12/10 Session: Morning Session: The Current Commander Testifies on the Role of Female Guards

Judge Pohl opens the session this morning, recalling an unnamed U.S. Army Captain as a witness for the defense. She testifies that Mr. Hawsawi—the only defendant not present in the courtroom—has freely chosen not to attend the day’s commission hearings. Judge Pohl finds that Hawsawi voluntarily waived his presence at the hearing, and the substantive proceedings begin.

Still Too Noisy?

Defense Counsel Harrington begins the day with a statement for the record, alleging that the guards failed to comply with Judge Pohl’s order concerning noises and vibrations outside of Camp VII. According to defendant Binalshibh, the guards openly disregarded the order and threatened him with retaliation if he complained. Harrington asks for confirmation that the order has been served to the JDG Commander and the Staff Judge Advocate (SJA), and lists additional relief he plans to seek in a hearing to determine the government’s compliance. Trial Counsel Swann confirms that the JDG Commander and SJA received the order and are acting in compliance with it. Judge Pohl informs Harrington that he will consider the rest of the requested relief once Harrington files his motion.

The Judge then addresses two lingering issues (Defense Counsel Ruiz successfully has moved to add the Army’s 15-6 report to the record Pohl recognized defendant Bin Attash’s opposition to his lawyer’s presence and representation), and gives Chief Prosecutor Martins the floor.

Religious Accommodations

Martins calls Colonel David Heath, Commander of the Joint Detention Group, Joint Task Force-Guantanamo to the stand. Colonel Heath previously submitted an expert declaration opposing the Defense’s motion to enjoin physical contact between female protective officers--including prison guards who accompany detainees when they are transported-- and male detainees. His declaration stated, inter alia, that such a restriction would negatively impact Guantanamo’s penological function. Judge Pohl agreed with the defense in an order issued January 7, 2015.

Defense Counsel Connell now opens with a series of background questions.

It seems the controversy began on October 8, 2014, when detainee Hadi al Iraqi was forcibly extracted from his cell by a female guard. Eight days later, al Iraqi’s lawyer filed a motion to enjoin female guards from engaging in physical contact with male detainees. CDR Heath testifies that his Staff Judge Advocate (SJA) asked him to prepare a declaration opposing al Iraqi’s motion and explaining his concerns that such an order could have a negative penological effect on Guantanamo’s mission. Heath signed the declaration on October 29, 2014; the Judge granted al Iraqi’s motion a week later.

On January 7, 2015 Judge Pohl issued a similar order in the case at hand, “limiting the use of female guards to physically touch the accused” when they are moved to attorney-client and commission meetings, except in “exigent circumstances.” Heath testifies that he informed the camp commander of the restrictions and instructed him to follow them. He further testifies that he is not aware of any instances in which the “exigent circumstances” exception has been used, or of any instances of non-compliance (despite the substantial distance between Camp VII, where the five defendants were housed, and Echo II, where they have meetings with their lawyers).

Relevant Regulations

Heath then outlines the relevant regulations and explains the process of formulating Standard Operating Procedures (SOPs) that guide the guards’ conduct. The rules applicable to the five detainee defendants, Heath explains, could be found in DOD Regulations AR 190-8 on detainee status, AR 190-47 on Army corrections, and DOD Directive 2301.01E on detention policy. He further affirms that detainees are treated in accordance with Common Article 3 of the Geneva Conventions (1949).

Guantanamo’s SOPs were developed over a number of years, and are subject to review and renewal at least every nine months. Heath notes that commanders typically adopt the existing SOPs verbatim when they take over command to ensure continuity. And if concerns regarding the SOPs are raised either during the routine internal review process or by other corrections experts or professionals at the base, the commander may change the SOPs or approve a new policy. Applicable stakeholders like medical and legal professionals are given an opportunity to weigh in on proposed changes, and the commander approves the final SOPs.

