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-press-office/2013/05/23/remarks-president-national-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 writ of habeas corpus through access to the Court and access to counsel.
Upon consideration of petitioners’ Motions [37 and 38], the government’s Opposition , 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.
A. Procedural Background
Before the Court is an Emergency Motion  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). Emergency Mot. to Enforce the Right of Access to Counsel 1, May 22, 2013, ECF No. 37 (“Hentif & Al Shubati Mot.”). Also before the Court is an Emergency Motion  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. Emergency Mot. Concerning Access to Counsel 1–2, May 22, 2013, ECF No. 38 (“Hatim Mot.”). All the petitioners request that this Court order the government to discontinue the use of certain procedures that petitioners allege inhibit their access to legal counsel. Specifically, petitioners request the Court to order (1) that they may meet with counsel in person or by phone without being subject to the new search protocol instituted by the JDG, (2) that they may meet with counsel in person or by phone within their housing camps, and (3) that the government may not transport detainees within the detention facility for attorney meetings or phone calls using new vans that petitioners contend force them into painful stress positions.
Petitioners are at different stages in their respective habeas cases before the Court. Al 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) (D.D.C. Mar. 11, 2013), ECF No. 261. Hentif filed his petition for habeas corpus on October 16, 2006. See Pet. For Writ of Habeas Corpus, Hentif v. Obama, No. 06-CV-1766 (HKK) (D.D.C. Oct. 16, 2006), ECF No. 1. The Court, Judge Henry Kennedy presiding, denied his petition on August 1, 2011. See Mem. Op., Hentif v. Obama, No. 06-CV-1766 (HKK) (D.D.C. Aug. 1, 2011), ECF No. 281. Hentif’s appeal of the dismissal of his petition is currently before the D.C. Circuit. See Notice of Appeal, Hentif v. Obama, No. 06-CV-1766 (RCL) (D.D.C. Oct. 8, 2012), ECF No. 292. Hatim filed his petition for habeas corpus on July 20, 2005. See Pet. For Writ of Habeas Corpus, Hatim v. Obama, No. 05-CV-1429 (RCL) (D.D.C. Jul. 20, 2005), ECF No. 1. The Court, Judge Ricardo Urbina presiding, granted his petition for a writ of habeas corpus on December 15, 2009. See Order, Hatim v. Obama, No. 05-CV-1429 (RCL) (D.D.C. Dec. 15, 2009), ECF No. 334. The D.C. Circuit vacated Judge Urbina’s order on February 15, 2011 and remanded the case for further proceedings. Hatim v. Gates, 632 F.3d 720, 721 (D.C. Cir. 2011) (per curiam). Hatim’s case was subsequently reassigned due to Judge Urbina’s retirement, and this Court entered a scheduling order for Hatim’s petition for habeas corpus after a classified hearing on May 3, 2013. See Order, Hatim v. Obama, No. 05-CV-1429 (RCL) (D.D.C. Dec. 15, 2009), ECF No. 415.
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 Decl.”). 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 Decl. ¶¶ 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 Decl. ¶ 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 and then transported by van to the relevant camp. Id. ¶¶ 17–22. Previously, the search protocol in effect for detainees at GTMO did not allow guards to frisk the area between a detainee’s waist and mid-thigh except with authorization from the JDG Commander. Id. ¶ 17; Walsh Report 25. Instead, guards used a modified search procedure whereby a guard would grasp the waistband of a detainee’s trousers and shake the detainee’s pants in order to dislodge any contraband. Bogdan Decl. ¶ 17; Walsh Report 25. The purpose of this modified search procedure was “to avoid actions that could be construed as disrespectful” of detainees’ religious or cultural sensitivities. Walsh Report 26. The use of the modified procedures represented a considered policy judgment on the part of the former JDG commanders: The commanders recognized that the modified search procedures “carrie[d] a level of risk, ” but they “accepted that risk out of an elevated respect for the religious concerns of the detainees.” Id.
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 Al-Mithali 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. ¶ 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 upgrade and to address detainee complaints about a lack of air conditioning in the vans. Id. The new vans include larger air ducts to improve air conditioning, but lower ceilings. Id. Petitioners contend that, as a result, the lower ceilings in the vans force detainees to sit in crouched and painful stress positions for the duration of the van ride. Hatim Mot. 3; Hatim Mot. Ex. A ¶¶ 29–34; Hatim Mot. Ex. G ¶ 9.
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, 542 U.S. 466, 484 (2004). Congress then twice amended the federal habeas statute, 28 U.S.C. § 2241, in an effort to overturn the Supreme Court’s ruling. First, Congress passed the Detainee Treatment Act of 2005 (DTA), Pub. L. No. 109-148, 119 Stat. 2680 (2005), but the Supreme Court held that the provision of the DTA depriving courts of jurisdiction over detainee habeas petitions did not apply to cases pending when the DTA was enacted. Hamdan v. Rumsfeld, 548 U.S. 557, 575–78 (2006). Second, Congress passed the Military Commissions Act of 2006 (MCA), Pub. L. No. 109-366, 120 Stat. 2600 (2006) (codified in part at 28 U.S.C. § 2241 & note), but the Supreme Court declared that detainees “are entitled to the privilege of habeas corpus to challenge the legality of their detention.” Boumediene v. Bush, 553 U.S. 723, 771 (2008). The Supreme Court further invalidated the provision of the MCA that stripped courts of jurisdiction to hear habeas petitions from detainees. Id. at 792. This Court and the Supreme Court also held that Guantanamo detainees have a concomitant right to the assistance of counsel. Hamdi v. Rumsfeld, 542 U.S. 507, 539 (2004); Al Odah v. United States, 346 F.Supp.2d 1, 5 (D.D.C. 2004).
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. 346 F.Supp.2d at 6; see also Harris v. Nelson, 394 U.S. 286, 298 (1969) (“[A] district court may, in an appropriate case, arrange for procedures which will allow development . . . of the facts relevant to disposition of a habeas corpus petition.”). Using this power, she proposed a framework for detainee counsel access. Al Odah, 346 F.Supp.2d at 13–15. The government subsequently moved for a protective order “to prevent the unauthorized disclosure or dissemination of classified national security information.” In re Guantanamo Detainee Cases, 344 F.Supp.2d 174, 175 (D.D.C. 2004). This Court designated Judge Joyce Hens Green to coordinate and manage all Guantanamo proceedings and rule on common procedural and substantive issues. All then-pending Guantanamo cases, except those being heard by Judge Richard J. Leon, were transferred to Judge Green. In November 2004, Judge Green issued an “Amended Protective Order and Procedures for Counsel Access to Detainees, ” which set guidelines and procedures for counsel access to detainees and to classified information. Judge Green’s protective order was ultimately a boon for the Court, for the Government, and for detainees as it settled many issues that would have otherwise, no doubt, required a great deal of litigation.
Judge Green’s protective order stood without objection for four years. In light of the Boumediene 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  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. Id. Judge Hogan also determined that the Court should issue a new protective order. After considering the parties’ positions espoused both in written submissions and at a status conference, Judge Hogan issued a carefully crafted and thorough protective order that contained procedures for counsel access to detainees and to classified information. In re Guantanamo Bay Detainee Litig., 577 F.Supp.2d 143 (D.D.C. 2008) (“Protective Order” or “P.O.”). Judge Hogan’s protective order was substantially similar to the protective order issued by Judge Green.
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, 892 F.Supp.2d 8 (D.D.C. 2012). At that time, the government argued “that the Protective Order cease[d] to control counsel-access in the absence of a pending or imminent habeas petition” and sought to enter into Memoranda of Understanding (MOUs) with detainees that would set the terms for counsel access. Id. at 11. The terms of the MOUs proposed by the government differed substantially from those of Judge Hogan’s Protective Order and would have hampered both petitioners’ access to counsel and counsels’ access to classified information. Id. at 13–14. This Court rejected the government’s argument and the proposed MOUs. Instead, the Court held that Judge Hogan’s protective order governed counsel-access issues for all petitioners, including those without any pending habeas action. Id. at 28.
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 ...