MEMORANDUM OPINION
I. INTRODUCTION
On May 23, 2013, President Obama promised, concerning detainees held at Guantanamo Bay, that “[w]here appropriate, we will bring terrorists to justice in our courts and our military justice system. And we will insist that judicial review be available for every detainee.” Remarks by the President at the National Defense University (May 23, 2013) (transcript available at http://www.whitehouse.gov/the-pressoffíce/2013/05/23/remárkspresidentnational-defense-university). This matter concerns whether the President’s insistence on judicial review may be squared with the actions of his commanders in charge of the military prison at Guantanamo Bay. Currently, it cannot.
■ Petitioners are detainees at Guantanamo Bay who are in the process of seeking habeas corpus relief and whose access to counsel is governed by this Court’s 2008 Protective, Order. Petitioners allege that the Joint Detention Group (“JDG”), the group responsible for detention operations within Joint Task Force-Guantanamo (“JTF-GTMO”), has instituted new search and procedures that impair petitioners’ access to legal counsel.
The petitioners’ unique circumstances render this case no ordinary challenge to prison regulations: At its heart, this case is about petitioners’ ability to invoke the
Upon consideration of petitioners’ Motions [37 and 38], the government’s Opposition [42], petitioners’ replies [44 and 45], the arguments presented at this Court’s open and sealed -hearings held June 5, 2013, the entire record herein, the applicable law, and for the reasons set forth below, the Court finds the JDG’s new procedures invalid as they pertain to access to counsel and will GRANT petitioners’ motions in part and DENY petitioners’ motions in part.
II. BACKGROUND
A. Procedural Background.
Before the Court is an Emergency Motion [37] to Enforce the Right of Access to Counsel filed by petitioners Abdurrahman Abdallah Ali Mahmoud al Shubati (ISN 224
Petitioners are at different stages in their respective habeas cases before the Court. A Shubati originally filed a petition for a writ of habeas corpus on December 31, 2007. See Pet. For Writ of Habeas Corpus, Al Shubati v. Obama, No. 07-CV-2338 (UNA) (D.D.C. Dec. 31, 2007), ECF No. 1. On March 11, 2013, this Court dismissed al Shubati’s petition without prejudice at petitioner’s and the government’s joint request. See Stipulation and Order Dismissing Pet., Al Shubati v. Obama, No. 07-CV-2338 (UNA),
B. Factual Background
Petitioners are housed within two separate “camps” within the Guantanamo detention facility. Resp’t’s Opp’n to Pet’rs’ Emergency Mots. Concerning Access to Counsel 6, June 3, 2013, ECF No. 42 (“Opp’n”). These camps — known as Camps 5 and 6 — are modeled after, and comparable to, maximum security prisons in the United States. Opp’n, Ex. 1, at ¶¶ 10,14, June,3, 2013, ECF No. 42 (“Bogdan Deck”). Previously, meetings between petitioners and habeas counsel took place in Camps 5 and 6, Hatim Mot. Ex. A, at ¶ 5, May 22, 2013, ECF No. 38-1, though the government contends that attorney-client meetings have not taken place in Camps 5 and 6 for some time. Bogdan Deck ¶¶ 9,13.
Currently, to meet with counsel or speak with counsel by phone, petitioners must travel from their housing camp to other buildings — known as Camps Delta and Echo — located nearby within the Guantanamo detention facility. Id. ¶22. Petitioners are transported to Camp Delta for all phone calls with counsel and to Camp Echo for all in-person meetings with counsel. Id. ¶¶ 5, 8. Camps Delta and Echo contain dedicated facilities for conducting detainee phone calls and meetings. For example, Camp Echo has specialized facilities to screen visitors, including attorneys, for contraband before they meet with detainees. Id. ¶ 6. ■ Moreover, Camp Echo has a centralized facility from which guards may visually monitor attorney-client meetings remotely, meaning guards need not sit outside the meeting room for the duration of the detainee’s meeting with counsel. Id. Similarly, Camp Delta has facilities “specifically designed and equipped for telecom operations.” Id. ¶ 8.
