Lawyers for detainees held at Guan­tanamo Bay, Cuba, say a new search policy adopted earlier this year put their clients in an impossible situation: submit to religiously and culturally offensive groin-area frisks, or forgo meeting with attorneys.

A federal trial judge blocked the new policy in July, finding it violated the detainees’ right to communicate with their lawyers. The U.S. Court of Appeals for the D.C. Circuit is set to hear arguments this month on whether the judge had authority to forbid the searches.

The U.S. Department of Justice says U.S. District Senior Judge Royce Lamberth lacked jurisdiction to interfere. Instead of groin-area searches, Lamberth said, guards were limited to shaking a detainee’s pants to check for contraband.

Lamberth’s decision “to reach deep into a military detention facility and replace a military’s commander’s judgment of what risks are acceptable with a judicially determined standard is unprecedented,” Justice Department lawyer Edward Himmelfarb wrote in the government’s brief.

Lawyers for detainees counter that Lamberth acted solely to protect detainees’ right to counsel — an area the U.S. Supreme Court has said falls under the court’s jurisdiction.

For detainees challenging their detention, not having access to a lawyer “makes it difficult and in some cases impossible to pursue their cases,” said Covington & Burling senior counsel S. William Livingston, a lawyer for detainees who will argue in the D.C. Circuit. “They’ll be greatly hampered in pursuing habeas relief.”


The D.C. Circuit allowed the groin-area searches to continue while the government’s appeal is pending. David Remes, an attorney with Appeal for Justice who represents detainees, said when he traveled in November to Guantanamo Bay, five of the 10 clients he was supposed to see canceled their meetings. He said his clients blamed the new search policy in letters or via other detainees.

“The effect is intolerable because one way or another, the military simply can’t be allowed to take actions that depress the men’s exercise of their constitutional rights,” Remes said.

Representatives of the Justice Depart­ment and U.S. Department of Defense declined to comment. Himmelfarb will argue for the government.

Before May 2013, guards could only search a detainee’s groin area with permission from the commander, out of respect for the prisoners’ religious and cultural sensitivities. Of the 164 detainees held at Guantanamo, almost all are Muslim, according to court filings. The new search policy adopted in May called for a full-body frisk before detainees met with lawyers or other visitors or took phone calls.

In documents filed with the court, Col. John Bogdan, commander of the Joint Detention Group at Guantanamo Bay, said the suicide of a detainee who hoarded medications and discovery of contraband, including homemade weapons, in detainees’ cells prompted the changes.

The Justice Department said Congress explicitly stripped courts of jurisdiction to hear cases about the confinement conditions of individuals held as enemy combatants. The frisks at issue “are classic conditions of confinement,” the government said in its D.C. Circuit brief.

Lawyers for the detainees said they aren’t challenging general confinement conditions, but rather the narrow issue of whether detainees can exercise their right to meet with attorneys. They alleged the policy was punishment for a hunger strike and said the suicide and discovery of contraband were a pretext, noting there was no evidence lawyers for detainees ever smuggled in contraband.

David Muraskin of McKool Smith, a lawyer for detainees, said he hoped the D.C. Circuit recognized the link between access to lawyers and access to the courts. “The district court made a factual finding that the administration’s justification for these search procedures could not be substantiated,” he said.

Lamberth “recognized that the search policy was causing a number of the detainees not to meet with their lawyers and depriving them of access to counsel, and he saw no justification for that,” Livingston said.

Bogdan denied the new search policy was aimed at restricting detainees’ ability to meet with counsel. In court papers, the government said that if Lamberth did have jurisdiction to weigh in on the search policy, he was wrong to go beyond the government’s stated reasons for adopting it.

“The government is not required to show specific instances in the past in which visitors, including specifically detainee counsel, were responsible for smuggling contraband,” the government’s lawyers wrote. The Justice Department argued officials only had to show there was a “rational” relationship between the policy and a legitimate governmental interest — in this case, security at Guantánamo Bay.

Chief Judge Merrick Garland and judges Karen LeCraft Henderson and Thomas Griffith will hear the case on Dec. 9.

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