Pentagon brass seek to mollify Guantanamo judge in 9/11 case

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Posted: May 27, 2016 7:29 PM
Pentagon brass seek to mollify Guantanamo judge in 9/11 case

MIAMI (AP) — Two top officials at the Pentagon issued a conciliatory response Friday to the military judge presiding over the Sept. 11 war crimes case at Guantanamo Bay who had faulted both men in a ruling last month for publicly criticizing a temporary ban he issued on the use of female guards to transport the defendants.

Secretary of Defense Ash Carter and Marine Corps Gen. Joseph Dunford, the chairman of the Joint Chiefs of Staff, said their criticism was intended to support "gender-neutral staffing" in the military and not to interfere with the trial by military commission for the five men charged in the Sept. 11, 2001, terrorist attack.

"To be clear, we had no intention to influence the military judges presiding over the military commissions," they wrote in a statement issued by the Pentagon.

The statement was an apparent attempt to mollify the judge, Army Col. James Pohl. He ruled last month that he intended to lift the ban, but only after six months because of what he called the "entirely inappropriate" comments on the issue by Carter and Dunford during an appearance before Congress.

Pohl said in his ruling that he would consider ending the ban earlier if the senior officials took "appropriate action," to address their comments, which resulted in their joint statement.

Marine Corps Maj. Derek Poteet, the military lawyer for lead defendant Khalid Shaikh Mohammad, said prosecutors would now likely move to have the ban lifted sooner though he believes that the statement by Carter and Dunford was inadequate.

"This is not a retraction," Poteet said. "It's disturbing that today's statement does not express regret or even acknowledge that their comments were inappropriate despite a judicial finding that they were."

The female guard issue is one of many side issues that have emerged in the Sept. 11 case, which remains mired in the pretrial stage four years after the five men were arraigned at Guantanamo for a second time on charges that include nearly 3,000 counts of murder in violation of the law of war and hijacking. Hearings are scheduled at the base for next week but a trial is likely years away.

The military says it has to use women for prisoner escort duty because it doesn't have enough male guards and because it would discriminate against female troops to prohibit them from a duty done by their male peers. The issue has only come up in Camp 7, the high-security unit of Guantanamo. Prisoners in the other camps have little physical contact with guards.

Carter and Dunford reaffirmed those concerns in their statement. "We continue to believe that our military has legitimate and strong interests in gender-neutral staffing, integration of women into all positions, and the prevention of gender discrimination," they said, adding that they also belief in the religious rights asserted by the defendants in the case.

Mohammad and most of his co-defendants say the use of women to escort them from their high-security prison cells to court or meetings with their lawyers is a violation of their strict Muslim beliefs, which prohibit physical contact with unrelated females.

Their lawyers have also argued that the use of women to move them, which began in 2014 after years of using only male guards, is traumatic for men who were subjected to extreme treatment, at times of a sexualized nature, that amounted to torture while in CIA custody. "There's a gruesome history of sexualized attacks by U.S. government personnel on detainees at Guantanamo and CIA black sites," Poteet said.

Pohl issued a temporary ban in January 2015 while he considered the arguments, which prompted criticism from members of Congress and the Pentagon officials. Carter called the ban on women having contact with the defendants an "outrage" and "counter to the way we treat service members" in testimony to the Senate Armed Services Committee. Dunford called the ban "outrageous."

The judge rebuked both men for comments that he said "crossed a line," and created the appearance of trying to affect the outcome of the case, which in the military is known as unlawful command influence and can prompt a dismissal of charges.

Poteet said it made it harder for the lawyers to try the case as well. "It is plenty difficult enough to defend a death penalty case without the judge's boss criticizing his decisions," he said.