Camps 5 and' 6, by' contrast, lack dedicated facilities for phone calls. Id. ¶¶ 8-9. With respect to attorney-client meetings, Camp 6 at present has only two small rooms to accommodate such meetings, though Col. Bogdan, commander of the JDG, directed in September 2012 that those rooms would no longer be used for meetings between detainees and any non-JTF-GTMO personnel. Id. ¶¶ 13-16. In his sworn declaration, Col. Bogdan stated that Camp 5 has no rooms for attorney-client meetings. Id. ¶ 11. Nevertheless, according to a review of the Guantanamo detention facility prepared by Adm. Walsh in 2009, Camp 5 had “a climate controlled meeting room for legal representation.” Review of Department Compliance with President’s Executive Order on Detainee Conditions of Confinement 11 (‘Walsh Report”). It is unclear whether Col. Bogdan has since restricted the use of this room, as in Camp 6, or whether JTF-GTMO has repurposed the room, though what purpose could be greater than counsel access this Court cannot say. For security reasons, attorneys cannot meet with detainees on the cell blocks or within detainee cells in the housing camps. See Bogdan Deck ¶ 11. As a result, detainees must leave their cells and travel to Camps Delta and Echo for phone calls and attorney-client meetings.
The process of transporting detainees from their housing camps to Camps Delta and Echo requires that they be searched
On June 7, 2012, command of the JDG passed to Col. John V. Bogdan. Bogdan Decl. ¶ 1. On May 3, 2013, JDG revised its search procedures for detainees to comport with the standard army search procedure. Id. ¶ 18. This standard procedure includes frisking and wanding of the detainee’s groin area. Id. ¶20. As before, the search involves the guard grasping the detainee’s waistband and shaking it vigorously to dislodge contraband. Id. The new search protocol, however, adds several additional elements: First, the guard gathers and crushes the fabric of the detainee’s pants pockets to detect any objects in the pockets. Id. Second, the guard will search the detainee’s groin 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.” Id. Third, the guard uses a flat hand to frisk the detainee’s buttocks to ensure no contraband is hidden there. Id. Fourth, “a hand-held ‘wand’ metal detector ... is passed over the [detainee’s] body.” Id. ¶ 21. The wand search includes the detainee’s groin and buttocks area, and guards hold the wand about one to two inches from the detainee’s body while conducting the wand search. Id.
Under the JDG’s standard procedure, detainees are searched whenever (1) they are moved to a facility external to their housing camp or (2) they meet with any non-JTF-GTMO personnel. Id. ¶ 19. According to Col. Bogdan, all detainee searches are conducted twice — once before leaving the housing camp or before a meeting with non-JTF-GTMO personnel and a second time prior to returning to the housing camp or after the meeting. Id. ■However, during the sealed hearing held on June 5, 2013, counsel for petitioner AlMithali stated that detainees- are actually searched four times — once prior to leaving their cells, once upon arriving at the external facility or meeting room, once prior to leaving the external facility or meeting room, and once more upon returning to their cells. Sealed Hr’g Tr. 39, June 5, 2013. The JDG’s standard procedure requires searching detainees for all movements or meetings, including attorney meetings, phone calls with attorneys or family members, or medical appointments. Bogdan Decl. A 19.
For phone calls or attorney-client meetings, detainees must travel outside of Camps 5 and 6 to Camps Delta and Echo. Id. ¶21. The JDG transports detainees from Camps 5 and 6 to Camps Delta and Echo by van. Id. While traveling in the vans, detainees are restrained following standard military procedure using a 5-point fabric seatbelt harness. Id. On April 1, 2013, the JDG introduced several new vans as part of a routine equipment up
C. Legal Background
In a litany of rulings, this Court and the Supreme Court have affirmed that the, federal courts are open to Guantanamo detainees who wish to prove that their indefinite detentions are illegal. In 2004, the Supreme Court rejected the government’s argument that the federal courts had no jurisdiction to hear detainee habeas petitions. Rasul v. Bush,
These rulings raised significant questions about counsels’ access to detainees and classified information. This Court first began to address this problem in Al Odah, where Judge Kollar-Kotelly found that the Court had power “to fashion procedures by analogy to existing procedures, in' aid of the Court’s jurisdiction and in order to develop a factual record as necessary for the Court to make a decision on the merits of’ detainee habeas claims.
Judge Green’s protective order stood without objection for four years. In light of the Bomnediene decision in 2008, the members of this Court again determined that a single judge should rule on common procedural issues to facilitate the expeditious resolution of Guantanamo habeas cases. In re Guantanamo Bay Detainee Litig., Miscellaneous No. 08-442(TFH), Order [1] at 1-2, July 2, 2012. The Court designated Judge Thomas F. Hogan, like Judge Green, “to coordinate and manage proceedings in all cases involving petitioners presently detained at Guantanamo Bay, Cuba.” Id. All then-pending Guantanamo habeas cases, and all such cases thereafter filed, were transferred to Judge Hogan for case management and coordination.
