Because President Obama has been unable to carry through on his promise to close Guantánamo, 149 men remain detained there today – as far from the public’s attention and interest as they are from the foreign battlefields on which most of them were captured well over a decade ago. Whatever the reason for our loss of interest in Guantánamo, we ignore the continuing plight of the detainees at our peril: As a ruling on Friday from the federal appeals court in Washington illustrates, their ongoing detention is provoking judicial decisions eviscerating one of our most cherished constitutional protections—the “great writ” of habeas corpus, which allows any prisoner to go before a court to determine whether their detention is lawful.At issue in Hatim v. Obama are controversial search procedures instituted by military officials at Guantánamo in May 2013, ostensibly in response to the discovery of contraband in one of the detainee’s cells. Among other things, the new rules mandated that the detainees be subjected to an intensive full-body search, including a “frisk” of their genital area, before they could leave their cells to go anywhere – including to meet or even speak by telephone with their lawyers. Because many of the detainees refused to be subjected to such searches on religious grounds, they claimed that the procedures should be invalidated because they had the effect – and perhaps even the intent – of denying them access to counsel.
In a lengthy ruling handed down last July, then-Chief Judge Royce Lamberth agreed. Because the government couldn’t demonstrate either that such intrusive searches were necessary or that the less intrusive alternatives proposed by the detainees would be ineffective, he held that the procedures interfered with the detainees’ constitutional right to pursue habeas relief insofar as they interfered with their access to lawyers. “For Guantanamo detainees,” he wrote, “it is undisputed that access to the courts means nothing without access to counsel.”
On Friday, the D.C. Circuit reversed. In a cursory opinion, Judge Thomas B. Griffith held that the flaw in the district court’s ruling was in not following a 1987 Supreme Court decision –Turner v. Safley – that generally mandates significant deference to prison officials when it comes to policies that have the effect of infringing upon prisoners’ constitutional rights. According to the Court of Appeals, Turner stands for the proposition that the government may generally interfere with any of the detainees’ constitutional rights so long as the interference bears a reasonable relationship to a “legitimate penological interest” – such as the elimination of contraband.
The problem with the court’s reasoning is subtle, but critical: Turner is about how courts should apply generally applicable constitutional rights in prisons, and is predicated on the assumption that individuals are entitled to diminished constitutional protection while serving a criminal sentence. Thus, the government needn’t meet as a high of a burden to justify infringing upon, for example, the First Amendment rights of individuals serving time as compared to the rights of those not behind bars.
Even assuming that the same standard should apply to prisoners who have never been convicted of a crime (a debatable assumption, at best), it makes no sense to apply it to the constitutional right to habeas corpus, nor did Turner suggest otherwise. After all, habeas is not a substantive right so much as it is a right to a remedy – and one that only belongs to prisoners. That’s why, for over 70 years, the Supreme Court has stressed that government officers “may not abridge or impair [a] petitioner’s right to apply to a federal court for a writ of habeas corpus”; unlike other constitutional rights, habeas would be meaningless, and not just diluted, if it could be infringed in the name of “legitimate penological interests.” As Judge Lamberth concluded in the district court, “The right of habeas corpus … is most valuable as a right to one who is incarcerated. To restrict a detainee’s access to habeas corpus solely by virtue of his detention would run counter to the writ’s purpose and would eviscerate the writ.”
By nevertheless applying Turner and upholding the genital search procedures, the D.C. Circuit effectively signaled that any government interference with the detainees’ access to habeas corpus will be upheld so long as it is reasonably related to legitimate prison goals. Taking that logic to its limit, nothing would stop the government from policies that would intentionally cut off the detainees’ access to habeas altogether – so long as those policies furthered a legitimate interest. Along the way, the Supreme Court’s 2008 decision recognizing that the Guantánamo detainees are constitutionally entitled to habeas review would be worth little more than the paper on which it’s been printed.
To be sure, critics have been accusing the D.C. Circuit for years of handing down rulings that are denuding the Justices’ 2008 decision – and habeas – of any force. Until now, though, that charge was largely directed to rulings on Guantánamo-specific issues, such as who can be held as an “enemy combatant,” or what burden of proof the government must meet to satisfy the 2001 Authorization for the Use of Military Force. Whatever one thinks of the merits of those rulings, no one could contest their limited scope, which may have a lot to do with why the justices have left them intact.
Friday’s ruling is different. By holding that Turner’s deferential standard applies to the right of the Guantánamo detainees to pursue judicial review in the first place, the Court of Appeals necessarily held that Turner applies to the habeas right in general – and thereby dealt a blow to all prisoners, state and federal, who would seek a judicial remedy to challenge the legality of their detention. Whether or not we care about Guantánamo anymore (or ever did), such a frontal assault on “the great bulwark of our liberty” demands the attention – and reprobation – of anyone committed to the rule of law, including the nine justices of the Supreme Court.
Stephen I. Vladeck is Professor of Law and Associate Dean for Scholarship at American University.