A war court prosecutor Thursday cast an Iraqi captive’s request to not be touched by female guards as part of a wider al-Qaida conspiracy — and asked a military judge facing a discrimination complaint to rule for the women.
Army Lt. Col. David Long, the prosecutor, appealed to the judge to put the American troops first, invoking the morale and safety of the guards at Guantánamo’s secret prison. He also said war-on-terror captives like defendant Abd al Hadi al Iraqi, 54, can’t rely on the U.S. Supreme Court’s Hobby Lobby religious accommodation decision.
“This religiously offensive, unwanted touching by women violates Mr. Hadi al Iraqi’s sincerely held religious beliefs and is a sin under the Muslim religion,” replied Marine Lt. Col. Thomas Jasper, Hadi’s lawyer. He said Hadi, awaiting trial for alleged war crimes he committed as commander of al-Qaida’s army in 2002-04 Afghanistan, was only touched by men in his first seven years at Guantánamo.
The judge, Navy Capt. J.K. Waits, made no ruling in the controversy that has raged at the Camp 7 prison for former CIA captives since Hadi refused a female guard’s touch Oct. 8, and was forcibly moved from a cell.
That means, meantime, until the judge decides, female guards at the secret lockup are forbidden to touch Hadi to and from court and legal meetings. They can, however, handle him during movements to other appointments such as medical checkups and International Red Cross visits.
Defense lawyers want female guards prevented from touching him altogether. The Iraqi’s religious conviction is so deep, his lawyer said, that he’ll refuse his upcoming first video chat with his wife and children if a female guard comes to shackle him up and lead him there with her hand on his shoulder.
“His Muslim faith,” said Marine Lt. Col. Thomas Jasper, “is the only thing he has left right now. It’s what he clings to.”
A day earlier, prosecutors called four soldiers — a man and three women — to testify about how Waits’ November no-touch order complicated and potentially endangered operations at Guantánamo’s clandestine lockup for 15 former CIA captives.
It emerged through war court testimony that Camp 7 is run by a succession of Army National Guard units, drawn each year from a different state, that have struggled to find skilled soldiers with security clearances who want to serve at Guantánamo. So last year, after years of restricting Camp 7 escort-guard duty to men, the Massachusetts National Guard trained and used two female escorts.
Once Hadi refused to be touched, other captives also followed. The five 9/11 defendants got a temporary restraining order, too, though a female guards no-touch hearing in that case is likely months away. The commander in charge of the prison warned the judge of a spillover affect.
At one point Thursday, the judge appeared perplexed by a Muslim scholar’s explanation of the no-touch rule as “a precautionary measure to prevent illicit sexual intercourse.”
Touching can lead to “sexual arousal,” Hadi’s Marine lawyer said.
“We’re talking about touching on a shoulder and on a body cuff handle,” the judge replied. “So it’s going to possibly lead to sexual intercourse on the tier at the camp that Hadi al-Iraqi is residing at right now?”
This week, prosecutors showed the court a note from the alleged 9/11 mastermind, Khalid Sheik Mohammed, advising Hadi on female guard litigation strategy — prompting the prosecutor to declare that an al-Qaida conspiracy continues to this day inside Guantánamo’s most secret prison.
His charge sheet also alleges that Mohammed, the accused 9/11 mastermind, gave Hadi $100,000 in 2002 and the two men conspired in an unrealized assassination plot of Pakistani President Pervez Musharraf.
The prosecutor, Long, invoked those allegations and called Hadi’s religious accommodation claim a continuation of the beliefs that brought him to al-Qaida, to swear an oath of allegiance to Osama bin Laden and to blow up the Bamiyan Buddhas.
“That collusion, that conspiracy, endures,” Long said. “The foundation for which al-Qaida is built continues, that conspiracy continues.”
Jasper dismissed the notion of an ongoing conspiracy, noting that the letter never reached Hadi. Guards found it inside a newspaper, according to court testimony, and gave it to the prosecution.
Mohammed suggests questions that Jasper should ask Hadi, were he to testify on the female guard issue — “Did they use women guards by force? Did they hurt you?”
The Marine officer said he didn’t take the alleged mastermind’s advice.
The potential impact of two gender discrimination complaints filed by some female guards against the judges who issued the no-touch orders was unclear.
The chief prosecutor, Army Brig. Gen. Mark Martins, said Thursday that typically local commanders have two weeks to look at a complaint — and the requested remedy — before deciding what to do.
But an ongoing criminal proceeding take precedence, he said, meaning the Equal Employment Opportunity Commission claim could take longer.
The general said he had not seen the discrimination complaint.
Part of the problem is that, although there are more then 2,000 troops, civilians and contractors assigned to the detention center — which now holds 122 detainees — Camp 7 is a separate, secret entity with a subset of the staff trained for duty in its elite unit, Task Force Platinum.
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