This Court recently revisited Judge Hogan’s protective order as it pertained to detainees without any pending habeas petition before the Court. In re Guantanamo Bay Detainee Continued Access to Counsel,
III. STANDARD OF REVIEW
The foundation of the Supreme Court’s habeas jurisprudence is that the Great Writ lies at the core of this nation’s constitutional system and that it is the duty of the courts to remedy lawless executive detention.
Executive imprisonment has been considered" oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.
Rasul,
The duty imposed by the Great Writ requires the Judiciary to ensure that access to the courts is “adequate, effective, and meaningful.” Bounds v. Smith,
In the context of Guantanamo Bay habeas litigation, “access to the Court means nothing without access to counsel.” Al-Joudi v. Bush,
To say that Petitioners’ ability to investigate the circumstances surrounding their capture and detention is “seriously impaired” is an understatement. The circumstances of their confinement render their ability to investigate nonexistent. Furthermore, it is simply impossible to expect Petitioners to grapple with the complexities of a foreign legal system and present their claims to this Court without legal representation. Petitioners face an obvious language barrier, have no access to a law library, and almost certainly lack a working knowl■edge of the American legal system. Finally, this Court’s ability to give Petitioners’ claims the “careful consideration and plenary processing” which is their due would be stymied were Petitioners to proceed, unrepresented by counsel.
Al Odah,
Cognizant of both its duty to enforce the Writ and the context of Guantanamo habeas litigation generally, the Court now turns to the petitioners’ emergency motions for counsel access.
IV. JURISDICTION
The government contends that this Court lacks jurisdiction to address petitioners’ emergency , motions. “Federal courts are courts of limited subject-matter jurisdiction. A federal court created by Congress pursuant to Article III of the Constitution has the power to decide only those cases over which Congress grants jurisdiction.” Al-Zahrani v. Rodriguez,
As amended by Section 7(a) of the Military Commissions Act of 2006, the federal habeas statute provides, in relevant part,
(1) No court, justice, or judge shall have jurisdiction to hear or consider an appli*50 cation for a unit of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. (2) [N]o court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
28 U.S.C. § 2241(e)(l, 2) (emphasis added). However, the Supreme Court invalidated § 2241(e)(1) as an unconstitutional suspension of the writ, and thus this Court has jurisdiction over petitions for writs of habeas corpus. Boumediene v. Bush,
The instant litigation, however, is not a general' challenge to petitioners’ treatment or conditions of confinement. Instead, it is a narrow challenge to alleged government interference to petitioners’ access to counsel that prevents them from prosecuting habeas cases before this Court. Petitioners’ challenge falls squarely within the Court’s jurisdiction. The Supreme Court implicitly recognized that counsel access issues relating to habeas cases fall within the district court’s jurisdiction over habeas petitions. In Boumediene, the Supreme Court explained that it “ma[de] no attempt to anticipate all of the evidentiary and access-to-counsel issues that will arise during the course of the detainees’ habeas corpus proceedings These and ... other remaining questions are within the expertise and competence of the District Court to address in the first instance.”
Indeed, all the cases the government cites where this Court or the D.C. .Circuit has concluded it lacked jurisdiction under § 2241(e)(2) are inapposite. The present controversy is neither a request for a mattress and a blanket, see In re Guantanamo Bay Detainee Litig.,
The government’s reliance on Casey is misplaced. Quite contrary to the government’s conclusory statement that petitioners have made no showing of actual harm, Opp’n 19, the record is replete with examples of “past or imminent official interference with individual [detainees’] presentation of claims to the courts.” Casey,
In concluding that it has jurisdiction over petitioners’ motions, the Court notes that § 2241(e)(2) does remove the Court’s jurisdiction over any action by Guantanamo detainees other than (1) a petition for habeas corpus or (2) any attendant issues that arise under that petition, such as the counsel-access or evidentiary issues that the Supreme Court identified. Thus, the court would lack jurisdiction, to consider any claims by petitioners relating to, for example, their medical treatment or access to regular mail. Of course, the Protective Order hás. always operated within the jurisdictional bounds set out by the Supreme Court in Boumediene and by § 2241(e)(2). See, e.g., P.6, at ¶¶ II.D.12-.13 (setting out in great detail the procedures to be used for processing detainee legal mail, but noting that any non-legal mail would be processed according to the military’s standard operating procedures).
