United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 2013 Decided August 1, 2014
No. 13-5218
SAEED MOHAMMED SALEH H ATIM, DETAINEE , CAMP DELTA,
ET AL.,
APPELLEES
v.
BARACK OBAMA, ET AL.,
APPELLANTS
Consolidated with 13-5220, 13-5221
Appeals from the United States District Court
for the District of Columbia
(No. 1:12-mc-00398)
(No. 1:05-cv-01429-UNA)
(No. 1:06-cv-01766-RCL)
(No. 1:07-cv-02338-RCL)
Edward Himmelfarb, Attorney, U.S. Department of
Justice, argued the cause for appellants. With him on the
briefs were Stuart F. Delery, Assistant Attorney General, and
Matthew M. Collette, Attorney. Ronald J. Whittle, II,
Attorney, entered an appearance.
2
S. William Livingston argued the cause for appellees.
With him on the brief were Brian E. Foster, David H. Remes,
Brent Nelson Rushforth, and David Muraskin. Alan A.
Pemberton entered an appearance.
Before: G ARLAND, Chief Judge, and H ENDERSON and
GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: Guantanamo Bay detainees
challenge two new policies they claim place an undue burden
on their ability to meet with their lawyers. The district court
upheld the detainees’ challenge, but we reverse, concluding
that the new policies are reasonable security precautions.
I
The first challenged policy concerns where the detainees
may meet with their lawyers. In the past, detainees at
Guantanamo Bay would meet with visitors in nearby Camp
Echo, to which they were driven in vans, or occasionally in
Camps 5 and 6, the camps where most detainees are housed.
Meetings in the housing camps would take place in small
interview rooms with a guard posted outside the door. It is
easier to monitor detainees’ meetings with visitors in Camp
Echo. There is no need to post a guard outside each meeting
because the interview rooms are equipped with video-
monitoring equipment, and visitors can summon a guard at
the touch of a button. The Camp Echo rooms are also larger
than those in the housing camps and include restroom
facilities and space for prayer, which means that guards need
not move detainees to other rooms mid-meeting to use the
bathroom or worship, as they must in the housing camps.
3
Citing the ability to provide more security with fewer guards
at Camp Echo, in September 2012 the government
implemented a new policy that required that all detainee
meetings with visitors take place there instead of in the
housing camps.
The second challenged policy involves the search the
detainees must undergo when meeting with their lawyers. It
has long been Guantanamo policy that detainees are searched
both before and after any meeting with a visitor. Standard
protocol in military prisons calls for a non-invasive search of
the genital area of a prisoner. In the past, searches at
Guantanamo departed from that element of the protocol in an
effort to accommodate the religious sensibilities of the
detainees. Under the old policy, guards would grasp a
detainee’s waistband and shake his pants in an attempt to
dislodge any items that might be hidden, careful to avoid
contact with a detainee’s genital area. Concerns arose that not
searching the genital area was posing a security threat. Those
concerns escalated with the suicide of a detainee who took an
overdose of medication that he had smuggled into his cell and
the discovery of shanks, a wrench, and other weapons in the
housing camps that had evaded the searches.
In May 2013 the government revised the search
procedures for Guantanamo to conform to standard military
prison procedure. According to the protocol, the guard places
his hand as a “wedge between the scrotum and thigh, and
us[es] the flat hand to press against the groin to detect
anything foreign attached to the body. A flat hand is used to
ensure no contraband is hidden between the buttocks.” The
guard also passes a hand-held metal detector a few inches
over the detainee’s body, including the area of his groin and
4
buttocks. At no time is the detainee’s groin visually exposed
to the guard.
Detainees challenged these two new policies in habeas
corpus proceedings in district court, arguing that they have the
purpose and effect of discouraging meetings with their
counsel. The detainees claimed that their poor health made it
difficult to make the trip by van to meet with their lawyers in
Camp Echo and that their religious beliefs made it impossible
to meet with counsel at all if genital searches were required to
do so. The detainees sought an order permitting them to meet
with counsel within the housing camps and without being
subject to the new search procedures.