There are differences in the SOPs used depending on the detainee’s threat level. Heath explains that some SOPs governing the high value detainees housed at Camp VII, for example, do not apply to general population detainees located elsewhere.

What Can Women Guards Do?

Defense Counsel Connell then turns to Heath’s declaration to discuss the scope of female guards’ role at Guantanamo. DOD policy prohibits female guards from conducting full-frisk searches on male detainees or observing them when they are unclothed. The two restrictions above are not considered unlawful discrimination under DOD policy, Heath agrees. And, of course, the selection for Guantanamo duty, training, and assignment processes at the base are all gender neutral.

Prior to Judge Pohl’s order, Heath explains, women were not generally prohibited from physical contact with detainees, and a review of the work performed by female guards at Guantanamo between 2006 and 2013 revealed that female guards had physical contact with the detainees during this period. (There was a period between 2013 and 2014 in which no female guards served in Camp VII). He also affirms that the Judge’s order only impacted a subset of female employees at Guantanamo, namely the women serving as guards and escort team members, who might otherwise have had direct physical contact with the detainees.

Exaggerated Fears

Defense Counsel Connell then takes issue with three statements in Heath’s declaration. First, Paragraph 13, which stated: “Demanding the female personnel not touch male detainees would effectively prevent female servicemembers from serving as guards.” It went on to argue that Guantanamo’s operational effectiveness would be severely and negatively impacted “absent female guards,” and later assumed that the order might also prevent women from escorting detainees to and from attorney-client meetings and commission hearings.

Connell points out that women continue to serve as guards at Guantanamo, and that Heath’s assumption to the contrary “turned out not to have happened.” Heath responds that women did continue to serve in both a guard and escort capacity, but that female guards were only able to fill nonsupervisory positions at the “lowest level.” However, Connell gets him to admit that his prediction women might be categorically excluded from these positions was based on a mistaken assumption that Judge Pohl’s order might “grow” to cover other individuals or contact. He also agrees that his concern that the restrictions could hamper Guantanamo’s ability to accommodate defense counsel meeting requests has not been realized.

* * * * *

Change in Procedure

After a brief recess, Defense Counsel Nevin takes over examining Colonel Heath.

Nevin begins his line of questioning with a series of questions about the selection, training and assignments given to Guantanamo guards. Colonel Heath explains that incoming commanders typically adopt in full the SOPs and procedures in place when they arrive with their units. Prior to deploying to Guantanamo, incoming servicemembers spend six weeks at Fort Bliss preparing for the assignment, including learning the SOPs, regulations and legal orders relevant to their future position. For their first two weeks on the job, servicemembers work alongside the team they are replacing to learn the ropes.

Defense Counsel then draws Heath’s attention to the SOPs that he signed immediately after taking over command on Guantanamo on June 24, 2014. In paragraph 39-5(a)(11), which lays out cultural considerations JDG personnel are required to observe “when practicable,” the SOPs stated that “close contact with unrelated females is culturally inappropriate.” In a version of the SOPs signed by Heath in September 2015, that language had been removed. Heath testifies that he did not remember removing the language, or the reason for its removal. Nevin then presses Heath on the point, insinuating that the language was removed to bolster support for the guards’ position that close contact between female guards and male prisoners should be allowed.

Heath maintains that he has no recollection about when or why the language was removed, and declines to speculate further.

Special Vulnerability to Religious Discrimination?

Nevin then switches tacks. He asked Heath to confirm that Guantanamo treated detainees humanely, including by respecting and accommodating individual physical or mental vulnerabilities. Heath agrees. (Nevin attempts—with little success—to link Heath’s knowledge of the detainees’ mistreatment under the CIA’s Rendition, Detention, and Interrogation program to a specific vulnerability, insinuating that the high value detainees are particularly sensitive due to prior denials of right to religious practice.) The Commander then confirms that he knew that Muslims are required to pray five times a day and to be clean while doing so. He, however, states that he was unaware that contact with unrelated female adults caused uncleanliness, but agrees that the humane operation of a detention facility required him to take “these kinds of things into account.”

