Judge rejects prosecution bid to lift female guard no-touch order at Guantánamo

U.S. Army military judge Col. James L. Pohl, shown in this July 7, 2005 file photo at Fort Hood, Texas, is the chief of the Guantánamo military commissions judiciary.
U.S. Army military judge Col. James L. Pohl, shown in this July 7, 2005 file photo at Fort Hood, Texas, is the chief of the Guantánamo military commissions judiciary. ASSOCIATED PRESS

The military judge in the Sept. 11 case on Thursday rejected a prosecution bid to lift his order forbidding female guards from handling the alleged terrorists being escorted to court and legal meetings.

The judge, Army Col. James L. Pohl, issued a temporary restraining order on the use of female guards in January and this week heard testimony on whether to keep the restriction that has outraged Pentagon brass and some in Congress. After hearing the commander of the force that guards 107 captives call it sexist, case prosecutor Ed Ryan asked the judge to lift it, even before closed, classified testimony in February.

Defense lawyers drowned Ryan out, protesting the argument was premature. Pohl silenced the lawyers and denied the request.

Earlier the chief of the Guantánamo Military Police force accused the alleged Sept. 11 plotters of raising the issue to delay their death-penalty trial.

“I think it’s based on an attempt to stall these proceedings,” said Army Col. David Heath in response to a question from a defense attorney about the captives’ opposition to being touched by female guards in keeping with their interpretation of Islam.

But Pohl announced in open court that prosecutors had agreed, for this female guard question, that captives’ objection to being touched by women other than close family was a “sincerely held religious belief.”

Case prosecutor Clay Trivett sought to have it both ways — arguing “this may be just bias to the United States in general, females in particular,” an attempt to manipulate their detention, and “terrorize the United States.”

But Pohl rejected that argument, too, saying there was a presumption that not being touched by women other than close relatives was a sincerely held religious belief — apparently to avert testimony on Islam in the case.

Defense attorneys argue that the five men who spent three and four years in CIA custody were at times subjected to sexual humiliation coupled with denial of religion, something the prison should consider as part of its “humane” detention practice by not letting female guards touch them.

But Heath, an Army colonel, made his disdain clear for the order issued by the black-robed judge sitting to his right, also an Army colonel.

“My objection to this order is it discriminates against my female soldiers,” said the 25-year veteran of detention operations in Iraq and Fort Lewis, Washington. “If this order stands there’s nothing to prevent another order or another motion for all contact to cease.”

Heath got to this base in June 2014 to run the guard force at three prison buildings and three other compounds where the war-on-terror captives are kept. Unlike more junior soldiers who testified about their time at the outpost, Heath said he had read the executive summary of the Senate Select Intelligence Committee’s report on the CIA black site program.

It’s called the Torture Report by some, the Rendition Report by others and was partially released a year ago.

Its release has permitted the public discussion in court of waterboarding, rectal rehydration and other lurid techniques agents used to interrogate the accused 9/11 plotters who face trial for allegedly orchestrating the Sept. 11, 2001, hijackings that killed nearly 3,000 people in New York, Pennsylvania and at the Pentagon. No military jury has been selected and no trial date has been set.

But the report’s impact has already been felt in pretrial proceedings.

“I know that the men in Camp 7 listed in the Rendition Report by the Senate committee were tortured,” Heath said in open court about the Top Secret compound of 14 former CIA captives. Six await death-penalty trials.

“I don’t know if the detainees in Camp 5 and 6 were tortured or not.” Those two lockups hold 93 other captives who got to Guantánamo before the Sept. 11 defendants, 12 of them who spent between 30 and 550 days in CIA custody before their U.S. military detention.

A chunk of defense questioning of Heath focused on how a line disappeared from the prison’s operation manual, called Standard Operating Procedures, as the government was preparing to defend the introduction of female guards on Camp 7 escort platoons in October.

“Close contact with unrelated females is culturally inappropriate,” was removed at the recommendation of the prison’s legal department, according to documents presented in court. Heath alternately said he thought that was to make the handbook gender neutral for U.S. troops and that he didn’t remember why.

David Nevin, the lawyer for alleged mastermind Khalid Sheik Mohammed, pressed the colonel on his sworn Nov. 26, 2014, statement that a no-touch order “will likely negatively and directly impact … the military’s overall mission readiness to support detention operations.”

It has been used for a year and, despite a Colorado National Guard major’s testimony a day earlier that two or three female guards were not renewing their Army contracts in disgust over it, Heath was hard pressed to cite an example of diminished readiness.

Heath replied: “Perhaps I overstated it.”

Carol Rosenberg: 305-376-3179, @carolrosenberg