Is a military mea culpa in the works?
In deciding to let female escort guards once again touch the alleged 9/11 plotters — starting just before Halloween — the trial judge ruled that the U.S. military has “legitimate government interests in gender-neutral guard staffing” at Guantánamo’s clandestine Camp 7.
But Army Col. James L. Pohl, the judge, said he’d return those female soldiers to escorting high-value-detainees to court even sooner if senior Pentagon leaders “take appropriate action to absolve any taint” caused by their criticism of Pohl’s temporary restraining order in the first place.
In short, Secretary of Defense Ash Carter and Marine Gen. Joseph Dunford Jr., chairman of the joint chiefs of staff, decried Pohl’s original no-touch order in Congressional testimony Oct. 27 — criticism that Pohl ruled looked like an unlawful effort to meddle in the independence of the judiciary.
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Pohl eventually did lift the ban in a 39-page decision that sided with the prison against the five men accused of orchestrating the Sept. 11, 2001 attacks that killed nearly 3,000 people. But he said he was extending it until Oct. 28 in light of the apparent unlawful influence, the second such finding in a year against Pentagon officials.
The Pentagon released the judge’s ruling after a four-day outage of its war court website that boasts ‘Fairness * Transparency * Justice’ and after a security scrub that blacked out an entire finding by the judge.
The judge did not say specifically what Carter and Dunford should do to get it lifted sooner. But he noted in his decision that after “a similar imbroglio in 2013” over “intemperate and ill-informed comments” then Secretary of Defense Chuck Hagel issued a memorandum on the “integrity of the military justice process.”
At the Pentagon Tuesday, Navy Cmdr. Gary Ross said the Department of Defense was “reviewing the order for any appropriate action.” At the U.S. Southern Command, a spokeswoman declined to offer a comment on behalf of her former commander, now retired Marine Gen. John F. Kelly, who in January boasted, “I run Guantánamo Bay.”
But it was the latest salvo in the awkward episode of allegations of sexism and insensitivity to Islam sparked by Pohl’s Jan. 7, 2015 restraining order.
In it, Pohl forbade female guards to touch the accused terrorists between court and legal meetings after defense lawyers for the alleged plot mastermind Khalid Sheik Mohammed and four co-defendants argued the use of women as escort guards was a new withdrawal of a religious and cultural accommodation. Some members of Congress declared their outrage after Kelly personally apologized to some troops at Guantánamo in July 2015 that he had failed to get it lifted.
The judge found no evidence that a female guard at Guantánamo’s Task Force Platinum tried to “sexually abuse a detainee.”
The lawyers wrapped up their arguments at the war court in late February. Prosecutors cast it as an issue of staffing and sexism, and had a witness testify that some female soldiers quit the Army over the unequal treatment. Defense lawyers described the no-touch order as a long accepted religious and cultural accommodation, and invoked examples of the CIA’s using sexual and religious humiliation against the Sept. 11 defendants during their 2002-06 detention in secret locations now referred to as “dark sites.”
The judge accepted the captives’ claims that the prohibition on physical contact with “unrelated females” was “a bona fide religious belief.” But he rejected the argument that when female guards handled them they “relived trauma” linked to previous torture.
Pohl also ruled that Camp 7 leaders added female soldiers to escort duty not “to punish, traumatize, sexually abuse, or torture any detainee.” Nor did he find an example of a female guard on a transport team trying “to sexually abuse a detainee.”
He noted that while female guards at Guantánamo don’t watch captives shower “or otherwise in the nude” the escort duty does not require “touching of the genital area of the accused.”
One of the judge’s most vocal critics — Marine Gen. John F. Kelly, who boasted, ‘I run Guantánamo Bay’ — has since retired from service.
He also found that his order harmed morale and troop readiness at Task Force Platinum, the special unit of guards assigned to Camp 7, where former CIA captures are kept. And he found something else, called item G., which security officers censored from public view.
Southcom commander Adm. Kurt Tidd disclosed in March that 15 troops had filed discrimination complaints over the order. His spokeswoman said eight were male, and all 15 were lodged between Jan. 20 and Feb. 3, 2015.