By Ian Simpson
FORT MEADE, Md. (Reuters) - A Guantanamo Bay military court order that bars female guards from touching an accused al Qaeda commander violates Pentagon sex discrimination guidelines and means inmates could set prison policies, a military prosecutor argued Thursday in a hearing on the ban.
But a lawyer for inmate Abd al Hadi al Iraqi said lifting the temporary order would violate the U.S. Constitution and Supreme Court rulings on religious freedom.
Iraqi, who faces war crimes charges, says being touched by female guards violates his Muslim religious beliefs. Judge Navy Captain J.K. Waits issued the order in November barring women guards from touching him while being escorted to hearings or meetings with lawyers.
Prosecutor Army Lieutenant Colonel David Long said the Guantanamo Bay procedures were in line with Supreme Court and other rulings that gave prisons leeway in their rules.
The rulings "recognize in this area it is those that operate the prisons day after day, those that have to man them day after day, deserve a singular amount of deference," he told Waits.
The issue arose in October when a female guard escorting him to a meeting with lawyers tried to shackle Iraqi for the first time since he arrived in Guantanamo Bay in 2007, and he refused. About 20 percent of the guards at Camp Seven, the secret unit for former CIA captives where Iraqi is held, are women.
Long argued that barring female guards from touching Iraqi, 54, was contrary to Defense Department policy opening up jobs to women.
The order harmed women's careers and made it difficult for National Guard units at Guantanamo Bay to attract women volunteers. It could make the facility an anomaly among U.S. prisons, he said.
Long said the order also opened the door to inmates asking for other policy changes. He said an intercepted letter from fellow inmate Khalid Sheikh Mohammed, the accused mastermind of the Sept. 11, 2001, attacks on the United States, about the order showed inmates' interest in it.
In the letter, Mohammed coached Iraqi on what to say if called on to testify, a court filing showed.
Defense lawyer, Marine Lieutenant Colonel Thomas Jasper Jr., said rescinding the order would violate constitutional guarantees of freedom of religion and to a speedy trial and against cruel and unusual punishment.
He said it should be upheld under the U.S. Supreme Court's Hobby Lobby ruling last year on religious accommodation. Prison supervisors also should be able to adjust schedules to keep female guards from touching Iraqi, he said.
Female guards have filed an equal opportunity complaint against Waits through the Defense Department. A second judge, Army Colonel James Pohl, faces a complaint for a similar order involving Mohammed and four co-defendants.
At a news conference, Jasper said defense lawyers would seek access to the complaint to see if it had bearing on the court order.
The hearing was monitored at a media site at Fort Meade, outside Washington.
(Reporting by Ian Simpson; Editing by Cynthia Osterman)