The district court granted the detainees’ motion in part.
The district court found that the new procedures were an
exaggerated response to overstated security concerns,
concluding that the rationales offered by the government were
but a pretext for the real purpose, which was to restrict
detainees’ access to counsel. The court entered an order
barring use of the new search procedures when meeting with
counsel. It also ordered that ill and injured detainees be
allowed to meet with their lawyers in the housing camps
instead of in Camp Echo. See In re Guantanamo Bay
Detainee Litig., 953 F. Supp. 2d 40, 59-61 (D.D.C. 2013).
The government appealed, and we stayed the district court’s
order pending resolution of this appeal.
II
There is no doubt that we have jurisdiction over an appeal
from a district court order granting injunctive relief, 28 U.S.C.
§ 1292(a)(1); see also Salazar ex rel. Salazar v. District of
Columbia, 671 F.3d 1258, 1261-62 (D.C. Cir. 2012), but there
5
is a question in this case whether the district court had
jurisdiction to issue that order in the first place. Congress has
granted district courts jurisdiction to hear habeas claims. 28
U.S.C. § 2241(a); see also Rasul v. Bush, 542 U.S. 466, 481
(2004) (holding that § 2241 extends to Guantanamo
detainees). But in the Military Commissions Act of 2006
(MCA), Congress barred the federal courts from hearing the
habeas claims of Guantanamo detainees. 28 U.S.C.
§ 2241(e)(1). The MCA also stripped the federal courts of
jurisdiction over “any other action . . . relating to any aspect
of [their] detention, transfer, treatment, trial, or conditions of
confinement.” Id. § 2241(e)(2).
In Boumediene v. Bush, the Supreme Court invalidated
subsection (e)(1)’s ban on habeas claims of Guantanamo
detainees, 553 U.S. 723, 792 (2008), but (e)(2) remains a bar
to any “other action” by detainees, see Al-Zahrani v.
Rodriguez, 669 F.3d 315, 319 (D.C. Cir. 2012). Thus, the
district court has jurisdiction under § 2241(a) to hear the
detainees’ habeas challenges, but is prohibited by (e)(2) from
hearing any of their other claims. The government contends
that the detainees’ claims in this matter do not sound in
habeas and are therefore barred by (e)(2) because they relate
to their “treatment” and “conditions of confinement.” The
district court found jurisdiction, holding that the alleged
interference with access to counsel infringed the right to
habeas relief announced in Boumediene. See In re
Guantanamo Bay Detainee Litig., 953 F. Supp. 2d at 49-50.
We need not determine whether the district court’s view
of the scope of habeas is correct, for this challenge falls
squarely within the jurisdiction we recognized recently in
Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014). In Aamer,
we held that challenges to conditions of confinement can
6
properly “be raised in a federal habeas petition under section
2241,” and when so raised are not barred by (e)(2)’s
prohibition on non-habeas actions. Id. at 1030, 1038. The
government has expressly conceded that the procedures
challenged by these habeas petitions are “conditions of
confinement.” Br. of Appellant at 17-19. The district court
thus had jurisdiction under Aamer, and we need not address
other jurisdictional theories.
III
We review constitutional challenges to prison policies
under the test announced by the Supreme Court in Turner v.
Safley, 482 U.S. 78, 89 (1987). This deferential standard
applies to military detainees as well as prisoners. See
Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington,
132 S. Ct. 1510, 1518 (2012) (applying the Turner test in the
context of pre-trial detention); United States v. White, 2014
WL 354661 (N-M Ct. Crim. App. Jan. 31, 2014) (applying
the Turner test to challenges to policies in a military prison);
United States v. Phillips, 38 M.J. 641, 642-43 (A.C.M.R.
1993) aff’d, 42 M.J. 346 (C.A.A.F. 1995) (same); see also
Amatel v. Reno, 156 F.3d 192, 196 (D.C. Cir. 1998)
(observing that in the military context, the “government is
permitted to balance constitutional rights against institutional
efficiency” in a manner similar to the Turner test).