V. ' ANALYSIS
A. The Turner v. Sañey Standard is . Logically Inapplicable to this Case
The government contends that the new search procedures instituted by Col. Bog
The logical foundation of the Turner line of cases lies in striking a balance between a circumscribed constitutional right and the judgment of prison administrators. The Supreme Court described this reasoning clearly in Bell v. Wolfish,
The logical progression of the Court’s analysis in Bell is clear and simple: Prisoners retain basic constitutional rights, but those rights may be necessarily limited in the prison context. Further, the government, acting as prison administrator, may limit prisoners’ constitutional rights to accomplish valid penological objectives. Finally, given the Executive and Legislative branches’ particular roles and expertise in prison administration, the Judiciary should give deference to the Executive and Legislature in how they chose to circumscribe prisoners’ rights to achieve legitimate penological ends. Most importantly for this case, the second principle that the Court identified acts as a logical predicate for the principles that follow: the Executive or Legislature may limit a prisoner’s rights in order to accomplish valid penological objectives because those rights are limited or withdrawn in the prison context. Similarly, the court defers to the Executive or Legislature because it has balanced the prisoner’s limited rights against the valid penological interest according to its prerogatives and expertise. Turner adds
This logical analysis, however, is inapplicable to the right of habeas corpus itself. The notion that habeas corpus, like the freedoms of association
Moreover, the particular circumstances of the petitioners in this case strengthen, rather than weaken, the power of the writ. As the Supreme Court recognized in Boumediene, “where[, as here,] a person is detained by executive order, rather than, say, after being tried and convicted in a court, the need for collateral review is most pressing.... In this context the need for habeas corpus is more urgent.”
The Supreme Court’s analysis in Bell and Turner cannot apply to petitioners. Since the right to seek habeas relief is not limited or withdrawn in the prison context, neither may the Executive or the Legislature circumscribe the petitioners’ right, see id.; Boumediene,
B. The New Search Procedures Fail Under the Turner Standard
As the Supreme Court has noted, “federal courts must, take cognizance of the
Nevertheless, the Court must recognize both the special expertise of the Executive and Legislature in prison administration and its own limited expertise in that area. “Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government.” Turner,
In order to balance the competing considerations between prisoners’ rights and prison administration, the Supreme Court formulated its test as follows: “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Id. at 89,
Applying the first Turner factor, the Court finds that the new search procedures lack a “valid, rational connection” to. the legitimate government interest — security — put forward to justify them. ■ As the government correctly asserts, “internal security of detention facilities is a legitimate government interest.” Block v. Rutherford,
The government’s second justification for the new search procedures involves the suicide of detainee Adnan Farhan Abd Latif. Latif committed suicide in September 2012 by overdosing on medication that he had hoarded over a short time period. Opp’n 11. The command investigation performed after Latifs suicide noted that he may have hidden the medications in his groin area. ■ Id.; Bogdan Decl. ¶ 18. According to the government, this incident provides a further “valid, rational connection” to satisfy the first Turner factor. At this Court’s sealed hearing on June 5, Counsel for petitioners noted, however, that Col. Bogdan’s affidavit nowhere states that Latif actually hid medications in his groin area, only that the prior search procedure provided him with the opportunity to do so. Sealed Hr’g Tr. 7; see also Bogdan Decl. ¶ 18. In response, government counsel only stated that Latif “might” have hoarded medication in his groin area. Sealed Hr’g Tr. 20.
Petitioners. correctly conclude that Latifs possible opportunity to hoard medication bears no logical connection to a policy to search the groin area of every detainee every .time he is moved or meets with non-JTF .personnel, whether that be medical personnel, representatives from the. International Committee of the Red Cross, or legal counsel. Hatim Reply 4. The government’s attempts to justify the new procedure on the basis of Latifs suicide have the patina of pretext to them. The mere possibility that Latif hoarded medications in his groin area, with nothing more, will not support the new search policy because the logical connection between the policy and this supposed justification “is so-remote as to render the policy arbitrary or irrational.” Turner,
Moreover, the government’s actions in regards to the command investigation of Latifs suicide belie the suggestion that Latifs death was a justification for the new search policies. Latifs death occurred in September 2012, and the com
The third justification the government offers for the new search policies under the first Turner factor is the discovery of contraband in Camp 6. According to Col. Bogdan’s statement, in April 2013, the JDG transitioned Camp 6 from communal living for detainees to keeping detainees in individual cells. Id. In the course of the transition, the JDG discovered “a number of contraband items, including homemade weapons, such as shanks, and prohibited electronic devices.” Id. The presence of contraband or weapons would represent a threat to camp security. On its face, this justification appears to offer thé strongest logical relationship between the ' new search procedures and the government’s legitimate interest" in security at the Guantanamo detention facility. Indeed, this Court “understand^] why [prison administrators] might need to do an overall search of the prison to be sure there are no shanks” or^ other' improvised weapons. Sealed Hrg. Tr. 22. The Court has heard of similar generalized searches at domestic prisons. Id. (citing the local jail in Washington, D.C. as an example).
