Congress is moving to intervene in a legal dispute over whether female guards at the Guantánamo Bay prison should be barred from touching Muslim detainees, wading into a fight that has raised questions about the independence of the war court from outside influences.
The dispute centers on military commission orders in late 2014 and early 2015 that have temporarily required the military to use only male guards to touch defendants when taking them to court or to meetings with their lawyers, in line with the religious beliefs of those detainees.
Several senior Pentagon officials and lawmakers called those orders outrageous. But the issue seemed to be settled last month, when Army Col. James Pohl, the judge overseeing the death penalty case against five detainees accused of aiding the terrorist attacks of Sept. 11, 2001, ruled that the military could use female guards to move the detainees after all.
Still, saying he was obliged to ensure the independence of his court from unlawful influence “from any source,” Pohl said he would leave in place, for six more months, the ban that he had previously imposed. He said that delay would “deter such additional inappropriate comments and further ameliorate” any taint.
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The Military Commissions Act bars the coercion of judges in how they make decisions and gives them broad discretion to craft remedies to correct even the appearance that such influence had made a trial unfair. Detainee defense lawyers have argued that the criticism of the judge’s orders amounted to “unlawful influence.”
In his order last month, Pohl decided that comments by Pentagon officials had raised the appearance of a problem, requiring his remedy of keeping the ban in place for six more months. He offered to lift the ban sooner if Pentagon leaders “take appropriate action to absolve any taint.” But he said that previous talk by Sen. Kelly Ayotte, R-N.H., and other politicians had not crossed a line, as it fell short of an affirmative act.
Late last week, however, the Senate Armed Services Committee added a provision to its version of the annual defense authorization act that would nullify Pohl’s ban immediately and bar any future military judge from acting likewise. And this week, the House added the same provision to its version of the bill, making it likely that it will remain in the final version of the act.
Ayotte said in a statement, “ 9/11 terrorists who planned and facilitated the murder of almost 3,000 people on American soil should not be able to dictate whether our female service members do their jobs because these terrorists have a problem with women.” She is the provision’s principal supporter.
David Nevin, a lawyer representing one of the defendants in the 9/11 case, called the intervention by Congress “astonishing.” He said he would consider filing a new challenge based on it.
“It illustrates how Congress views the military commission as a vehicle for expressing popular sentiment about how detainee-related issues should be resolved, as opposed to as an independent court acting in the normal course of business,” Nevin said.
Eugene Fidell, who teaches military law at Yale Law School, said that Congress could lawfully enact legislation that changed the rules for the commissions system – even when it affected “pending cases like those at Guantánamo.” But he said “legislators should not comment on particular cases; doing so threatens the independence of the judiciary and the defendant’s right to a fair trial.”
A Pentagon spokesman declined to comment on pending legislation. In her statement, Ayotte emphasized that Congress has constitutional authority to set the rules for the commissions.
“It is the job of military judges to rule as they deem appropriate, and it is my job as a senator and a member of a separate branch of government to legislate – and that is why we must act now to ensure the order that has been in place for more than 16 months is not extended further and that this never happens again,” she said.
Read the judge’s female guard ruling here.