A Duel of Letters in the Counsel Access Case
The nearly-singular focus of last week's oral argument in Hatim v. Obama, the counsel access case, was the intrusiveness of JTF-GTMO's genital-area searches. That focus hasn't at all shifted, judging by last Friday's letter filing from the Department of Justice.
Both sides have characterized the search process, and in a manner consistent with their litigating positions.
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The nearly-singular focus of last week's oral argument in Hatim v. Obama, the counsel access case, was the intrusiveness of JTF-GTMO's genital-area searches. That focus hasn't at all shifted, judging by last Friday's letter filing from the Department of Justice.
Both sides have characterized the search process, and in a manner consistent with their litigating positions. At argument, the government suggested that the search procedures were akin to those employed by the Transportation Security Administration, when passengers refuse to go through airport body scanners. Afterwards, long-time detainee lawyer David Remes wrote to the court and protested this account. As Wells noted, Remes said the search procedure was "more invasive and degrading" than the pat-downs sometimes administered by airport personnel.
This brings us to Friday's missive from the Department of Justice. In it, government attorney Edward Himmelfarb qualifies his earlier analogy, of GTMO search procedures to TSA procedures. They are different in certain respects, the lawyer acknowledges---but he cannot quite explain the differences, because TSA procedures are classified as "Sensitive Security Information." Still, Himmelfarb reiterates that the genital-area searches represent "standard Army search procedures," and reflect the "considered judgment of military officials regarding the level of acceptable security risk at a military detention facility." And he challenges Remes's characterization of the searches, as being "far worse" than those conducted by TSA, as inaccurate.
Himmelfarb lastly comments on the detainees' suggestion that the court should consider that guards may implement the search procedures to varying degrees. The record contains no evidence along such lines, according to the government attorney.
Raffaela Wakeman is a Senior Director at In-Q-Tel. She started her career at the Brookings Institution, where she spent five years conducting research on national security, election reform, and Congress. During this time she was also the Associate Editor of Lawfare. From there, Raffaela practiced law at the U.S. Department of Defense for four years, advising her clients on privacy and surveillance law, cybersecurity, and foreign liaison relationships. She departed DoD in 2019 to join the Majority Staff of the House Permanent Select Committee on Intelligence, where she oversaw the Intelligence Community’s science and technology portfolios, cybersecurity, and surveillance activities. She left HPSCI in May 2021 to join IQT.
Raffaela received her BS and MS in Political Science from the Massachusetts Institute of Technology in 2009 and her law degree from Georgetown University Law Center in 2015, where she was recognized for her commitment to public service with the Joyce Chiang Memorial Award. While at the Department of Defense, she was the inaugural recipient of the Office of the Director of National Intelligence’s General Counsel Award for exhibiting the highest standards of leadership, professional conduct, and integrity.
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