• When viewed in isolation, as the government has presented it, the presence of contraband makes the new search procedure appear reasonably related to the government’s legitimate penological interest in security. The Court, however, must view the new procedure and the proffered justification in light of the government’s previous actions at Guantanamo. As petitioners’ counsel correctly noted during this Court’s hearing, “[t]he government is a recidivist when it comes to denying counsel access.” Sealed Hrg. Tr. 11. The government, seemingly at every turn, has acted to deny or to restrict Guantanamo detainee’s access to counsel. The government designated Guantanamo as a “detention facility” rather than as a “corrections facility” because, under the Navy’s own regulations, those incarcerated at a corrections facility have unconditional access to their attorneys. See In re Guantanamo Bay Detainee Continued Access to Counsel,
While the Court agrees that the presence of improvised weapons and contraband is logically related to the need for searches generally, the Court finds the new genital search procedure to be yet another exaggerated response by the JDG that is presently inhibiting petitioners’ access to counsel. Since implementation of the new search procedure, multiple petitioners have foregone, some for the first time, phone calls or meetings with counsel. Hatim Mot. 4-5; Hatim Mot. Ex. A ¶¶ 13-18; Hatim Mot. Ex. B; Hatim Mot. Ex. C ¶¶ 7-10; Hatim Mot. Ex. D ¶¶7, li-12; Hatim Mot. Ex. E ¶¶ 3-7; Hatim Mot. Ex. F ¶¶ 4-6; Hatim Reply 7-8; Hentif & A1 Shubati Mot. Ex. A ¶¶4-6, 8. This does not represent, as the government argues, “mere voluntary refusal” on each petitioner’s part. Opp’n 14. Instead, the Court finds that the new search procedures actively discourage petitioners from taking phone calls or meeting with counsel. - As petitioners’ counsel argued, the choice between submitting to a search procedure that is religiously and culturally abhorrent or foregoing counsel effectively presents no choice for devout Muslims like petitioners. Open Hr’g Tr. 19; Sealed Hr’g Tr. 14-15; Hentif & A1 Shubati Mot. Ex. A ¶¶ 8. The relationship between the searches and petitioners’ choices to refuse phone calls and counsel meetings is clear and predictable. Indeed, petitioners also find searches of the Quran abhorrent, and many petitioners have chosen to forego having.a Quran in their cells rather than having their Qurans subject to search. Hatim Mot. Ex. A ¶¶ 3, 22, 24-25; see also Charlie Savage, Officials Describe Chaos at Guantanamo in Weeks Before Raid on Prison, N.Y. Times (Apr. 16, 2013), http: //www.nytimes.com/2013/04/17/us/politics/ detainees-hit-guards-in-weekend-raid-officials-say.html (noting that detainees offered to end the current hunger strike by giving up. their Qurans rather than have them be searched).
