Case Coverage: 9/11 Case

12/8 Session: Afternoon Session: Is that Culturally Inappropriate?

By Benjamin Wittes
Friday, December 11, 2015, 4:21 PM

The commission reconvenes at 1:22 pm, and Michael Schwartz—representing Walid bin Attash—takes up the questioning of the Lieutenant Colonel. It’s afternoon now, and the 9/11 trial is still focused on the key issue of female guards offending the delicate sensibilities of men accused of mass murder by touching them.

Schwartz starts by verifying that Bin Attash had been among those complaining about female guards touching him. But he then switches gears, and they talk for a while about the mechanics of how she raised the concern about staffing that lay behind the change. They also talk about how she knows—to the extent that she does—the history of the gender composition of the guard force. After a relatively brief exchange, Schwartz turns things over to Jim Harrington, attorney for Ramzi Binalshibh.

Harrington starts by asking her about her training to run a detention facility. He verifies that she was not initially the person tasked with this job. She learned she was going to take over Camp VII in December 2013, when she went down to Guantanamo for a “pre-deployment site visit.” At that point, she learned who was in the facility and that it contained the high value detainees. She was given what she describes as “limited background” on the detainees at that point. She also learned that some were facing war crimes charges and others might as well.

Harrington asks whether she undertook any “personal investigation” into the men whose care she was to supervise. She responds that “I used the background information that was available at the facility and focused on the operations as they were when I got there and maintaining them in a safe and secure manner.” Harrington pushes on whether she looked in their histories, but she says that she had only to the extent it implicated “how they had been behaving in the facility, not their crimes, which the commissions will handle.” She examined some “open source information about what they were charged about,” but no “in-depth background”—only “disciplinary records, whether or not they had been compliant, whether or not they had attacked guards, threatened to attack guards.” Harrington asks specifically whether she examined Binalshibh’s records, and she confirms that she did.

Harrington now turns to the laws of war, and tries to explore with the Lieutenant Colonel what rights the detainees have under the laws of war, but this is really not her department. She follows the SOPs, she says, and those are drawn up with legal input. If she saw a problem, she can certainly raise it with the staff judge advocate, but “I don’t make an independent decision on that.”

They then discuss the rules of the camp and how detainees can make concerns known. And she confirms that Binalshibh specifically raised concerns about the matter at hand. “The detainee complained about some of the changes . . . and offered his own opinions on it. . . .”

“And did Mr. Binalshibh indicate to you that these changes were extremely upsetting to him?”

“He was, as I recall, animated, sir.”

“Mr. Binalshibh is not someone who’s afraid to express what his opinions are. Would you say that’s accurate?”

“Yes, sir.”

Harrington pushes: “I take it that . . . you knew nothing about what changes do to people who have been significantly traumatized in the past by abusive behavior; is that right?”

She responds: “Sir, I dealt with the detainees as I knew them in the detention facility and what I knew about them at that time, so that—the other factors were not in my decision-making processes.”

There follows discussion of the staffing issues at Camp VII and why the Lieutenant Colonel acted as she did, which ends when the video connection to her location drops and Judge Pohl decides to take a recess. When they return, Harrington and she discuss the anonymity of guards (who are identified by number, not name in the facility), and Harrington clarifies with her the precise objection Binalshibh had: He wasn’t concerned about female guards in general, right? She agrees that neither he nor the others complained about women doing work that didn’t involve touching the detainees. And he clarifies with her that “you understand that the complaint that they made to you was rooted in their religious practice: is that correct?”

She does not play ball with this, responding that some detainees complained and others did not and declining to comment on the source of the objection: “certain individuals voiced an objection to it. Their basis for it, I could only attest to what they said. I don’t know for sure . . . if there was another source.” When asked whether Binalshibh was not clear about the religious source of his objection, she responds: “he provided that argument, as well as other suggestions on what should be allowed with female soldiers in the facility.”

Harrington now hands the ball to Sterling Thomas, who picks up the questioning for Amar al Baluchi. He goes over briefly the procedural history of the change in staffing and then turns matters over to Walter Ruiz, who represents Mustafa al Hawsawi. He starts by verifying that the Lieutenant Colonel also testified on the same matter in the Hadi Al-Iraqi case and discusses with her the extent to which she has kept up with detainee issues since leaving Guantanamo. Then a colloquy on the training of the guards and the background of the cultural advisor with whom she consulted. Then one on how she came to take the position. He verifies with her that she has been selected for promotion. A few more brief exchanges and Ruiz too is done.