In Turner, the Supreme Court explained that although
incarcerated individuals do not completely lose their
constitutional rights, “problems of prison administration”
allow the government to restrict those rights in ways that
would be unacceptable for persons not incarcerated. To
prevent judicial overreaching into matters of prison
administration, courts are to uphold prison regulations that
7
“impinge on inmates’ constitutional rights” as long as those
regulations are “reasonably related to legitimate penological
interests,” id. at 84-85, 89—a stark departure from the
“inflexible strict scrutiny” analysis that normally applies
when the government infringes on constitutional rights, id. at
89.
Here, however, the district court took the view that
Turner’s deference to reasonable prison regulations does not
apply to habeas claims, holding that “[s]ince 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.” In re Guantanamo Bay Detainee Litig.,
953 F. Supp. 2d at 53. Although there is some intuitive appeal
to this novel reasoning, we are compelled to reject it because
it directly contravenes Lewis v. Casey, 518 U.S. 343 (1996).
Lewis involved a class action alleging that inadequacies in the
Arizona prison system deprived inmates of their constitutional
right to access the courts by limiting the prisoners’ ability to
bring various types of lawsuits, including habeas petitions.
See id. at 346, 354-55. The Supreme Court held that
“Turner’s principle of deference” applies to prison officials’
interference with inmates’ attempts to bring their habeas
claims, id. at 350, 361, foreclosing the district court’s
suggestion that Turner does not govern a prisoner’s claim that
his habeas rights have been abridged by prison officials. See
also Phillips v. Bureau of Prisons, 591 F.2d 966, 974 (D.C.
Cir. 1979) (applying a Turner-like test to prison regulations
limiting access to paralegals); cf. Toolasprashad v. Bureau of
Prisons, 286 F.3d 576, 584-85 (D.C. Cir. 2002) (applying
Turner to allow limitations on prisoners’ ability to file
grievances against prison administrators). We therefore
8
proceed to consider the detainees’ claims under the Turner
framework. 1
IV
We assume, without deciding, that the district court was
correct in concluding that the detainees’ right to habeas
includes the right to representation by counsel and that that
right has been burdened by the policies that the detainees
challenge. 2 See Overton v. Bazzetta, 539 U.S. 126, 131-32
(2003) (declining to define the asserted right where, even if
such a right existed and was violated, the regulations survived
Turner). Turner requires that we look to four factors to
determine if these new policies are reasonable: (1) whether
there is a “valid, rational connection between the prison
regulation and the legitimate governmental interest put
1
Although the district court held that a test less deferential
than Turner applies to regulations affecting habeas claims, it
declined to specify the features of that test because it found that the
challenged policies failed even under Turner.
2
Although the detainees claim that the new policies cut off
their ability to meet with counsel, we note that the Guantanamo
administrators have not done so directly. They have only required
searches before meetings with any visitors, including counsel. In
the face of those searches, which the detainees find objectionable
on religious grounds, the detainees have made the decision that they
will not meet with counsel. See O’Lone v. Estate of Shabazz, 482
U.S. 342, 351-52 (1987) (“While we in no way minimize the
central importance of [religious beliefs] to respondents, we are
unwilling to hold that prison officials are required by the
Constitution to sacrifice legitimate penological objectives to that
end.”).
9
forward to justify it,” Turner, 482 U.S. at 89 (internal
quotation marks omitted); (2) “whether there are alternative
means of exercising the right that remain open to prison
inmates,” id. at 90; (3) “the impact accommodation of the
asserted constitutional right will have on guards and other
inmates, and on the allocation of prison resources generally,”
id.; and (4) “the absence of ready alternatives” to the
regulation, id. Although we examine each factor, the first is
the most important. Amatel, 156 F.3d at 196 (“[T]he first
factor looms especially large. Its rationality inquiry tends to
encompass the remaining factors . . . .”); see also Beard v.
Banks, 548 U.S. 521, 532 (2006) (plurality opinion).