That this relationship is so clear and predictable makes it easy for the government to exploit. Given that detainees are already shackled and under guard whenever they are moved, Hatim Mot. Ex. A ¶ 5, the added value of the new genital search procedure vis-a-vis the prior search procedure is reduced. In this context, the court finds searching the genitals of petitioners up to four times for" every phone call or attorney-client meeting — as petitioners have described, Hatim Mot. Ex. B ¶¶ 7-8, 15; Sealed Hr’g Tr. 39 — to be excessive. Searching detainees up to four times in this manner for every movement, meeting, or phone call belies any legitimate interest in security given the clear and predictable effects of the new searches. Moreover, as petitioners note, nothing in the record indicates that detainees have received any contraband from their attorneys or that detainees have attempted to pass.contraband to each other during phone calls or meetings with attorneys. Hatim Reply 4-5. The motivation for the searches is not to enhance security but to deter counsel access. Thus, the Court finds the search
Turning to the remaining factors identified in Turner, the second factor considers “whether there are alternative means of exercising the right that remain open to prison inmates.” Turner,
The third Turner factor looks at “the impact [that] accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” Turner,
The fourth Turner factor looks to the “absence” or “existence” of “ready alternatives” ' to the challenged regulation. Turner,
In summary, the Court finds the evidence submitted by petitioners and contained in the record sufficient to carry their burden to show that the new search procedure is an “exaggerated response” to the JDG’s concerns. Further, the Court finds the government’s proffered justifications for the new search procedure unper
C. The JDG Must Allow Certain Detainees to Meet with Counsel in the Housing Camps
The Court now turns to the petitioners’ request that the Court order JTFGTMO to allow detainees to meet with counsel in their housing camps. At the outset, the Court recognizes that under the current regime, the government has the prerogative to select the location for attorney-client meetings. Under the Protective Order, “[l]egal visits shall take place in a room designated by JTF-Guantanamo.” ¶ Il.C.ll.b;
Applying the first Turner factor, the government offers' two justifications for the policy forbidding attorney-client meetings in the detainees’ ’housing camps. The government’s first justification is, essentially, that the meeting -rooms in Camp Echo are in some way better for the detainees and counsel than any room available in Camp .5 or 6. See■ Opp’n 9 (noting that the Camp Echo meeting rooms have separate spaces-for detainee prayer and that, at Camp Echo, counsel may “vptph DVDs, read books, and share food with their clients”). While Col. Bogdan’s desire to provide detainees with better accommodations for attorney-client meetings is admirable, it has nothing to do with the government’s interests in security or camp operations. Moreover, it is undercut by the petitioners’ assertion that the change inhibits counsel access. The government’s second set- of justifications, however, is more substantial.
The government identifies several logistical concerns that it contends favor restricting attorney-client meetings to Camp Echo. First, the government notes that all visitors to Guantanamo, including attorneys, must pass through visitor screening at Camp Echo regardless of -their destination within the detention facility. Id.; Bogdan Decl. ¶ 6. Second, the government points to the need to divert guards and Staff Judge Advocates to escort counsel to and from-meetings in the housing camps. Opp’n 9; Bogdan Decl. ¶ 15. Third;. the government contends that meetings in the housing camps will impair movements of
The government’s first three justifications are easily dismissed. As to the first, the fact that all the attorneys must enter the detention facility via Camp Echo has no logical bearing on whether detainees may meet with their attorneys in the housing camps or only at Camp Echo. Indeed, habeas counsel have expressed no concern with whatever added inconvenience a trip from Camp Echo to Camp 5 or 6 might represent. Moreover, the government has raised no concerns about movement of counsel within the facility. As to the second justification, petitioners’ counsel correctly reason that the guards may escort the detainee to Camp Echo or counsel to the housing camps, but in either case they must escort someone somewhére. Hatim Reply 5-6; see also Bogdan Decir ¶7 (“JTF-GTMO maintains an escort staff of guards whose exclusive mission is to support movements of detainees and visitors, including habeas counsel.’’). Presumably, escorting the attorneys should be the easier of the two insofar as counsel need not be shackled for the trip. The government’s third justification is likewise inadequate: if only one detainee may be moved at a time, the problem of coordinating detainee movements will exist regardless of whether detainees meet with their attorneys in Camp Echo or in the housing camps since detainees must move through their housing camps in either case.
The government’s fourth justification, however, requires more careful consideration. The government argues that allowing detainees to meet with their attorneys in Camp 5 or 6 would negatively impact the availability of the guard force. Opp’n 10, 23. Specifically, the lack of a centralized video-monitoring facility in Camps 5 or 6 of the sort that exists in Camp Echo means that guards must be stationed outside the meeting room “to ensure the safety of counsel and to discourage and prevent misconduct by the detainee.” Opp’n 10, 23; see also Bogdan Decl. ¶ 15. Of course, stationing guards outside the room for attorney-client meetings diverts the guards from other duties and, the government contends, may interfere with camp operations. Opp’n 10, 23; Bogdan Decl. ¶ 15. The allocation of guard staff and their duties requires considerations of “planning ... and the commitment of resources,” Turner,
Examination of the context of detention at Guantanamo shows that the JDG’s regulation forbidding attorney-client meetings in Camps 5 or 6 lacks a valid, rational connection to the government’s legitimate penological interests in security or orderly administration. To be sure, allowing attorney-client meetings in the housing camps will divert some guards away from their other duties, but the Court must recognize that the practical effect of petitioners’ request is limited. As Adm. Walsh identified, there is only one room for attorney-client meetings in Camp 5, Walsh Report 11, and Col. Bogdan identified two rooms that could be used for attorney-client meetings in Camp 6. Bogdan Decl. ¶ 14. Assuming that the JDG
The Court now turns to the remaining Turner factors. Applying the second factor, the Court finds that, for those detainees participating in the hunger strike who are too weak to go to Camp Echo to meet with counsel, no alternatives to exercise their right to petition for habeas corpus exist. As this Court stated above, any attempt to bring a habeas petition where attorney-client communications are limited to legal mail would be untenable. Applying the third Turner factor, the Court finds that the “ripple effect” of accommodating the detainees’ request would be minimal given the limited facilities available for attorney-client meetings at Camps 5 and 6. Finally, under the last Turner factor, allowing limited attorney-client meetings in Camps 5 and 6 is an obvious and reasonable accommodation for those detainees too weakened by the hunger strike to travel to Camp Echo.
