By Carol Rosenberg
Miami Herald
GUANTANAMO BAY NAVY BASE, CUBA — Censors have restored the words “female” and “male” to a public version of a legal motion being argued at the war court this week over whether a captive can invoke Islam and refuse to be shackled by a woman.
Several Pentagon defense lawyers have complained of new female guard duties at the detention center’s most clandestine of prisons, called Camp 7. But the issue is being heard in the case of Abd al Hadi al Iraqi, who is accused of commanding al-Qaida’s army in Afghanistan after the U.S. invasion.
His lawyers say that since he was brought to Guantanamo in 2007 only male guards touched him as they moved him around the prison complex. Then on Oct. 8, they argue, the U.S. military breached the status quo — and assigned a female guard to shackle him after a meeting with his lawyers. He refused, was declared non-compliant and forcibly restrained by four male guards.
“Mr. Hadi al Iraqi’s Muslim faith requires him to avoid physical contact with any females to whom he is not married or related,” his U.S. Marine attorney, Lt. Col. Tom Jasper, wrote in a 10-page motion. It was originally released on the court website with each mention of “male” and “female” blacked out then reposted on the eve of Monday’s hearing with the gender references restored.
Jasper wrote that Hadi, 53, “has indicated that the presence and use of female guards is not objectionable in and of itself, only when they are required to perform the more intimate duty of shackling and un-shackling and other physical contact.”
Hadi’s lawyers say that the issue has interfered with their ability to meet with the man and prepare for trial. So the judge, Navy Capt J.K. Waits, ordered the prison on Nov. 7 to have only male guards move Hadi to legal meetings until he decides the issue.
Lawyers are expected to argue about it Tuesday. The chief prosecutor, Army Brig. Gen. Mark Martins, said Sunday night that he didn’t expect the judge to hear testimony from live witnesses. Jasper, Hadi’s attorney, said the prosecution had provided defense attorneys Sunday with affidavits and other information about the military’s use of a Forced Cell Extraction to move Hadi once he refused to let a woman shackle him.
It was unclear whether prison commanders were honoring the judicial order. Army Col. Greg Julian, at Southern Command, said Nov. 10 that Defense Department and Southcom attorneys were studying Waits’ order — and military spokesmen did not respond to follow up inquiries.
“The judge’s order is in force and we will have a proceeding to discuss the merits of it,” said Martins.
Prosecutors argue that the court shouldn’t meddle in the running of the detention center, where some 2,000 troops and civilians work and 148 captives are kept. Southcom won’t say how many troops are assigned to the prison or how many are female.
Meantime, at the prison, commanders say the U.S. military is gender neutral in regard to its assignments — with the exception of supervising the captives when they shower and conducting groin searches.
Hadi’s attorneys invoke the U.S. Supreme Court’s recent Hobby Lobby religious rights decision in their bid to get the judge to order the prison to return to the practice of not having female guards touch the captives. Prison commanders say there was no policy prohibiting it, but it is possible that duty assignments in past rotations happened to include only men.
Lawyers for some of the Sept. 11 accused have complained of the same thing but have not been at the war court since the Hadi episode. The defendant in Guantanamo’s other death-penalty case, Abd al Rahim al Nashiri, accused of orchestrating the 2000 USS Cole bombing, doesn’t seem to mind being touched by female guards.
Waits has also agreed to hear three other defense motions in this week’s pretrial hearings in the Hadi case:
— A bid to have Hadi declared a Prisoner of War, which is different than the unlawful combatant designation assigned to all of Guantanamo’s 148 captives. POW status would strip the war court of jurisdiction in the case;
— A request for a court order for emails and other information about the timing of the case, announced two days after the controversial May 31 trade of five Taliban prisoners here for POW Sgt. Bowe Bergdahl;
— A challenge to the charge sheet as too broad, packed with extraneous details that could prejudice Hadi’s eventual trial before a jury of five or more U.S. military officers.
Hadi is accused of classic war crimes punishable by life in prison — targeting medical workers and civilians as well as foreign troops in Afghanistan — of denying quarter, attacking protected property, using treachery or perfidy in a series of attacks in Afghanistan and Pakistan between about 2003 and 2004.
He’s not charged with murder, but the charging document alleges his troops attacked U.S. targets in Afghanistan that killed unnamed U.S., British, Canadian, German and Norwegian troops and a United Nations aid worker at at various times.
It also accuses him of helping the Taliban blow up the monumental Buddha statutes in Afghanistan’s Bamiyan Valley, a UNESCO World Heritage site, in March 2001.
He was arraigned in June and has had one earlier set of pretrial hearings, during which he got the U.S. Marine defender. The judge has scheduled pretrial hearings through July, suggesting the trial can not start before summer.