A military judge on Tuesday left intact his order forbidding female guards to touch an alleged al-Qaida commander while he is being transported to and from legal meetings, rebuffing arguments that the ban disrupts the operation of this base’s most clandestine prison.
“How hard is it for just one of the five men versus the one woman to be the one who actually shackles and unshackles the accused?” said Navy Capt. J.K. Waits, the judge, agreeing to decide the overarching issue in late January if the defense gets to gather facts to argue its side.
Waits also found that the government thwarted efforts by defense lawyers for the alleged war criminal, Abd al Hadi al Iraqi, to prepare to argue that a new practice of using female guards to shackle him violated “a deeply held religious conviction.”
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 Shiite Muslim man refused, and a squad of male soldiers forcibly shackled and moved him.
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From 2012 until September, according to Hadi prosecutors, only men worked as guards at the prison for former CIA captives, Camp 7, which holds the alleged 9/11 mastermind Khalid Sheik Mohammed, Hadi and about a dozen men.
Briefly, before the judge cut him off, the deputy prosecutor in the case, Army Lt. Col. David Long, offered a confusing and at times contradictory portrayal of the consternation the no-touch order has caused at Camp 7.
It applies only to Hadi, and only in his transport to meet his lawyers. But Long said “it reverberates up and down the chain of command” because 25 percent of the senior soldiers supervising Camp 7’s escort platoon are women.
By late January, a new rotation of soldiers will make one-fifth of all guards females, said Long, and “have an over 30 percent impact on the escort platoon.”
At one point, he suggested, to comply with the order and avoid “the incidental touch,” the military had to reassign all female guards and their commanders away from Hadi’s movements. Then he announced that a first lieutenant in the rear of the court, a woman, was the officer-in-charge.
Mostly, though, the judge shut him down. He noted that the prosecution or the prison had denied Hadi’s Marine attorney access to guards as potential witnesses, released documents to them on the eve of the hearing and only showed them a video of Hadi being forced from a cell Tuesday morning.
In the absence of a defense investigation, the judge said, there was no way for Hadi’s lawyers to challenge the prosecution’s argument.
The hearing went into recess until Jan. 26. Hadi’s lawyer, Jasper, said the Iraqi might testify then on the female guard issue. If so, he said, that would probably take place in a closed session because it would involve classified information.
Follow @CarolRosenberg on Twitter, live tweeting this week at Guantánamo.