It should be added that when the government's lawyer Sarah Fabian made this argument before the 3-judge appellate panel, two of the judges responded --
“Are you arguing seriously that you do not read the agreement as requiring you to do something other than what I just described: cold all night long, lights on all night long, sleeping on concrete and you’ve got an aluminum foil blanket? I find it inconceivable that the government would say that that is safe and sanitary.”
-- Judge William Fletcher.
“You’re really going to stand up and tell us that being able to sleep isn’t a question of ‘safe and sanitary’ conditions?... You can’t be sanitary or safe as a human being if you can’t sleep.”
-- Judge Marsha Berzon