
"DoD has informed us that it is not in a position to apply [Lamberth's] order with respect to your scheduled telephone calls tomorrow," states the email written by the Justice Department's Terry M. Henry. "Accordingly, should you wish to proceed with your scheduled call tomorrow, the [genital] search and other procedures utilized by [Joint Task Force-Guantanamo] in the move of Mr. al-Mithali to the telephone call site will need to be those standard procedures currently in use, and we would ask that you consent that [Joint Task Force-Guantanamo] may utilize those procedures for the call. If you cannot consent to the use of such procedures, we would ask that you postpone the telephone call for at least several days pending further action on the forthcoming motion to stay.
"If you wish to postpone your call, please let us know as soon as possible… Otherwise, please indicate your consent as requested above. If you proceed with the call, DoD will contact you regarding your request to move it to tomorrow afternoon."
Cowan did not agree to delay her call nor did she consent to the genital search procedures. Her emergency motion asks Lamberth to enforce his order. If Lamberth did not put his order on hold by Wednesday afternoon the government said it would ask the US Court of Appeals for the DC Circuit to do so.
Lawsuit followed exclusive reporting
As first reported by Al Jazeera in May, Guantanamo officials began subjecting all prisoners who leave and return to their cells to speak with their attorneys to multiple genital searches. The decision followed a pre-dawn raid during the height of a mass hunger strike at the communal Camp 6 involving more than 100 prisoners who were moved into solitary confinement.
At the time, a prison spokesman, Navy Capt. Robert Durand, told me that a wide-range of banned items was found in prisoners' cells, including crude weapons fashioned out of plastic water bottles, mp3 players and iPods.
Kelly said if the military is forced to comply with the genital search ban it will "complicate recent efforts to return detainees to communal living based upon their compliance with camp rules."
He said that if genital searches are prohibited when prisoners leave and return to their cells than "we have to conduct more frequent full-frisk searches of the entire population to ensure an acceptable level of prison safety."
"This necessary step will likely result in strong resistance from the detainees, leading to disciplinary problems, and thereby jeopardize their return to communal living status," Kelly wrote, adding that 30 prisoners have returned to communal living over the past two weeks.
Genital searches linked to death of prisoner
Kelly, in his declaration, linked the decision to implement genital searches to the death last September of Yemeni prisoner Adnan Latif, who the military said committed suicide by hoarding a lethal dose of anti-psychotic medication. Kelly was named commander of SOUTHCOM two months after Latif died.
A military investigation found that Guantanamo guards contributed to Latif's death by failing to follow numerous protocols set forth in the facility's SOPs; yet no one has been held accountable or faced disciplinary action in the case, according to a copy of the military's report I obtained under a Freedom of Information Act request.
The report also details a widespread breakdown of safeguards, as Al Jazeera documented in a lengthy report last week, and procedures at the prison facility, where even prohibitions against feeding wildlife were not followed, which Kelly omitted from his declaration.
Kelly's declaration "unredacts" parts of the report into Latif's death pertaining to certain search procedures, specifically genital searches.
"The [Latif] report found that the prohibition against searching a detainee's groin area created 'extraordinary opportunities for detainees to conceal contraband should they choose,'" Kelly wrote, referring to the portion of the Latif report that was blacked out.
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"The report also included a recommendation that 'the [Joint Detention Group] Commander revisit the issue of whether to continue to prohibit guards from conducting searches of the area from the waist to above the knee of the detainees,'" he added. " The report goes on to say this 'matter relates directly to the opportunities for detainees to hide medications in the area.'"
Kelly said the report's findings were of "particular import and concern to both [Joint Task Force-Guantanamo] and me because of the potential for additional deaths if we did not revise the search procedures to address this issue."
He characterized the genital search as a "standard Army search (pat-down)" and said it was implemented "in light of Latif's death."
"The risk was no longer acceptable in light of the suicide of Adnan Latif and other recent events discussed here," Kelly wrote.
He said the Latif investigation was conducted by "an objective senior officer in the rank of Colonel who was not assigned to [Joint Task Force-Guantanamo] or to the Joint Detention Group." The investigation involved interviews with "38 persons and the assembly and review of more than 80 documents over the course of approximately 2 months."
Kelly said Col. John Bogdan, the commander of the prison's Joint Detention Group, who acts as the warden of Guantanamo, told him the failure to search detainees' genitals "could result in contraband being hidden in that area."
Kelly said Bogdan believed the return to genital searches was appropriate in an effort to prevent additional suicides and to stave off the alleged flow of "contraband" into and out of the cells and that he agreed.
Kelly said the genital searches were implemented in four phases beginning last November. What started out as four genital searches has now decreased to two, Kelly said. The SOUTHCOM commandr took issue with Lamberth's opinion, which described the policy as "merely an afterthought" because it was fully implemented six months after Latif died.
Two photographs Kelly included in his declaration that contained a wide-range of "contraband" items allegedly confiscated from prisoners in late June was used to as way to demonstrate to the court why such aggressive security measures must remain in place. However, At least one item, a pair of Oakley sunglasses, is "standard Army issue," according to former Guantanamo guard Joseph Hickman, leading him to believe that guards are either providing the prisoners with some contraband, planting the material in their cells or are just being sloppy and the prisoners are "paying the price by being punished."
"The other item in the first photograph that looks like a hook is actually a used to by the military to repel from ropes or cliffs or helicopters," Hickman said. "It's not standard military issue but that's what the military buys. If they're air assault qualified like I am than they buy those. My point is how would all of that end up in a detainee's cell?"
Kelly suggested in his declaration that Guantanamo attorneys are responsible for giving their prisoner clients prohibited items.
"Outside visitors appear to be one of the likely sources of the contraband that [Joint Task Force-Guantanamo] has discovered, particularly items not normally found in the camps such as electronic devices, food items, and non-issue clothing," Kelly wrote in his declaration.