Senior Defense Dept. officials decry Guantánamo judge’s female guard ban

The Pentagon’s top two leaders on Tuesday decried as “outrageous” an Army judge’s nine-month-old ban on female guards touching the five alleged 9/11 conspirators as they move them to and from court and legal meetings.

Secretary of Defense Ash Carter and Gen. Joseph Dunford Jr., chairman of the joint chiefs of staff, criticized the ban in response to a question from New Hampshire Sen. Kelly Ayotte during a Senate Armed Services Committee hearing in Washington, D.C. Ayotte and two other GOP senators visited the prison Friday, and said they met with female guards upset by the restriction.

“I think it is counter to the way we treat service members, including women service members, and outrage is a very good word for it,” Carter said, incorrectly attributing the ban to a federal judge — not the chief of the war court judiciary, Army Col. James L. Pohl.

The five alleged Sept. 11 plotters complained through their lawyers last year that Islamic and traditional doctrine require they have no physical contact with women other than family members. They claimed that, until a year ago, prison commanders had provided the religious accommodation of not being touched by female soldiers.

Pentagon-paid U.S. defense attorneys got Pohl to issue an emergency, temporary restraining order against the use of female guards in January, pending testimony and legal arguments on the subject.

As it happens, Pohl has listed the ban on this week’s docket for pretrial hearings in the case of the five men facing a joint death-penalty trial as the alleged plotters of the Sept. 11, 2001, terror attacks. Whether it would actually be heard, however, was unclear because the majority of the current session’s 40-item agenda has been sidelined by one alleged plotter’s interest in functioning as his own defense attorney.

A military lawyer for the alleged plot mastermind, Khalid Sheik Mohammed, said the remarks were troubling in light of the Senate Torture Report showing the CIA’s enhanced interrogation techniques included sexual humiliation.

“These men have been subjected by the U.S. government to documented, systematic sexualized attack on their Islamic identity,” Marine Maj. Derek Poteet, Mohammed’s detailed military counsel, told the Miami Herald. “So forced touching by guards of the opposite sex is extremely inappropriate.”

Poteet also called it “also extraordinarily inappropriate for these respected military and civilian leaders to inject themselves into the matters that are currently in litigation in a military commission by a military judge, raising the specter of unlawful command influence.”

Since the Pentagon opened the war-on-terror prison camps here in 2002, female guards routinely escorted most of the prisoners to and from appointments, classes, everything but showers. But the 9/11 defendants got here in 2006, and are segregated in the secret Camp 7 since their transfer from CIA black sites, where they were subjected to sexual humiliation.

In January, some female guards working at the prison lodged gender discrimination complaints against Pohl and another war court judge. The U.S. Southern Command, which oversees prison operations here, conducted an investigation but would not release its findings. The Herald filed a Freedom of Information request for the information, to no response.

At the Senate Tuesday, Dunford quoted fellow Marine Gen. John Kelly, the Southcom commander who’s been outspoken in his criticism of the judicial order, as calling it “outrageous,” a word Carter echoed.

“It ought to be fixed. It hasn’t been to date,” Dunford said, noting it’s “being worked by lawyers.”

Ayotte sought their opinion at the hearing dedicated to analyzing Obama administration strategy in the Middle East. She noted the ongoing discussion of expanding the combat roles of women in the U.S. military.

Later, at a press conference, she characterized the ban as a manipulation of the U.S. legal system by “the worst of the worst.”

“As the women guards at Guantánamo told us, they just want to do their jobs,” she said. “And they can’t believe that we are allowing terrorists who murdered almost 3,000 people to dictate how U.S. service members do their jobs — simply because they are women.”

Testimony on the female guards issue in a different war court case, that of alleged al-Qaida commander Abd al Hadi al Iraqi, showed that the military had increasingly been sending female troops from National Guard units to temporary nine-month tours at the prison, and women had increasingly been assigned to Camp 7.

The judge in that case, Navy Capt. J.K. Waits, imposed the first ban — restricted only to movements to and from legal meetings, the domain of the court — but lifted the order in February after hearing witnesses testify and legal arguments.

At Southcom Tuesday, Army Col. Lisa Garcia said by email that “multiple soldiers” had filed “formal Equal Opportunity complaints” at the prison in response to the judge’s orders, but would not elaborate. “The complaints remain open pending a military commissions hearing and final order on the matter,” she said.

This story was originally published October 27, 2015 at 9:32 PM with the headline "Senior Defense Dept. officials decry Guantánamo judge’s female guard ban."