Now Edward Ryan rises for the government, who has a few things he wants to set straight with the Lieutenant Colonel: “Are you aware of any SOP . . . that requires you to compromise your mission to allow for every religious accommodation desired by the accused in this case, or by any detainee?”

“No, sir.”

Was the staffing decision based entirely on “ensuring the success of your missions, your responsibility?”

“Yes, sir.”

Under Ryan’s questioning, she testifies that she had no hidden agenda, and was not angling for a promotion, and spent a lot of time trying to accommodate religious beliefs among the detainees. She agrees with Ryan that “the success of your military operation [was] the ultimate paramount concern.”

They go over her professional history until Judge Pohl calls a recess.

After this, Ryan verifies that in her prior deployments, female soldiers touched male detainees without triggering complaints. He also verifies that not all detainees in Camp VII objected. “Is it even correct to say that some seemed to prefer having females contact them?”

“Based on their actions, yes, sir.”

“All right, I’ll bet.”

He asks her: “Do you believe you have an obligation . . . to avoid discriminating against any single person based on their gender?”

“Absolutely, sir.”

What about the rule that women service-members can’t observe male detainees while they’re showering or conduct body searches of them? That’s “based on protecting their basic privacy,” she responds. “Males don’t search females and females don’t search males, because it requires an intrusive search of areas that are considered private. It’s not religious based.”

She argues that shower-monitoring is very different from the escort teams: “having two people who are watching a camera coordinate where one is not watching the camera doesn’t take anyone away from their duty, nor does it require them to perform any sort of functions that they don’t normally do.” The escort team rules did require staffing changes—and staffing changes that can lead to errors.

What about “female engagement teams” who operate in the field to deal with women, where it would not be culturally appropriate for men to do so? That’s primarily for the protection of male soldiers, who may suffer the brunt of public outrage if they engage women directly, she testifies. It’s also to increase intelligence effectiveness, because women in those circumstances “potentially get additional intelligence that the males would not be able to get.”

More talk of staffing requirements and the facility. Then Ryan elicits from her that the problem began in August 2014, with the complaints coming from Hadi Al-Iraqi, KSM, and Walid bin Attash. She testifies that she talked to each one-on-one and that while she “appreciated their concerns, that operationally, I needed to use all of my soldiers.”

At that point, she also received word from Binalshibh that—as Ryan puts it—sought “even more restrictions he wanted to place on these actions.” But the court never gets to hear much about what Binalshibh sought, because this line of questioning produces an immediate objection and a lengthy colloquy over whether it’s too inflammatory to discuss. The objection, which comes from the other defendants’ attorneys, is that Binalshibh’s requests are irrelevant to their clients but potentially prejudicial as to them. Judge Pohl does not rule on this, and he seems confused by the motion. But the lengthy discussion evidently derails Ryan’s line of questioning, which never really gets off the ground.

When questioning resumes, Ryan is onto the impact of the Al-Iraqi order on the morale of the female troops, which the witness confirms was negative. “I did have to speak with them. . . . It was still a negative—had a negative effect on their morale.” She also notes that it could have a negative effect on their career prospects because “it wouldn’t give their supervisors the appropriate basis on which to evaluate their leadership skills as compared to their peers, their male peers.”

Ryan poses one more question: “in the course of your career in the military, as enlisted, as an officer for 32 years, did you ever face, you, yourself, personally, such an overt restriction on you being able to perform your duties and on your career progression, as this order?”

“No, sir.”

Nevin, KSM’s lawyer, now rises to redirect and starts by clarifying that she doesn’t mean her own career was injured by this episode, just that it limited her soldiers’ ability to do their jobs based on their gender and “could have a negative effect on their careers. . . .”

Nevin now tacks back to cultural awareness training materials from her earlier deployments, but she does not recall them in the kind of detail he is seeking. So Nevin turns instead to her testimony about the “female engagement teams” in the field. Isn’t the reason for these teams that there is strong cultural aversion in Muslim countries to direct contact between unmarried men and women? She acknowledges the point. Isn’t that the same point that SOP 39-5 is making when it says “Close contact with unrelated females is culturally inappropriate”? Sure.

Judge Pohl cuts him off. The questions, he says, have been asked and answered.

Nevin tries a few more lines of questioning, but he’s out of gas as far as new information goes and he stops relatively quickly. Harrington clarifies with the witness that she would not hold against someone the absence of experience arising from court order in a performance evaluation. The others are done too.

And so are we until Wednesday morning.