A military judge has lifted his restraining order and is once again allowing female prison guards to touch an alleged war criminal while moving him between Guantánamo’s most clandestine prison and legal appointments.
Navy Capt. J.K. Waits lifted the restriction in a Feb. 24 ruling, according to lawyers who had seen it. It was still under seal at the Pentagon’s war court website on Sunday.
Last year, the judge forbade female guards from touching Abd al Hadi al Iraqi, 54, who invoked Islamic and traditional doctrine and said he had only been handled by men at Guantánamo. Hadi, captured in Turkey and sent here in 2007, is accused of commanding al-Qaida’s Army in Afghanistan after the 2001 U.S. invasion, and could be sentenced to life in prison if he’s convicted.
Some guards responded by lodging gender discrimination complaints against Waits and the military judge in the Sept. 11 mass murder case, who issued a similar no-touch order. The U.S. Southern Command investigated but has had no comment.
Waits made no mention of the guards’ bias complaint in his decision. He lifted the no-touch order based “on a very strict line of case law rather than the Religious Freedom Restoration Act,” said Marine Lt. Col. Thomas Jasper, Hadi’s Pentagon-paid defense attorney.
Prosecutors opposed the religious accommodation request as at odds with a Pentagon move toward greater gender neutrality in the U.S. military. One dismissed the question in court last month as a manufactured al-Qaida conspiracy.
Hadi’s lawyer, Jasper, was considering whether to appeal the decision. He cast the issue in an email Sunday as “a very simple accommodation so a devout Muslim, pending trial, can continue to practice his religion without restriction and being subjected to a violent force cell extraction before attending mandatory medical appointments, legal meetings, court sessions and all other essential visits.”
The issue erupted in October inside the prison’s clandestine Camp 7 lock-up when some female soldiers were for the first time assigned to an escort unit that shackles and moves prisoners from their cells to medical, legal and Red Cross meetings. Hadi refused to be touched by a female soldier and was forced from his cell by an Army tackle-and-shackle team.
Testimony last month showed the Massachusetts and Colorado National Guard units, assigned to guard duty at the secret Camp 7 for former CIA black site prisoners, first tried to mobilize only men to the so-called escort-guard assignment but added women after they couldn’t get a sufficient number of skilled volunteers with appropriate security clearances.
A National Guard spokesman subsequently said Southcom first tasked the guard in 2012 to staff Camp 7 for a 2013 deployment with a requirement that stated “males only.”
Spokesman Kurt Rauschenberg said by email Feb. 5 that “follow-on Southcom requirements did not specify gender.” So, “in September of 2013 the requirements were open to male and female National Guard personnel.”
Before Massachusetts and Colorado, it provided Military Police units from North Dakota and Louisiana to the mission.
At Southcom, spokeswoman Army Col. Lisa Garcia elaborated by email Feb. 10: “The manning of detainee camps has been gender neutral since 2006 with one exception from 2011-2012. During that period, the Military Police company that provided security within the camp was requested to be all male by the Joint Task Force commander,” the commander of temporary unit running the temporary prison.
In response to a question about whether Southcom once used an all-infantry, and therefore necessarily male, Army force at Camp 7, Garcia replied: “The internal security force has been Military Police [Army] or Master of Arms [Navy] since 2008.”
The CIA transferred its captives to Guantánamo in September 2006, and President George W. Bush announced that they were in Defense Department custody.
But the recently released Senate Intelligence Committee “Torture Report” said those captives remained under the operational control of the CIA even at Guantánamo. Lawyers for some of the former CIA captives facing death-penalty trials say that contradiction leaves as an open question when, if ever, the U.S. military assumed full responsibility for the clandestine lock-up whose costs and location are classified.
Jasper said he would seek to meet with Hadi on Monday but wondered if the Iraqi might refuse to be moved if a female guard would be handling him. “We are contemplating appellate and other procedural alternatives this week,” he said.
Hadi is due back in court for a week of pretrial hearings March 23.
Meantime, the Miami Herald has filed a Freedom of Information Act request for details of the guards’ sex-discrimination complaint – who investigated it, when the guards filed it, what remedies they sought and what the investigators concluded. Southcom has not responded.
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