A military judge has lifted his restraining order and is once again allowing female prison guards to touch a war-crimes suspect while moving him between Guantánamo’s most clandestine prison and legal appointments.
Navy Capt. J.K. Waits lifted the restriction in a 14-page ruling Feb. 24 that concluded the captive was not entitled to the protections of Congress’ Religious Freedom Restoration Act that underpinned the U.S. Supreme Court’s recent Hobby Lobby decision.
Waits added that he agreed with the recent prison practice of mixing men and women on the Army’s escort guard team. “The evidence before the commission shows the policy is in furtherance of the legitimate governmental interests of running a well-functioning detention facility and eliminating gender discrimination,” he wrote.
Last year, the judge forbade female guards from touching Abd al Hadi al Iraqi, 54, who invoked Islamic and traditional doctrine and said he had only been handled by men at Guantánamo. Hadi, captured in Turkey and sent here in 2007, is accused of commanding al-Qaida’s army in Afghanistan after the 2001 U.S. invasion and could be sentenced to life in prison if convicted.
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Some guards had responded by lodging gender discrimination complaints against Waits and the military judge in the Sept. 11 mass-murder case, who issued a similar no-touch order. The U.S. Southern Command investigated but has had no comment.
Waits made no mention of the guards’ bias complaint in his decision.
Prosecutors opposed the religious-accommodation request as at odds with a Pentagon move toward greater gender neutrality in the military. One dismissed the question in court last month as a manufactured al-Qaida conspiracy.
Marine Lt. Col. Thomas Jasper, Hadi’s Pentagon-paid defense attorney, cast the issue in an email as “a very simple accommodation so a devout Muslim, pending trial, can continue to practice his religion without restriction and being subjected to a violent force cell extraction before attending mandatory medical appointments, legal meetings, court sessions and all other essential visits.”
Jasper sought to meet with Hadi on Monday but he didn’t show up, an apparent sign that female guards were back on his escort duty.
“We are contemplating appellate and other procedural alternatives,” the Marine colonel said.
The issue erupted in October inside the clandestine Camp 7 lock-up when some female soldiers were for the first time assigned to an escort unit that shackles and moves prisoners from their cells to medical, legal and Red Cross meetings. Hadi refused to be touched by a female soldier and was forced from his cell by an Army tackle-and-shackle team.
Testimony last month showed the Massachusetts and Colorado National Guard units, assigned to guard duty at Camp 7 for former CIA black-site prisoners, first tried to mobilize only men to the so-called escort-guard assignment but added women after they couldn’t get a sufficient number of skilled volunteers with appropriate security clearances.
A National Guard spokesman subsequently said Southcom first tasked the guard in 2012 to staff Camp 7 for a 2013 deployment with a requirement that stated “males only.”
Spokesman Kurt Rauschenberg said by email Feb. 5 that “follow-on Southcom requirements did not specify gender.” So, “in September of 2013 the requirements were open to male and female National Guard personnel.”
Before Massachusetts and Colorado, it provided military police units from North Dakota and Louisiana to the mission.
At Southcom, spokeswoman Army Col. Lisa Garcia elaborated by email Feb. 10: “The manning of detainee camps has been gender neutral since 2006 with one exception from 2011-2012. During that period, the Military Police company that provided security within the camp was requested to be all male by the Joint Task Force commander,” the commander of a temporary unit running the temporary prison.
In response to a question about whether Southcom once used an all-infantry, and therefore necessarily male, Army force at Camp 7, Garcia replied: “The internal security force has been Military Police [Army] or Master of Arms [Navy] since 2008.”
The CIA transferred its captives to Guantánamo in September 2006, and President George W. Bush announced they were in Defense Department custody.
But the recently released Senate Intelligence Committee “Torture Report” said those captives remained under the operational control of the CIA even at Guantánamo. Lawyers for some of the former CIA captives facing death-penalty trials say that contradiction leaves as an open question when, if ever, the U.S. military assumed full responsibility for the clandestine lock-up whose costs and location are classified.
Hadi is due back in court for a week of pretrial hearings March 23.
Meantime, the Miami Herald has filed a Freedom of Information Act request for details of the guards’ sex-discrimination complaint — who investigated it, when the guards filed it, what remedies they sought, and what the investigators concluded. Southcom has not responded.
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Statement | Defense attorney
We respect the decision by the Commission, but believe that Judge Waits and JTF GTMO misunderstand how important Hadi al-Iraqi's religion is to him. Again, we are asking for a very simple accommodation so a devout Muslim, pending trial, can continue to practice his religion without restriction and being subjected to a violent force cell extraction before attending mandatory medical appointments, legal meetings, court sessions and all other essential visits. ▪ Marine Lt. Col. Thomas Jasper, defense attorney