Prison security, the government’s asserted purpose for the
challenged policies, is beyond cavil a legitimate governmental
interest. See Bell v. Wolfish, 441 U.S. 520, 546-47 (1979).
Turner teaches that, and common sense shouts it out. The
only question for us is whether the new policies are rationally
related to security. We have no trouble concluding that they
are, in no small part because that is the government’s view of
the matter. “The task of determining whether a policy is
reasonably related to legitimate security interests is peculiarly
within the province and professional expertise of corrections
officials.” Florence, 132 S. Ct. at 1517 (internal quotation
marks omitted). We must accord “[p]rison administrators . . .
wide-ranging deference in the adoption and execution of
policies and practices that in their judgment are needed to
preserve internal order and discipline and to maintain
institutional security.” Bell, 441 U.S. at 547 (emphasis
added); see Florence, 132 S. Ct. at 1517; cf. Phillips, 591
F.2d at 972.
The touchstone of our deference, of course, is whether the
government’s assertion of a connection between prison
10
security and the challenged policy is reasonable. Here,
Guantanamo officials explained that they adopted the new
search policies to address the risk to security posed by
hoarded medication and smuggled weapons. It stands to
reason that enhancing the thoroughness of searches at
Guantanamo in the way called for by standard Army prison
protocol would enhance the effectiveness of the searches. See
Florence, 132 S. Ct. at 1516-17. The detainees make no claim
to the contrary. Instead, they argue that more thorough
searches are not needed during their visits with counsel
because the government failed to provide evidence that the
contraband was smuggled into the housing camps during
these visits. But the authorities at Guantanamo do not know
how or when detainees obtain contraband. Cf. Shaw v.
Murphy, 532 U.S. 223, 231 (2001) (“Prisoners have used
legal correspondence as a means for passing contraband.”);
Wolff v. McDonnell, 418 U.S. 539, 577 (1974) (“The
possibility that contraband will be enclosed in letters, even
those from apparent attorneys, surely warrants prison
officials’ opening the letters.”). In light of such uncertainty
and the fact that smuggling takes place, we think
administering a more thorough search in connection with
attorney visits as well as with any other detainee movements
or meetings is a reasonable response to a serious threat to
security at Guantanamo.
Likewise, it is reasonable to require that all meetings
between detainees and their visitors, including counsel, take
place in Camp Echo, which requires fewer guards than the
housing camps. Each meeting room in Camp Echo, unlike
those in the detainees’ housing camps, has a restroom and a
space for prayer, which means that guards are not needed to
transfer detainees mid-meeting. And the video monitoring in
Camp Echo eliminates the need to post guards outside each
11
meeting room, as is necessary in Camps 5 and 6. Guards who
would have to stand sentry if the visits took place in a housing
camp are instead available for postings elsewhere at
Guantanamo, enhancing the facility’s overall security.
The district court failed to defer to the government’s
justifications for the new policies, concluding that they were
not rationally related to a legitimate government interest. The
court required proof from the military that the old procedures
were ineffective and in need of change and that the detainee
who committed suicide had managed to repeatedly evade the
search by hiding the hoarded medication in his groin area.
The district court also dismissed the military’s expert
judgment that some of the guards needed for monitoring visits
with detainees in their housing camps could be better used for
other security needs, substituting its own assessment that
“allowing attorney-client meetings [in the housing camps]
would divert a maximum of two to three guards in Camp 5
and four to six guards in Camp 6. The Court is confident the
[military] can spare these guards . . . .” In re Guantanamo Bay
Detainee Litig., 953 F. Supp. 2d at 61.
This misapprehends something fundamental about
challenges to prison administration: “The burden . . . is not on
the State to prove the validity of prison regulations but on the
prisoner to disprove it.” Overton, 539 U.S. at 132; see also
O’Lone v. Estate of Shabazz, 482 U.S. 342, 350 (1987) (“By
placing the burden on prison officials to disprove the
availability of alternatives, the approach articulated by the
Court of Appeals fails to reflect the respect and deference that
the United States Constitution allows for the judgment of
prison administrators.”). The district court required no such
showing of the detainees and erred by failing to defer to the
12
reasonable explanation of Guantanamo officials for decisions
within their area of authority and expertise.
