Some female soldiers at the prison’s secret lockup for former CIA captives have filed gender-discrimination complaints against two military judges who are forbidding women from handling prisoners to and from legal meetings.
One of the judges, Navy Capt. J.K. Waits, announced the development Monday at a hearing in the case of Abd al Hadi al Iraqi, accused of committing war crimes as commander of al-Qaida’s Army in Afghanistan after the 2001 U.S. invasion.
It’s the latest wrinkle in an ongoing tug of war over an apparent new assignment of female guards to escort duty moving so-called high-value captives to legal appointments from Camp 7, the secret lockup at Guantánamo where the U.S. keeps former captives of the spy agency’s so-called Black Site program. The prisoners say that, for years, only male soldiers moved them, out of respect for their religious and cultural belief that only women in their family can touch them.
The prison defends the male-female shackling and escort duty as consistent with the Pentagon’s commitment to gender neutrality. It says, however, that only men still supervise Guantánamo prisoners’ showers and conduct genital searches.
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The issue arose in October when, according to Hadi defense lawyer Marine Corps Lt. Col. Tom Jasper, a female guard, for the first time since Hadi got to Guantánamo in 2007, tried to shackle him. The Muslim man refused, and a squad of male soldiers forcibly shackled and moved him back to his Camp 7 cell.
Waits responded in November with an injunction against the use of female guards. He will hear arguments on whether to keep the ban this week. Defense lawyers characterize it as a religious-rights issue at the prison that highlights its sensitivity to captives’ Muslim traditions and religion. They have invoked the U.S. Supreme Court’s Hobby Lobby religious accommodation decision.
The female guard issue is part of a long list of conditions-of-confinement challenges at the war court to shifting prison practices for former CIA detainees whose harsh treatment was revealed in the recently released Senate “Torture Report.”
Defense attorneys protest that small changes disrupt the peace and thwart attorney-client trial preparation for the men who spent years disappeared into the CIA’s dark sites — without benefit of lawyers or Red Cross visits.
In the case of the alleged USS Cole bomber, who apparently doesn’t care if he is touched by women guards, his attorney said Monday that he was preparing a “shaving motion” over guards allegedly no longer allowing the captive to shave before meetings with his lawyers. The guards have decided that Saudi Abd al Rahim al Nashiri can only shave on Fridays, said Rick Kammen.
At the prison, Navy Capt. Tom Gresback replied that the operating manual limits shaving to once a week. “Standard operating procedures allow detainees the use of clippers one day each week,” the detention center spokesman said by email Monday.
Guards come and go on nine- to 12-month tours, and practices change for the ex-CIA captives who have spent more than a decade in detention, the last eight years at Guantánamo.
“One of the things that people with Post Traumatic Stress Disorder need is consistency,” said Kammen, whose client was subjected to a mock execution and rectal rehydration in CIA custody and has been diagnosed as suffering from PTSD. “As long as they’re so damaged, all these little things just get in the way of the relationship.”
In the female guard issue, an Army judge, Col. James L. Pohl, has issued a similar restraining order in the Sept. 11 conspiracy case, preventing female guards from touching the alleged 9/11 mastermind Khalid Sheik Mohammed and four co-defendants. Those five men are accused of training, financing and otherwise assisting the 19 hijackers in the terror attacks that killed nearly 3,000 people at the World Trade Center, Pentagon and at a Pennsylvania field.
Pohl filed a notice his case Monday that a complaint had also been filed against him, according to a 9/11 case defense attorney, Air Force Capt. Michael Schwartz.
Pohl hadn’t seen the complaint, according to the notice, but said it was “filed by … female guards in regard to [the Commission’s] interim order, AE254JJ.”
Prison spokesmen provided no details on the complaint filed under the military’s Equal Opportunity program, whose motto is “Treating People with Dignity and Respect.”
Reporters arriving for this week’s war court session Sunday found a How-To brochure with the contact information of a newly assigned Air Force non-commissioned officer responsible for receiving such complaints posted on a bulletin board inside the reporters’ work room.
It provided email and phone contacts for the prison’s Equal Opportunity Manager, along with her photograph and the slogan: “Equal Opportunity: ‘A First Resource … Not a Last Resort.’”
Waits said that he was notified on Friday by the chief of the Navy/Marine Corps judiciary, a female officer, that the complaint was filed at the U.S. Southern Command, where Marine Gen. John F. Kelly has oversight of the prison. It was unclear whether Kelly would decide the sexual-discrimination complaint.
The prison had no comment on the complaints. But a military official who was not authorized to be identified said the women had done it through the detention center’s Equal Opportunity office.
At the Pentagon Tuesday, a spokesman, Lt. Cmdr. Nate Christensen, said Tuesday that Southcom and the different military services were handling the complaint — not the Defense Department’s Office of Diversity Management and Equal Opportunity, as one news agency had reported.
“The Department encourages resolution of workplace disputes and allegations of discrimination at the lowest level using the chain-of-command,” Christensen said by email from the Pentagon.
That would suggest it was being looked at by the U.S. Army, Pohl’s service, and Navy, Waits’. A next step could involves the military’s Inspectors General.
Waits, like Pohl, said he had not seen the complaint. He said in court Monday that he did not believe it disqualified him from hearing the prosecution’s challenge to his no-touch order later this week.
“This was a lawful judicial order by a qualified and properly detailed military judge to this commission,” he said, declining to recuse himself. “Furthermore, I am not aware of any administrative equal opportunity grievance procedure that affords a person a cognizable avenue to challenge a judicial ruling or order such as this.”
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Verbatim | Navy Capt. J.K. Waits
“I have not seen the complaint. All I have been told is that it is an equal opportunity complaint related to the commission’s temporary order that women guards shall not have physical contact with the accused. And, again, that order only relates to movements to and from meetings with attorneys and to and from this courthouse.
“This narrowly tailored order, again, is for the sole purpose of maintaining the forward progression of this commission related to this motion and other proceedings of this commission.
“This was a lawful judicial order by a qualified and properly detailed military judge to this commission. It goes without saying that rulings and orders of judges in the course of litigation never makes everyone happy, be it parties, victims, or other entities or persons collaterally affected by rulings of judicial bodies. By its nature, the outcome of litigation is that some people’s positions are advanced and others are not. In this instance, one or more women guards assigned to the Joint Task Force apparently believe that their interests have been harmed or set back in some way. This is not a novel phenomenon for me or any other judge.
“Furthermore, I am not aware of any administrative equal opportunity grievance procedure that affords a person a cognizable avenue to challenge a judicial ruling or order such as this.”
Source: Military Commission transcript of Jan. 26, 2015 Guantánamo hearing.