An Update in the GTMO Counsel Access Case in the D.C. Circuit

Two developments in Hatim et al. v. Obama et al., the D.C. Circuit case regarding JTF-GTMO's detainee access procedures for defense counsel: one, the filing of additional briefing regarding the stay of a lower court order; and two, a dispute over a filing deadline. By way of background, GTMO rules had required detainees to undergo genital-area searches before and after meetings or telephone calls with defense counsel. Earlier this summer, District Court Judge Royce Lamberth invalidated this and other procedures.  The government appealed the decision, and meanwhile sought from the D.C. Circuit---and quickly won---an emergency, administrative stay of Judge Lamberth's order, pending the completion of full stay briefing in the appeals court. As for that briefing, the United States moved for a full stay in July, and in its brief derided Judge Lamberth's order (unsurprisingly) as an intrusion upon military discretion:

The district court has now taken the unprecedented step of restricting a military commander from implementing routine security procedures at a detention facility holding enemy forces, despite the universally recognized need for the maintenance of discipline and order in law-of-war detention facilities. In doing so, the court disregarded the compelling security concerns articulated by the commander of the Joint Detention Group (JDG), including the discovery of weapons and other contraband and the suicide of a detainee who had hoarded medication. In fact, the district court went so far as to suggest that the security procedures were merely pretexts designed to deny detainees the right to meet with counsel, even though the procedures apply across the board (and are not limited to meetings with counsel), and even though counsel visits and phone calls have continued under the procedures.

The government thus opposed, as it had initially, enforcement of Lamberth's motion pending resolution of the appeal:

The district court's assertion of jurisdiction is contrary to a clear directive from Congress that courts lack jurisdiction to entertain detainees' claims regarding conditions of confinement.  The court also improperly substituted its judgment for that of a military official, imposing its own set of rules governing how detainees will be searched, where meetings with counsel will be conducted, and which vehicles the military must use to transport detainees. The decision is not only incorrect as a matter of law, but also creates substantial security risks at the Guantanamo detention facility.

Last Friday, Hatim and company urged the D.C. Circuit to deny the government's motion.  From the detainees' opposition:

If a stay is granted, the abrupt termination in access to counsel for those detainees that led to Chief Judge Lamberth’s decision will continue until the appeal is resolved, making it difficult if not impossible for counsel to prosecute their habeas cases. The denial of the stay and a return to the status quo ante will work no hardship on the Government, monetary or otherwise, but will merely require it to follow the procedures that it followed successfully for years and with which it is fully familiar. There is no evidence that the old search procedures were ever ineffective or inadequate, or that the meetings or telephone calls with counsel had ever resulted in disruption, disorder, or the receipt of contraband. The harms that the new procedures are purported to address are at best minimal and speculative. The Government has also shown no reasonable likelihood that it will prevail on the appeal[.]

Which brings us to the government's reply brief.  On Friday, lawyers for the United States asked to extend the deadline for that document's filing, from August 12th to August 15th. The detainees today opposed the delay, and argued that, among other things, the extension request conflicts with the government's apparent "hurry-up" approach to obtaining the administrative stay to begin with.