Turner next requires that we consider whether the new
policies leave the detainees with some other means to exercise
their right to counsel. Detainees who forgo visits with their
lawyers to avoid the searches can still communicate with
counsel via letter. Supreme Court precedent teaches that
alternative means of exercising the claimed right “need not be
ideal, however; they need only be available.” See Overton,
539 U.S. at 135. But we need not decide whether letters are an
adequate replacement for meetings in person, because even if
we were to agree with the detainees that they are not, the lack
of an alternative “is not conclusive of the reasonableness of
the [regulation]” because the other factors must still be
considered, Beard, 548 U.S. at 532 (plurality opinion)
(internal quotation marks omitted).
Both of the remaining factors cover much of the same
ground as the first and reinforce our conclusion that these
policies are reasonable. See Amatel, 156 F.3d at 196. As to the
third factor, the impact of an accommodation, we have
already concluded that the new search procedures promote the
safety of the guards and inmates by more effectively
preventing the hoarding of medication and the smuggling of
dangerous contraband, and thus the accommodation the
detainees seek would necessarily have a negative impact “on
guards and other inmates.” See Turner, 482 U.S. at 90; Beard,
548 U.S. at 532 (plurality opinion). Allowing counsel
meetings with detainees to take place in the housing camps
instead of Camp Echo would burden “the allocation of prison
resources.” See Turner, 482 U.S. at 90.
13
Finally, the detainees have pointed to no “ready
alternative[]” to the new policies. Id. To be “ready,” a policy
must be an “obvious regulatory alternative that fully
accommodates the asserted right while not imposing more
than a de minimis cost to the valid penological goal.” Overton,
539 U.S. at 136. The detainees’ suggested alternative of
reverting to the old policies does not meet this “high
standard.” Id. Having already determined that we defer to the
military’s judgment that the old policies hinder the
government’s interest in security, we can hardly say that they
are nonetheless “ready alternatives.” In the considered and
experienced judgment of Guantanamo administrators, the old
policies contributed to the troubling lapses in security. We
will not second-guess that determination. See id.; see also
Thornburgh v. Abbott, 490 U.S. 401, 419 (1989) (“[W]hen
prison officials are able to demonstrate that they have rejected
a less restrictive alternative because of reasonably founded
fears that it will lead to greater harm, they succeed in
demonstrating that the alternative they in fact selected was not
an ‘exaggerated response’ under Turner.”).
The district court’s very different take on these reasonable
changes to policy at Guantanamo appears to stem from its
view that the changes in policy were pretextual and the result
of the government’s plan to inhibit detainees’ access to
counsel. It is unclear what role, if any, motive plays in the
Turner inquiry. Compare Hammer v. Ashcroft, 570 F.3d 798,
803 (7th Cir. 2009) (en banc), with Salahuddin v. Goord, 467
F.3d 263, 276-77 (2d Cir. 2006), and Quinn v. Nix, 983 F.2d
115, 118 (8th Cir. 1993). Even if some quantum of evidence
of an unlawful motive can invalidate a policy that would
otherwise survive the Turner test, the evidence of unlawful
motive in this case is too insubstantial to do so. The district
court drew inferences from past conduct by former
14
commanders and dismissed as unbelievable the sworn
statements of military officials. We find such an approach
unwarranted. Although we must not give prison
administrators a free hand to disregard fundamental rights,
this case is a far cry from instances where administrators have
acknowledged their intent to extinguish prisoner rights and
acted accordingly. Cf. Hammer, 570 F.3d at 802-03. The
tenuous evidence of an improper motive to obstruct access to
counsel in this case cannot overcome the legitimate, rational
connection between the security needs of Guantanamo Bay
and thorough searches of detainees.
V
For the foregoing reasons, the decision of the district court
is reversed.