Legal Commentary

Federal Judge Upholds Visual Cavity Searches of al Qaida Defendant

By Jeralyn

As we wrote last month, Ahmed Ghailani, who was moved from Guantanamo to New York to face trial on charges related to the 1988 U.S. Embassy bombings in Africa, has refused to attend court because he objects to the visual cavity searches of his rectum. The Court's May 4 ruling is here.

After hearing expert testimony on how the procedure causes Ghailani PTSD flashbacks and renders him unable to assist in his defense, in violation of the Sixth Amendment, the Judge has now issued another order denying relief to Ghailani (available here.) It describes the visual cavity search and the digital cavity search, probably with more detail than you care to know. [More...]

The procedure to which he objects:

Ghailani's lawyers claim the searches, which require him to strip, squat and display his rectum so that correctional officers can determine whether he has secreted a weapon, cause horrible memories of the "enhanced interrogation techniques" used by the CIA at a black site following his arrest in Pakistan in 2004.

Ghailani argued other procedures could adequately protect security of guards: 24-hour solitary confinement, no contact visits, “three man hold” and use of cuffs and shackles for transport, and one-piece jumpsuits that zip in the back.

The Judge sided with the Government:

The challenged prison regulation – namely, the requirement of visual inspection of defendant’s body cavities as part of a standard visual search performed whenever he travels to or from court – is justified by the legitimate governmental interest in protecting the safety of prison and court personnel and other inmates. The Court’s intervention in this matter would be inappropriate.n Accordingly, the defendant’s motion for an order directing the BoP to cease and desist from employing “body cavity searches” as a prerequisite to his attendance at court appearances in the instant case is denied.

The visual cavity search regulation is 28 C.F.R. § 552.11,“Searches of Housing Units, Inmates and Inmate Work Areas,” dated June 30, 1997.

it requires the inmate to undress and to bend over or squat briefly in order to display his rectum to the officer conducting the search. The government contends that the visual search policy described above is necessary in order adequately to protect inmates, prison and courtroom personnel, and the general public from the danger that an inmate may secrete weapons or other contraband in his body cavities. It applies without exception to all inmates at the MCC.

As to the digital search:

This “visual search” is distinguished from the “[d]igital or simple instrument search,” which
involves “inspection for contraband or any other foreign item in a body cavity of an inmate by use of fingers or simple instruments” and may be conducted only by designated health personnel upon approval of the warden and upon reasonable suspicion. 28 C.F.R. § 552.11(d).

Full post as published by TalkLeft on June 20, 2010 (boomark / email).