War court prosecutors are pushing back against a judge’s order to temporarily stop female guards from touching an alleged al-Qaida military commander, warning that it could cause “unintended and dire consequences.”
Prosecutors Mikeal Clayton, a civilian, and Army Lt. Col. David Long questioned the judge’s injunction in a Nov. 10 filing that was disclosed for the first time Monday by the Pentagon.
Removing women from the Army force guarding former CIA captives at the prison housing alleged 9/11 mastermind Khalid Sheik Mohammed and others “ignores established precedent requiring deference to prison administrators,” they wrote to Navy Capt. J.K. Waits, the judge who ordered the prison to suspend their use Nov. 7.
They also said female guards have been moving “high-value detainees” since Sept. 24 and are “emeshed and essential ... to the safe and effective function of the HVD camp.” It said there had been no female guards at Camp 7 for two years, but some had earlier been assigned to escort duty.
Defense lawyers say the controversy has stirred discontent in the clandestine prison since Abd al Hadi al Iraqi, accused of running al-Qaida’s army as a war crimes operation after the U.S. invaded Afghanistan, refused to be shackled by a female guard on Oct. 8 — and was forcibly moved by a squad of male troops.
The detainees’ lawyers argue the ex-CIA prisoners have not been touched by female guards since soon after they got to Guantánamo in September 2006 — and the recent about-face ended a period of detente.
Hadi’s lawyers want the judge to direct the camp to stop it permanently, saying that his treatment in that episode and a subsequent forced move to a routine tuberculosis examination Nov. 3 have interfered with their ability to help him prepare for his war crimes trial. If convicted, he would be sentenced to life in prison.
The Pentagon prosecution’s filing left unclear whether the prison was honoring the order. A spokesman for the Southern Command, the only military officer authorized to answer the compliance question, has not responded beyond saying Pentagon and Southcom lawyers were looking at it.
The spokesman, Army Col. Greg Julian, said that 10 percent of Guantánamo prison’s guard force is female, and 3 percent of the Camp 7 guard force is female. He said the next rotation of temporary guards would increase the overall figure.
The prosecution also released the reply — which quibbled with the judge’s use of the term “status quo” in his restraining order — a day after censors restored the words “female” and “male” to a public version of the legal motion on whether a captive could invoke Islam and refuse to be shackled by a woman.
“An order directing their removal from the escort platoon would strip the guard force of critical experience and leadership and could lead to unintended and dire consequences,” it said.
The wording suggests that the recently assigned Camp 7 officer in charge, an unnamed lieutenant colonel believed to be the facility’s first female commander, has been touching the detainees, too.
Several Pentagon defense lawyers have complained of new female guard duties at the detention center’s most clandestine of prisons, called Camp 7.
But Hadi’s lawyers may present the problem to the judge this week in his pretrial hearings. They say that since he was brought to Guantánamo in 2007, only male guards had touched him, with the exception of an optometrist whose hand grazed his earlobe during an examination.
Then on Oct. 8, they argue, the U.S. military breached the status quo — and assigned a female guard to shackle Hadi after a meeting with his lawyers. He refused, was declared noncompliant and forcibly restrained by four male guards.
“Mr. Hadi al Iraqi’s Muslim faith requires him to avoid physical contact with any females to whom he is not married or related,” his U.S. Marine Corps attorney, Lt. Col. Tom Jasper, wrote in a 10-page motion. It was originally released on the court website with each mention of “male” and “female” blacked out, then reposted on the eve of Monday’s hearing with the gender references restored.
Masked guards also promptly forced Hadi, 53, from his cell Nov. 3 after he refused to be shackled by a female guard for a mandatory, routine chest X-ray for tuberculosis, Jasper said outside court Monday.
In that episode, the Marine said, the Iraqi’s arm was bloodied, and he was prescribed pain medication for more than a week. The forced-cell-extraction force was poised to move in that episode, said Jasper. “It looked like it was planned.”
Lawyers could argue about it Tuesday or Wednesday, or get a delay if Hadi’s attorneys decide to call him as a witness and postpone the issue until January. At the court Monday afternoon, defense lawyers and the accused were expected to watch a 10-minute video of the Oct. 8 forced cell extraction that the prison had released to them only as an audio file.
The chief prosecutor, Army Brig. Gen. Mark Martins, said Sunday night that he did not expect the judge to hear testimony from live witnesses. Jasper, Hadi’s attorney, said the prosecution had only Sunday night handed his team affidavits and other information he needed to prepare for the hearing.
Prosecutors argue that the court should not interfere with the running of the detention center, where about 2,000 troops and civilians work and 148 captives are kept. Southcom will not say how many troops are assigned to the prison or how many of them are female.
Meanwhile, at the prison, commanders say the U.S. military is gender-neutral in regard to its assignments — with the exception of supervising the captives when they shower and conducting groin searches.
Hadi’s attorneys say he does not object to the presence of female guards at the prison, where the latest commander is a female lieutenant colonel, but “only when they are required to perform the more intimate duty of shackling and unshackling and other physical contact.”
The attorneys invoke the U.S. Supreme Court’s recent Hobby Lobby religious rights decision in their bid to get the judge to order the prison to return to the practice of not having female guards touch the captives. Prison commanders say there was no policy prohibiting it, but it is possible that duty assignments in past rotations happened to include only men.
Monday, Waits heard three other defense motions in the Hadi case and ruled on none of them:
▪ A bid to have Hadi declared a Prisoner of War, which is different from the “unlawful combatant” designation assigned to all of Guantánamo’s 148 captives. POW status would strip the war court of jurisdiction in the case.
▪ A request for a court order to obtain emails and other information about the timing of the case, announced two days after the controversial May 31 trade of five Taliban prisoners at Guantánamo for POW Sgt. Bowe Bergdahl.
▪ A challenge to the charge sheet as being too broad, packed with extraneous details that could prejudice Hadi’s eventual trial before a jury of five or more U.S. military officers.
Hadi is accused of classic war crimes punishable by life in prison — targeting medical workers and civilians as well as foreign troops in Afghanistan — of denying quarter, attacking protected property and using treachery or perfidy in a series of attacks in Afghanistan and Pakistan between about 2003 and 2004.
He is not charged with murder, but the charging document alleges his troops attacked U.S. targets in Afghanistan that killed unnamed U.S., British, Canadian, German and Norwegian troops and a United Nations aid worker at various times.
It also accuses him of helping the Taliban blow up the monumental Buddha statutes in Afghanistan’s Bamiyan Valley, a UNESCO World Heritage site, in March 2001.
He was arraigned in June, and has had one earlier set of pretrial hearings, during which he got the U.S. Marine defender. The judge has scheduled pretrial hearings through July, suggesting the trial cannot start before summer.
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@CarolRosenberg is live-tweeting from Guantánamo.