Guantánamo judge weighs religious rights of detainees versus women’s rights of guards

Army soldiers male and female at an awards ceremony, at the U.S. Navy base at Guantánamo Bay, Cuba, on Tuesday, Nov. 4, 2014 in this photo approved for release by the U.S. military.
Army soldiers male and female at an awards ceremony, at the U.S. Navy base at Guantánamo Bay, Cuba, on Tuesday, Nov. 4, 2014 in this photo approved for release by the U.S. military.

A 9/11 trial prosecutor dismissed a Muslim sensitivity argument Friday and urged a military judge to let female guards resume handling the former CIA detainees accused of orchestrating the Sept. 11 hijackings to and from court and legal meetings.

Defense lawyers argued that the religious sentiment was heartfelt and, moreover, Guantánamo’s female guards’ touching re-traumatizes men who were tortured naked by the CIA while women watched. They urged the judge not to lift his restraining order on female touching, if for no other reason then it looks like Pentagon brass publicly excoriated the judge to cow him.

Army Col. James L. Pohl, the judge, did not rule on the year-old issue as he concluded a two-week pretrial session that gave the public accounts of conditions in the secret CIA prison network as well as Guantánamo’s clandestine Camp 7 prison.

The judge issued the order on Jan. 7, 2015, authorizing only male guards to touch the alleged mastermind Khalid Sheik Mohammed and four accused accomplices in the Sept. 11, 2001, hijackings that killed nearly 3,000 people. Since then lawyers have framed it as a religious accommodation versus gender discrimination issue, and called witnesses in both public and secret hearings to help sort it out.

A New York City firefighter, who carries the physical wounds of the terror attacks to this day, declared his disgust at the issue — and the notion that the court had taken up months on it.

“He wants to talk about re-traumatizing, and reliving. What do you think happens to us? I walk around feeling like I have a knife in my chest. And that’s never going to go away,” Robert Reeg, 63, in Guantánamo, said of grappling with “horrible memories” as he watched the proceedings.

“You would think … the American people were on trial,” he said of this week’s focus on detainee conditions at Camp 7, the female guard questions and allegations that someone at the prison was carrying out a campaign of sleep deprivation against one captive.

Reeg, at the World Trade Center South Tower on Sept. 11, suffered smoke inhalation, fractured ribs, a collapsed lung and knee injuries and underwent surgery to both knees and a thoracic operation.

“He only gets six hours of sleep a day? I would praise Allah if I could get six hours sleep,” said Reeg. “That’s a lot.”

At issue is a decision in 2014 to add female guards to the escort units of the secret lockup for former CIA captives. Female guards have always served at the maximum-security prison, the accused say through their lawyers. But the military agreed after an episode in 2007 not to use them in that role.

David Nevin, the alleged mastermind’s death penalty defender, described multiple issues. His client believes it’s a sin to be touched by any women. Women took part in sexually humiliating Mohammed in the CIA prisons through forced nudity, where agents engaged in “sexually perverted behaviors” — rectal rehydration, which he called rape; and “diapering that implies dominance.”

He said he was once so defiled that he could not pray. Nevin said Mohammed does not oppose the use of female guards at Camp 7, but argued that being touched by them re-traumatizes him and prevents him from meaningfully cooperating in his defense.

Cheryl Bormann, whose client Walid bin Attash is refusing to speak with her, told the judge that her client grew up in a Saudi society that absolutely forbids physical contact with women other than family members. In the CIA’s “black site,” she said, he was was hung naked and interrogated by women, and un-diapered so that he would defecate on himself.

Letting the women guards handle the detainees again would likely mean needing to use a military team to tackle and shackle Bin Attash and force him to court — something she called risking injury of both troops and the accused.

Prosecutor Bob Swann was dismissive of all of it. He invoked the Sept. 11 victims and said the defense attorneys made a “lame” attempt to link the issue to their treatment a decade earlier. The accused terrorists were captured in 2002 and 2003 and by the time they were transferred to Guantánamo on Sept. 6, 2006, the waterboarding had ended, and apparently so had the other so-called “enhanced interrogation techniques.”

Swann quoted “the late, great” Supreme Court Justice Antonin Scalia and called the defense argument “applesauce.”

Female guards on escort duty touch a captive’s wrists, ankles, head and shoulders, Swann said, not his genitals or buttocks. It’s just a movement, he added, “their fantasies are not a basis in reality.”

The prosecutor also told the judge he need not keep his order to demonstrate his independence from Secretary of Defense Ash Carter, Joint Chiefs of Staff Chairman Gen. Joe Dunford, or former Southcom commander Gen. John F. Kelly — who all publicly declared it “outrageous.”

Defense attorneys invoked a principle of military justice called Unlawful Command Influence and said the criticism by political and military leaders before Congress would inevitably taint the public’s perception of an independent war court tribunal. In this instance of contamination, defense attorney Army Maj. Matt Seeger said, the correct remedy was to continue his restraining order. “The only way to make it right is to go the other way,” to keep the order intact.

Pohl asked the prosecutor whether any of the leaders had clarified or retracted their “intemperate remarks.” No, Swann replied.

Carol Rosenberg: 305-376-3179, @carolrosenberg