A quote worth recalling when it comes to the U. S. detention facility at Guantanamo Bay Cuba is Nixon Attorney General John Mitchell’s: “Watch what we do, not what we say.”
The latest example starts with President Obama’s May 23 speech at National Defense University when he discussed his efforts to close the facility, which he called “a symbol around the world for an America that flouts the rule of law.”
Obama quoted the judge who sentenced shoe bomber Richard Reid, saying the way the United States treats detainees “is the measure of our own liberties.”
What the president did not discuss, and may not have known, was that on May 22, lawyers for several detainees had filed an emergency motion in Washington arguing that rather than face newly instituted, religiously repugnant groin searches, their clients — many on a hunger strike — were canceling attorney meetings and phone calls to family members.
Last week, Federal District Chief Judge Royce C. Lamberth noted Obama’s use of “our own liberties” in his July 11 opinion, in which, among other things, he barred U.S. guards from continuing the searches.
Since May 3, at least twice or even four times, when a detainee left his cell and returned — always shackled — a guard was required to use a flat hand “to press against the groin to detect anything foreign attached to the body,” and again with a flat hand “to frisk the detainee’s buttocks to ensure no contraband is hidden there,” according to the Lamberth opinion.
The guards were also to wave a handheld wand metal detector over the detainee’s entire body, including the groin and buttocks area, but this time keeping the wand about “one to two inches from the detainee’s body.”
Lamberth said such actions were “religiously and culturally abhorrent” to Muslim detainees.
In 2009, a review team headed by then-Vice Chief of Naval Operations Adm. Patrick M. Walsh found that detainees who’d been told they could leave but had not been released were showing “extreme frustration.” Walsh recommended “a humane treatment standard” and “continued interagency process to resolve these detainees’ future.”
More than four years have passed, and 86 of the present 166 Guantanamo detainees, cleared to go to their home country or another country willing to accept them, remain there. We shouldn’t be surprised that there’ve been riots and, since February, a major hunger strike.
What makes the Mitchell quote relevant is that military attorneys began fighting in court to keep the invasive search techniques despite what their commander-in-chief had said in his NDU speech.
It’s been that way at Guantanamo from the start, when the Bush administration set up the facility as a place outside the United States where detainees would have no rights.
It was established as a “detention facility” rather than as a “corrections facility” because, as Lamberth pointed out, under the Navy’s own regulations, those incarcerated at a corrections facility have unconditional access to their attorneys; detainees don’t.
The Supreme Court has ruled that detainees have the right to challenge their detention.
Federal judges at times have had to take over monitoring Guantanamo prisoner treatment, thanks to detainee lawyers filing motions against some military practices.
Just representing detainees has been a challenge for lawyers. They must obtain security clearances and sign a protective order that requires them to consider every word a detainee says as classified, until cleared by a military censor.
Notes taken in face-to-face conversations with detainee clients are classified until cleared after review in Washington. In addition, flights to and from Guantanamo are limited and that means counsel must now wait for “at least two months before they meet with their clients,” the judge noted.
Lamberth also knocked down the government’s arguments for the invasive searches.
Military officials had argued that the old search policy, which consisted of shaking the waistband of detainee pants, was risky and could lead to “operational disruptions and difficulties.” They claimed the September 2012 suicide of a detainee could have resulted from hiding pills in his groin area.
Lamberth said there was nothing in the record showing earlier search procedures had led to disruptions. He noted the government had argued that the detainee’s suicide “might” have resulted from hoarded medication in his groin area and that searching every detainee’s groin area because of that possibility “is so remote as to render the policy arbitrary or irrational.”
The strongest justification for invasive searches, according to Lamberth, came after April searches in one camp during transition from communal living to separate cells found some homemade weapons and prohibited electronic devices.
However, the judge found the record failed to indicate “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.”
In summary, Lamberth said the detainee lawyers had shown the new invasive searches were an “exaggerated response” to security concerns and their justification by the government was “unpersuasive.”
Back on May 23 Obama said, “Imagine a future — 10 years from now or 20 years from now — when the United States of America is still holding people who have been charged with no crime on a piece of land that is not part of our country. . . . Is this who we are? Is that something our Founders foresaw? Is that the America we want to leave our children? Our sense of justice is stronger than that.”
Judge Lamberth has done his part. Now it’s time for President Obama and the rest of us to do ours.