Defense lawyers for the alleged 9/11 plotters capped two weeks of hearings with testimony about the judge’s 9-month-old order restricting female guards’ actions that in the same week drew top Pentagon brass condemnation.
The judge, Army Col. James L. Pohl, however, made clear that he would not rule on whether to rescind his controversial no-touch order regarding female guards before hearings resume in December, when more guards testify.
At issue is whose rights trump whose: Female Army guards who want to do the same duties as their male counterparts, except maybe frisk or supervise showers of the alleged Sept. 11 plotters at a secret lockup here, Camp 7. Or the Muslim captives who argue that being touched by women other than close female relatives violates their traditions and religion.
Since January, Pohl has forbidden female guards from touching the five men awaiting a death-penalty tribunal as they go to and from court and legal meetings until he hears full testimony and legal argument— an order that infuriated some in the Pentagon and U.S. Senate.
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So much so that, before this week’s hearings, a three-member Congressional delegation came to this base on a fact-finding mission and during a Senate Armed Services Committee hearing this week Defense Secretary Ash Carter and Gen. Joseph Dunford Jr., chairman of the joint chiefs of staff, declared Pohl’s order “outrageous.”
In court, a Colorado National Guard staff soldier called “Staff Sgt. Jinx” said she had only worked at Camp 7 during the time of the order but described it as both a scheduling and performance review challenge for supervisors. Female soldiers who can’t serve on the 9/11 defendants’ escort squads — three- to six-troop teams that move the alleged terrorists from place to place in shackles — are at risk of having a vacuum in their service records.
Defense lawyers had first asked Pohl to delay hearing any evidence on the question this week in light of the fresh comments by Pentagon brass at the Senate. Attorney Walter Ruiz, for alleged conspirator Mustafa al Hawsawi, on Friday called the remarks illegal, and “deliberately aimed at manipulating and orchestrating the reversal of a judge’s order in a military courtroom.”
So, with Sgt. Jinx in court, the lawyers focused on what input she gave members of Congress who visited the base on a female-guard, fact-finding mission focused on the judge’s order.
“I won’t discuss that with you. Where we met and what we discussed is of no relevance to this,” the Colorado National Guard soldier told attorney David Nevin, the death-penalty defender for the alleged mastermind Khalid Sheik Mohammed. Pohl cautioned the soldier that the judge decides what is relevant and then in the course of the day allowed lawyers to exact scant few details.
Jinx’s boss, a major who was not identified, said senior prison leadership asked for a list of female guards who might meet with members of Congress. The sergeant said she went knowing it was about the judge’s order but expecting the politicians to brief her, not she them. She would not elaborate.
Jinx said she thought she met with the politicians before these hearings began Oct. 19. She didn’t recall the politicians’ names but listed their states — “one of the Carolinas, one of the Virginias and New Hampshire” — clearly referring to the Oct. 23 fact-finding mission by Sens. Kelly Ayotte of New Hampshire, Tim Scott of South Carolina, and Shelley Moore Capito, of West Virginia.
They arrived after the sergeant was told she would be called as a witness.
Pohl, who as a colonel would be retired from the Army were he not serving as chief judge of the Guantánamo war court, was repeatedly dismissive of the idea that political and military leaders could influence his decision making, but said he would allow argument on that at a later hearing.
Earlier this year, when the Pentagon ordered war court judges to move to Guantánamo to speed along the trials, Pohl froze all Sept. 11 trial proceedings until Deputy Secretary of Defense Bob Work withdrew the move-in order — which he did two days later.
The judge reminded the lawyers about that episode on Thursday and said if the leadership activity constituted “unlawful command influence” — illegal meddling in the independence of the judiciary — he’d deal with it.
“I’m not saying you won’t get a remedy. I’m not saying this is not an issue,” Pohl told a Marine defense attorney. “I’m just saying it’s not ripe, and I fail to see why it cannot be handled in the normal course of business.”
That essentially provided the defense attorneys with more time to look into the timing of the senators’ fact-finding mission and the senior Pentagon brass’ remarks before hearings resume in mid December.
Army Brig. Gen. Mark Martins, the chief prosecutor, said the two-week session had made good progress: