Published by The Lawfare Institute
in Cooperation With
It’s Tuesday morning at Guantanamo at precisely 9:07, and Military Judge James Pohl calls the session to order. He is, as always, resplendent in his black robes, judicial authority emanating from his very being.
Chief Prosecutor Brigadier Gen. Mark Martins introduces the government lawyers. And Judge Pohl goes through the usual ritual of making sure all the accused are present and understand their right to be absent. All the detainees are good to go except for Walid Bin Attash, who’s down about having to have a female lawyer.
“I would like to put on the record my objection to the existence of the female lawyer,” he says in an interesting turn of phrase that seems somehow to make the issue larger than merely his having to be represented by a woman. “I do not consider her to be representing me. She is only representing her own interests.”
He also complains that an order that was supposed to reach him has not done so yet. Judge Pohl assures him that it’s on its way.
The previous day, Monday, Judge Pohl announces, there had been a closed session to discuss the use and relevancy of classified material. The result was that “there will be no need for any further closed sessions this week”—unless something new comes up.
On today’s agenda? The terrible problem of female guards touching male defendants. Indeed, this morning, anyway, this trial is not about 9/11, not about airplane hijackings or buildings falling down, not even about CIA black sites and interrogation. It’s about the procedures by which detainees get moved and the role of women in those procedures.
And we’re taking testimony on this.
Specifically, we’re taking testimony remotely from an unnamed female Lieutenant Colonel who served at Guantanamo from March through December of last year and was responsible for the care and custody of detainees at Camp VII—where Khalid Sheikh Mohammed and the other highest value detainees are held. Under questioning from David Nevin, KSM’s lawyer, we learn that she has served for 33 years as a military police officer in connection with service in the Massachusetts National Guard and has spent 21 years as a policy officer in Lynnfield, Mass., a position from which she is now retired. Guantanamo, however, was the first time she had ever run a detention facility.
She contends that she ran the facility in accordance with standard operating procedures, and Nevin asks her at some length about those procedures, focusing specifically on SOP 39, on “Religious Support of the Detainees.” Those procedures are designed, she concedes, to accommodate detainee religious convictions and obligations within the context of secure detention. As a consequence of this balance, Nevin elicits from her, guards don’t ask detainees about female family members. They use their right hands, not their left, when interacting with detainees. They serve halal food. The guard force does not touch the detainees’ Qurans. They shift schedules to accommodate the observance of Ramadan.
She acknowledges that women guards did not frisk detainees or search their clothing and were not allowed to observe detainees while showering or disrobed. When issues would arise that are outside of the SOPs, she says, she would work those issues through the chain of command.
Nevin now comes to the supposed change of policy with respect to women guards, but the Lieutenant Colonel denies that any change took place. “I know of no policy changes in the camp. It was simply an observation of staffing that I made through the research of who was staffed . . . at the facility.” Nevin asks whether she made “a decision related to female guards having physical contact with male detainees at any time during your tenure as Camp VII commander.”
“Sir,” she responds, “I made a decision to rebalance my staff as I was dealing with shortfalls, and that did involve moving female noncommissioned officers into roles where they had more direct contact with detainees, yes.” But it was not a policy change, she insists, just a staff rebalancing that occurred near the end of last summer. The result was that some women got assigned to the escort platoon, which moved detainees between the camp and the court and the legal visit location. These women were trained in advance: “I was not about to put untrained individuals in contact with the detainees.”
An escort team consists of between four and six positions, and there were between 30 and 40 soldiers assigned to the escort teams. Of these, about ten percent were female.
Nevin asks if there was “a practice of when a detainee objected to being touched by a woman . . . that if there were a male nearby who could perform the same task, that person would be asked to do that?”
“Absolutely not, sir.” The roles on the escort teams “are assigned very specifically and they’re performed in a very specific manner for both the safety of the detainee and the soldiers. We don’t swap people out because then things are missed and you run into problems.”
Nevin pushes: But wasn’t that the practice before you arrived? “I can’t speak to that,” she answers. “It was not a part of the SOP.” And that’s not a subject you discussed with your predecessor? “No sir. He had no female guards either. There would be no occasion for such a conversation.”
At this riveting juncture, Judge Pohl calls a 15-minute recess.
When we return, Judge Pohl gives the order Bin Attash requested to his objectionable “female lawyer.” And Nevin continues his examination of the female Lieutenant Colonel. He’s still trying to figure out what the prior practice was with respect to female guards. But she’s not helping him. She doesn’t remember whether there were female guards in the period just prior to the period prior to her arrival. “I did review the staffing prior to submitting the declaration, but I don’t recall exactly what time frames there were female personnel assigned to that facility.”
There follows a brief discussion of changes to the SOPs when a new guard force rotates in. Nevin elicits that the SOPs are not shared with the detainees. They are rules for the guard force. The detainees follow the rules of the camp, but the SOPs do not bind them and are not disclosed to them—though some of them are obvious based on their interactions with the guards. The Lieutenant Colonel acknowledges that minor changes to the SOP are frequent, but she says “they’re not arbitrary, and if there was a significant change to an SOP that would . . . trigger a camp commander to speak to the detainees and let them know there was a change.”
The Lieutenant Colonel, under questioning from Nevin, acknowledges that detainee cells are searched every day and that the detainees have to be removed from their cells for the searches to occur. The removal teams, because of the relative numbers of men and women on the guard force, can be composed of all-male guards. And Nevin wants the Lieutenant Colonel to acknowledge that the detainees have ways of gaming the timing of their searches so that they only get the all-male teams.
But she’s not playing ball on this. “We did not change guards to accommodate a detainee, whether or not a detainee liked a particular guard or didn’t like a particular guard. Whoever was assigned to the tier did the moves and did the cell searches.”
But Nevin here has stumbled on something interesting. For in making this claim, the Lieutenant Colonel has acknowledged that she was initially restricted in using her female soldiers for certain assignments but requested—and received—a change in that restriction because of staffing shortages.
Nevin goes on: You move detainees for a variety of reasons. There are commission hearings, legal meetings, medical appointments, recreations, etc. He asks for “a very rough estimate of what percentage of all of the movements is the legal and commissions.” She can’t say. The tempo of legal meetings changes a lot, she says.
Nevin now turns, over the objection of government counsel, to a different question: “you described an obligation to treat these detainees humanely, and I want to ask you if that, in your mind, includes understanding their circumstances, the circumstances of their detention before they came to Camp VII.”
She responds that she “dealt with the detainees as I knew them. . . . If they raised concerns, requested special accommodations based on some individual issues, that is something that I would listen to and work with the chain of command to see if it would be accommodated.” Nevin tries to ask whether she’s read the SSCI report on the RDI program, but Judge Pohl sustains the government’s objection.
Nevin is undeterred: “you made a decision that the detainees would be placed into contact with female guards in a way that they had not been previously. When you made that . . . decision, and taking into account your goal of providing humane treatment, did you consider the fact that these detainees had been tortured in part by having women be involved in the torture in a way that was offensive and frightening and compelling to them?”
The Lieutenant Colonel responds that her decisions with respect to female guards were made “based on the operational factors of these qualified soldiers that I had available to me at the time. So no, I did not dig into the background of every individual detainee. That would be an unmanageable process every time we had to make an operational decision.” Moreover, she says, the objection was based on cultural and religious factors, not based on prior mistreatment. And the decision was not entirely her own. She made it, she says, in consultation with the cultural advisor to JTF GTMO. Nevin pushes on whether it was appropriate culturally to put detainees in close contact with women guards given SOP 39. But she is unmoved. “There was an operational need, sir.”
Nevin tries to go further but Judge Pohl will not let him. He spends the next several minutes trying to bring the SSCI report back into the discussion but Judge Pohl is having none of it. “Were you advised of their prior treatment in U.S. custody?” he finally asks.
“And did you make any effort to learn of it?”
“Sir, I made the effort to run the facility, the detention operation facility [as] safely, securely and humanely as I could during the time that I was there with the information that I knew about the detainees based on my training and based on what the detainees disclosed to me.”
And on that note, the commission breaks for lunch.