A three-judge panel of the U.S. Court of Appeals for the District of Columbia grilled the Department of Justice (DOJ) lawyers this week on the need for genital searches of Guantanamo detainees. Judge Thomas Griffith commented on genital searches as “rather provocative and offensive.”
Edward Himmelfarb, representing the Department of Justice tried to convince the judges that contraband had been discovered in June at the base during the time the genital searches were made. However, under intense grilling by the court, he broke down and admitted that the discovery of the contraband was not related to the genital searches; though it didn’t prevent him from trying to mix up the two.
In July, U.S. District Court Judge Royce Lamberth had ordered the government to stop the genital searches conducted for prisoners who wanted to access lawyers. Many prisoners found such touching to be offensive to their religious and cultural beliefs and chose to forego their meeting with lawyers than be exposed to the trauma.
Lamberth had concluded that the motivation for the genital searches of prisoners conducted by the government was not to enhance security, as the government claimed, but to discourage detainees from meeting lawyers. The genital searches were creating a situation where many detainees had to choose between foregoing their faith and foregoing legal help. But the decision to stop genital searches at Guantanamo was put on a stay while the case went before the appeals court.
The DOJ argued that Lamberth did not have sufficient jurisdiction to hear the case as it involved conditions of confinement and not questions of access to counsel. The government also argued that as a U.S. District Court Judge, Lambert erred in questioning the motives of Guantanamo commanders. In its court filing, the Department of Justice clearly observed, “characterization of the security rationale as a pretext was essentially an unsupported accusation that Colonel Bogdan lied under oath.”
While the arguments continue, the appeals court has already made it clear that the government has a special obligation to preserve detainee’s access to counsel.