The conversation circles back to Heath’s expert declaration. Heath again admits that his assumption that Judge Pohl’s order would “grow to prevent females from serving as guards” was mistaken, but reiterates his belief that the order discriminated against female servicemembers. Heath maintaines that restricting female guards’ contact with detainees could impact their “ability to serve in positions of greater responsibility,” but he nonetheless agrees that he might have “overstated” the potentially deleterious effect of the order on overall mission readiness. Heath confirms that he declined to meet with defense counsel to discuss the issue after a female guard member met with a congressional delegation to discuss it, but denies that he instructed the female guard or any members of his staff not to take the meeting. With that, Nevin turns the floor over to Defense Counsel Harrington.

Under examination from Harrington, Heath reaffirms that he did not recall when or why the change referenced above was made to the SOPs. Whether the change was made to the September 2015 SOPs or the prior iteration (which no one in the court room had a copy of) was unclear. (Defense Counsel Ruiz later requested that a copy of the post-June 2014 and pre-September 2015 SOPs be provided to the court and all parties. Trial Counsel agreed to look for a copy during the lunch recess). In either case, the change to the SOPs appeared to have taken place after the Hadi order and likely after Judge Pohl’s order in this case restricting female guards’ contact with detainees, Harrington points out. In response, Heath notes that a cultural advisor would have reviewed the modification, and that he does not recall receiving any objection. He renews his objection to the discriminatory nature of the order, and calls it a mere stalling tactic rather than a genuine religious requirement.

After reconfirming with Heath that the noise and vibration order had been distributed and that personnel had been instructed to comply with it, Harrington too steps back and Defense Counsel Ruiz takes the floor.

After opening with questions about Heath’s prior service, Ruiz now attempts to cast doubt on the commander’s concerns arising from Judge Pohl’s order. In response to Ruiz’s questions, Heath confirms that there have been no reports regarding vulnerabilities at Camp VII, no indications that security has been compromised, no security violations, no inhumane treatment, no failure to safely execute detainee operations, and in fact that the level of transparency has increased while Judge Pohl’s order had been in effect.

Non-discrimination

In a brief attempt to compare Judge Pohl’s restrictions to constraints on women in combat, Ruiz asks Heath whether he considered that combat ban discriminatory. Heath responds that he had always served in gender-neutral units. Ruiz then mentions the high value detainee’s prior experiences, asking whether Heath knew that they had been tortured and subjected to humiliating treatment, including, according to a report written by Army generals, the use of degrading gender coercion. Heath affirms that he was aware that some of the detainees had been tortured, but did not recall the specific allegations Ruiz has mentioned.

After Ruiz concludes his questioning, Trial Counsel Ryan follows up with a few final questions to clarify Heath’s concerns about the order. Heath explaines that the physical contact between female guards and male detainees at issue consisted of guards placing a hand on the detainee’s arm in order to move them to a meeting with their attorney or with the court. He reiterates that all guards are trained to the same standards—that is, male and female guards have the same capabilities according to their rank, function and role. Although ensuring that low-ranking women comply with the Judge’s order was fairly straightforward, higher ranking guards might be forced to act below their rank in order to avoid touching detainees, Heath explains. This would be harmful for the individual’s career and the command—encouraging successful career development serves an important penological and command interest. After serving in a camp in Kurdistan with over three hundred primarily Sunni Muslim detainees and overseeing 147 detainees at Guantanamo, Heath reiterates that Hadi al Iraqi was the first detainee to complain of the minor physical contact with female guards. After al Iraqi’s complaint was raised, Heath testifies that his team investigated to determine whether there were any other complaints among the detainee population. None were found. He reiterates that the no full-frisk or unclothed observation rules were common decency rules followed by the Federal Bureau of Prisons, and that he sought to promote a non-discriminatory workplace for all servicemembers.

And with that, we break for lunch.