In summary, the Court finds the JDG’s policy of forbidding attorney-client meetings in the housing camps, to be an exaggerated response to the government’s penological interests in security and orderly operations. The Court will amend Judge Hogan’s Protective Order to require that the JDG allow attorney-client meetings in Camps 5 and 6 for those detainees who are in a weakened physical state due to participation in the hunger strike or who have a medical condition that similarly makes travel outside the housing camps difficult. Given the limited space available for attorney-client meetings in Camps 5 and 6, counsel for petitioners and government counsel shall meet to establish procedures to ensuré that the limited availability for attorney-client meetings in the housing camps is apportioned fairly amongst the detainees.
D. The JDG Must Allow Certain Petitioners to Use the Old Vans for Transport to Camps Echo and Delta
Due to the limited space for attorney-client meetings at Camps 5 and 6, some detainees may still need to travel to Camps Echo and Delta for attorney-client meetings and phone calls.. Thus, the Court now. turns to petitioners’ challenge to the vans used by JDG to transport detainees from their housing camps to Camps Echo and Delta. Applying the same considerations that it applied to the regulations concerning attorney-client meetings in the housing camps, the Court concludes under Turner that detainees engaged in the hunger strike should be allowed to use
At the outset, the Court' müst applaud the JDG’s effort to accommodate detainees request for new vans with better air conditioning and its ongoing effort to modify those vans to allow detainees to sit upright during transport. Bogdan Decl. ¶ 22. Thus, the Court hopes any accommodation it requires in this regard will be short lived. Applying the first Turner factor, as between the old vans and the unmodified new vans, no penological interest favors the use of one over the other. The government admits that the old vans are still available for use use and that it purchased the new vans as part of a “routine fleet upgrade and to address detainee complaints about a lack of air conditioning in the older vans.” Opp’n 10. The government’s decision to replace the vans does not implicate its penological interest in security or orderly operations. Nothing, for example, suggests the old vans are any less secure than the new vans. Applying the remaining Turner factors, the Court finds that accommodating the detainees’ request here would be truly costless. Indeed, given that the old vans are still available and just as good, the cost to- the JDG to use one of the old vans rather than one of the unmodified new vans is zero. The government tacitly admits this insofar as it allows detainees with certain medical conditions to use the old vans while the new vans are being modified. Bogdan Decl. ¶ 22. Detainees participating in the hunger strike should be accommodated similarly. Indeed,, given the importance of the right to habeas- corpus and access to counsel for the detainees, wisdom counsels in favor of granting a truly costless request like the one petitioners have submitted here.
VI. CONCLUSION
In closing his speech at the National Defense University, the President quoted Judge William Young. See Remarks by the President at the National Defense University. In sentencing Richard Reid, the shoe bomber, Judge Young told him that “[t]he way we treat you ... - is the measure of our own liberties.” Id. Judge Young’s comment is equally apt when applied to the detainees at Guantanamo.
This Court is duty bound to protect the writ of habeas corpus as a fundamental prerequisite of liberty by ensuring that all those who seek it have meaningful and effective access to the courts. For Guantanamo detainees, it is undisputed that access to the courts means nothing without access to counsel. The JDG’s behavior, exemplified by the new search and meeting procedures, flagrantly disregards the need for a light touch on religious and cultural matters that Admiral Walsh recognized years ago. Further, the search procedures discourage meetings with counsel and so stand in stark contrast to the President’s insistence on judicial review for every detainee. The Court, whose duty it is to call the jailer to account, will not countenance the jailer’s interference with detainees’ access to counsel.
