Sept. 11 Hearings Focus on Ban on Female Guards

A view of the defense side of the courtroom where the Sept. 11 defendants are being tried at Guantanamo Bay. (Photo courtesy of Joint Task Force Guantanamo, Public Affairs.)

Hearings for Sept. 11 Defendants Resume After 5-Week Break; Testimony Devoted to Female Guards Ban

GUANTANAMO BAY NAVAL BASE, CUBA – The former commander of the Camp 7 detention facility for high-value detainees on Guantanamo Bay testified on Tuesday that she did not have a hidden agenda when she assigned female guards to an escort unit that touches the detainees when moving them to locations outside their cells.

“It was an operational need,” the witness, identified only as a Lieutenant Colonel from the Army National Guard in Massachusetts, said in live video testimony streamed into the Guantanamo courtroom.

Her testimony came amidst a dispute over Judge Army Col. James Pohl’s temporary order banning female guards from touching the five Sept. 11 defendants on their way to court and legal meetings, an order issued after the witness finished her tenure at the camp. Defense lawyers contend that the use of female escort guards constitutes a change in prior practice that causes distress to their Muslim clients and interferes with attorney meetings.The government opposes the ban, arguing that it can create problems with the facility's operations, which the witness supported in her testimony.

David Nevin, lead defense attorney for accused plot mastermind Khalid Sheikh Mohammed, referred repeatedly in his direct examination to a part of the prison's standard operating procedure that states “close contact with unrelated females is culturally inappropriate." The former commander said she placed the female guards on the escort unit because she needed to transfer two male guards to a different assignment. She also said that the facility makes other accommodations for the detainees' religious beliefs.

“I told them I appreciated their perspective on it, but that operational requirements made this necessary,” the witness said, describing her response to two of the defendants,  Mohammed and Walid bin Attash, after hearing their complaints. She ran the facility from March to December of 2014.

Tuesday marked the resumption of hearings in the military commission against five Guantanamo detainees allegedly behind the Sept. 11, 2001, terrorist attacks, after a five-week break and one day of closed hearings. Monday was consumed by a private meeting between the judge, defense lawyers and prosecutors – referred to as a 505 (h) hearing for its place in the commission’s manual – to discuss the handling of classified information during the sessions, scheduled to end on Friday.

Pohl is not expected to make a decision on whether to lift his ban on female guards this week, or this year. Testimony on classified information related to the order will likely take place at the next scheduled hearings, in February 2016. This week, the parties will wrestle with Pohl's temporary ban and two or three other motions that have piled up since the May 2012 arraignment. A trial date has not been set.

Government Redacts Transcript of Public Hearing

Testimony on the female guards ban commenced on Oct. 30, the last day of the prior court session. That day, two witnesses testified anonymously but in open court about the ban: a former Camp 7 guard and the facility's current commander. The government provides transcripts of the hearings on the military commissions website, typically shortly after the hearings conclude. However, the government spent a full month reviewing the Oct. 30 transcript and redacting parts of the witness' testimony, along with defense-attorney questions and even statements and questions by Judge Pohl, before making the transcript public. (Attorneys on the case have access to the unredacted version.)

In a Dec. 5 meeting with reporters who traveled to Guantanamo Bay, the commission’s chief prosecutor, Army Brig. Gen. Mark Martins, acknowledged that redacting the transcript of a public hearing was extremely unusual, especially since media and other observers who watch the proceedings at Guantanamo Bay and on the closed-circuit screening at Fort Meade, Md., do so on a 40-second audio delay. This gives the judge and the court security officer time to stop a proceeding to prevent the dissemination of classified information – which they did not do on Oct. 30.

“Generally speaking, those transcripts are coming out word-for-word with no redactions,” Martins said.

He explained: “The government is fully entitled to look at [that transcript] and say in the aftermath of that, ‘If I look at that, if that were truly published to a website, it ought to be protected. It could be damaging.’"

Martins said that redactions can include classified and other protected, sensitive information, referring to President Obama’s executive order on the classification of national security information. He declined to say which government agency called for the redactions.

On Tuesday, all five defense teams questioned the Lieutenant Colonel formerly in charge of the Camp 7 detention facility, who is a defense witness; government trial counsel Ed Ryan finished his cross-examination of her around 5 p.m.

Additional witnesses will testify on the female guards issue on Wednesday and perhaps Thursday.