Sin vs safety: judge weighs arguments on Gitmo female guards

AP News
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Posted: Jan 29, 2015 2:32 PM

FORT MEADE, Md. (AP) — Religious-based restrictions on the use of female guards at Guantanamo violate the military's gender-neutral policy and weaken prison security, a government prosecutor argued Thursday in a dispute over assertions by detainees that their Muslim faith makes it a sin for them to be touched by woman soldiers.

A defense attorney for detainee Abd al-Hadi al-Iraqi countered that the restrictions imposed by a temporary court order in November must be enforced and expanded, at virtually no risk to security or soldiers' careers, to protect his client's religious rights.

The military judge, Navy Capt. J. Kirk Waits, gave no indication when he would rule. He recessed the hearing at the U.S. military base in Cuba after lawyers gave closing arguments. The Associated Press covered the four-day hearing from a video feed at Fort Meade near Baltimore.

Waits issued an order in November barring female guards from jobs requiring them to touch Hadi — to apply and remove restraints, for example — while escorting him to attorney-client meetings and court hearings. A similar ruling by another military judge earlier this month pertains to the five defendants in the Sept. 11 attacks. All are housed at Camp 7, a top-secret unit housing about 15 men deemed "high-value detainees" by the Pentagon.

Some female soldiers have filed gender discrimination complaints with the military over the issue.

Women were added to the escort teams in October, pursuant to a 2013 expansion of gender-neutral military jobs, prosecutors say. Defense attorneys say allowing women to handle prisoners upsets their clients, interferes with attorney-client meetings and could amount to unlawful pretrial punishment.

The men contend their faith prohibits physical contact between men and women who aren't married or closely related. The stricture in certain Muslim denominations is meant to prevent illicit sexual intercourse, according to the written testimony of Mohammad H. Fadel, an expert on Islam at the University of Toronto law school.

The judge seemed skeptical that routine handling of a prisoner could be sexually arousing.

"We're in the context of a prison. We're in the context of people, of many other guards also being present," Waits told defense attorney Marine Lt. Col. Thomas F. Jasper.

But Jasper said prisoners have a right to practice their religion under the U.S. Constitution and the Geneva Conventions. He said directing female guards to step back and let male soldiers touch the prisoners shouldn't pose a security risk.

Prosecutor Army Lt. Col. David Long cited case law giving substantial deference to prison administrators in operational decisions.

"Running a humane and well-functioning detention facility requires the proper staffing," Long said.

The camp commander testified Wednesday that it was hard to find and train enough National Guard troops for the high-security jobs. Rotating their roles on escort teams minimizes the possibility of risky relationships with prisoners, he said.

Long said jailers already accommodate detainees' religious beliefs in many ways, including prayer breaks and preferences for food, apparel and facial hair. Enabling them to dictate the makeup of escort teams goes too far, he said.

"The detention facility cannot run with the guards and guard leadership responding to detainees issuing their requests or demands before they comply," Long said.

Hadi has been at Guantanamo since April 2007. He is accused of being an al-Qaida commander who organized deadly attacks on U.S. and allied forces in Afghanistan. He faces up to life in prison if convicted of the alleged war crimes. He appeared in court wearing a white tunic, a headdress and a long, gray beard.