For the foregoing reasons, the Court finds the challenged procedures and regulations invalid as they pertain to counsel access. The Court further concludes, pursuant to ¶ I.E.34 of the Protective Order, that this Memorandum Opinion and the accompanying Order issued this date should not be designated as protected, but will be available on the public record. Given the limits of this Court’s jurisdiction, the Court’s holding does not affect the ability of . the JDG to continue to administer the Guantanamo detention facility as it finds appropriate with respect to issues unrelated to counsel access.'
A separate Order- consistent with this Memorandum Opinion shall issue this date.
Before the Court is an Emergency Motion [37] to Enforce the Right of Access to Counsel filed by .petitioners Abdurrahman Abdallah Ali Mahmoud al Shubati (ISN 224) and Fadhel Hussein Saleh Hentif (ISN 259). Also before the Court is an Emergency Motion [38] Concerning Access to Counsel filed by petitioner Saeed Mohammed Saleh Hatim • (ISN 255) on his own behalf and on behalf of several other Guantanamo detainees. Upon consideration of petitioners’ Motions [37 and 38], the government’s Opposition [42], petitioners’ replies [44 and 45], the arguments presented at this Court’s open and sealed hearings held June 5, 2013, the entire record herein, the applicable law, and for the reasons set forth in the Court’s Memorandum Opinion issued this date, it is hereby
ORDERED that the Motions' are GRANTED in part and DENIED in part; and it is further
ORDERED that the Protective Order issued by Judge Hogan on September 11, 2008, shall be amended by adding the following as paragraph II.J.39:
“Detainees shall be subject to search prior to and after any in-person meeting or phone call with counsel. The search procedure used by JTF-Guantanamo for all searches prior to or after any in-person meetings or phone calls with counsel shall be the modified search procedure identified by Admiral Walsh on page 25 of the Review of Department Compliance with President’s Executive, Order on Detainee Conditions of Confinement. Specifically, guards shall be limited to grasping the waistband of the detainee’s trousers and shaking the pants to dislodge any contraband.”
It is further ORDERED that paragraph Il.C.ll.b
“By default, legal visits for any detainee (1) who is in a weakened physical state on account of participation in a hunger strike or (2) who has any medical condition that makes travel outside the housing camp difficult, shall take place in meeting rooms within the .detainee’s housing camp. The Court understands that one such meeting room is available in Camp 5 and two are available in Camp 6. Access to meetings in these rooms shall be apportioned fairly. If detainees request more legal visits on a given day than the meeting rooms in the housing camps may accommodate, the additional legal visits shall take place in other rooms designated by JTF-Guantanamo. Legal visits for detainees who do not meet the requirements set forth in the first sentence of this paragraph shall take place in a room designated by JTF-Guantanamo. No more than two attorneys (or one attorney and one assistant) plus one interpreter/translator shall visit with a detainee at one time, unless approved in advance by the Commander, JTF-Guantanamo. Such approval shall not be unreasonably withheld.”
It is further ORDERED that paragraph II.J.37 of the Protective Order issued by Judge Hogan on September 11, 2008, shall be amended to read as follows:
“Counsel will meet with detainees in conference facilities provided by GTMO in accordance with paragraph Il.C.ll.b of this Protective Order. These facilities are subject to visual monitoring by closed circuit TV for safety and security reasons. The only other method of visual observa
It is further ORDERED that, for any travel between the detainee’s housing camp and another part of the Guantanamo detention facility for any in-person meeting with or phone call with counsel, JTF-Guantanamo shall, at the detainee’s request, transport the detainee in a vehicle that allows the' detainee to sit upright.
SO ORDERED.
Notes
. "ISN” is the acronym for "Internment Serial Number,” and each detainee currently housed at 'Guantanamo Bay has been assigned an ISN. Bostan v. Obama,
. The Order specifically excluded cases over which Judge Richard Leon presided as well as Hamdan v. Bush, 04-cv-1519. Order at 2 n. 1, In re Guantanamo Bay Detainee Litig., Misc. No. 08-442(TFH) (July 2, 2008), ECF No. 1.
. See, e.g., Overton v. Bazzetta
. See, e.g., Bell,
. In the published version of Judge Hogan’s Protective Order, paragraph II.C.ll has two sub-paragraphs designated “a.” As this citation is to the second of those sub-paragraphs, the Court corrects the typographical error in its citation for purposes of clarity.
. In the published version of Judge Hogan's Protective Order, paragraph II.C.ll has two sub-paragraphs designated "a.” As this citation is to the second of those sub-paragraphs, the Court corrects the typographical error in its citation for purposes of clarity.