Case Coverage: 9/11 Case

12/9 Session: Afternoon Session: Did the Order Affect Operational Readiness?

By Benjamin Wittes
Sunday, December 13, 2015, 11:24 PM

Judge Pohl calls the commission to order, and this time, we actually have a session. Everyone is here except Khalid Sheikh Mohammed and Mustafa Al Hawsawi, but they have waived their presences voluntarily. So we’re good to go.

Judge Pohl, judicial authority emanating from his very robes, swears in another unnamed former Camp VII commander on video conference. This one is the Lieutenant Colonel’s successor, and the immediate predecessor to the current commander. He has testified before, in the Al Iraqi case. He’s a major in the Army National Guard with 16 years of service as an MP. Back in 2008, he was a camp commander and an MP at Camp Cropper in Iraq. He’s from Colorado, and he’s full-time in the Army National Guard.

Under questioning from David Nevin, Major Prior—as Judge Pohl calls him—testifies that he researched the staffing of the guard force back to its beginning and looked at what female guards did. The whole guard force, male and female, in his account, trains on all techniques.

Nevin elicits from him that he was responsible for the health of the detainees, including their mental health, and that this includes knowing about individual detainees’ particular vulnerabilities. Major Prior acknowledges, for example, that if a detainee had a severe allergy, it would be his job to know about it. Nevin asks whether this includes psychological vulnerabilities. The major says he might get guidance from a psychologist, but he basically assents to the proposition.

Nevin verifies that the major took over the camp in December 2014 and asks him whether he reviewed the SSCI report when it came out. He says he reviewed some of it. Nevin asks whether he remembers that the document reported that detainees had been forced to be nude in front of women. The major does not recall this. He also asks whether he remembers the rectal hydration allegations in the report. The major does remember reading about it but does not recall specifically whether women were involved in that particular allegation. Was this taken up with a psychologist, Nevin asks? It was not.

Nevin asks him whether he made any effort to assess whether these detainees had any special sensitivity to female touching. “Did you make an effort to determine . . . whether they might have some unusual sensitivity to that kind of touching, given their past experience in . . . the CIA's torture program?”

“I had conversations with multiple detainees regarding the touching of females. I don't believe any of them responded back based on what you talked about with that report. Most of them said it was more of a religious reason and not based on previous actions.”

Under further questioning from Nevin, Major Prior agrees that humane treatment is contextual: what is perfectly humane for one detainee may be perfectly inhumane for another. They then discuss the background of Major Prior’s unit a bit. And Nevin establishes that the relevant window of time was actually very short. The Al Iraqi order restricting female guards in that case had already been issued by the time Major Prior got to Guantanamo, and the order in the 9/11 case came only three weeks after he arrived. So there wasn’t actually a lot of time when he was commanding the camp in which he actually had discretion to use female guards. What’s more, during that time, nobody can seem to recall that there were any movements of detainees for legal or commission reasons. Major Prior does not recall how many there were, and Judge Pohl seems to think there were not any.

Nevin now turns to SOP 39, the document on religious and cultural accommodation. Is it true that it’s inappropriate to discuss certain matters with the detainees? Yes, Major Prior agrees; in fact, he considered all casual conversation between guards and detainees off limits. “It was pretty much business, did the detainee need something or that type of nature, the guards would fulfill that and so forth. But casual conversation was not authorized with the guard force to the detainees.” He also agrees that the document designates close contact with unrelated females as culturally inappropriate. So, Nevin pushes, it can’t have come as a surprise that some of the detainees objected to physical contact with female guards. Major Prior agrees.

He does not agree, however, that performance was unaffected. “There was strains throughout my deployment on making sure that we could uphold that order. It was an operational strain and an operational constraint,” he testifies. Yet you succeeded in following the order, no? “I guess [it depends] how you define succeed. Did we uphold the judge's ruling? Yes. Did it affect the overall readiness, the morale, you know, cohesion of the force that was there? It affected that.” But it didn’t affect security, did it? “I would disagree with that statement. I ran a highly sophisticated counter-elicitation program in which I moved guards around throughout the day, throughout the week, et cetera, so that they wouldn't be elicitated, nor would the guards develop relationships with the detainees. So with that said, I had to alter that elicitation program based on the movements that were made.” Nevin clarifies that no detainees escaped or got important information from guards. “Again, it increased the overall risk. When I have a trained and validated MP that can't do his or her job, that increases that overall risk. I mean, we have, you know, unpredictable detainees within that facility, so, you know, at the end of the day, you know, it’s paramount that my guards, you know, go home, and, you know, thankfully everyone had a successful deployment, was able to come home. But it did increase that overall risk when dealing with the detainees.”

At this point, they turn to more on the mechanics of the guard staffing. Approximately ten percent of the guards are female, we learn. Major Prior testifies that he left in August 2015 and has minimal contact with the issues since. He agrees with Nevin that there are basically seven reasons for detainee movements: legal meetings, commission hearings, DSMP, recreation, medical, media, and cell searches. About 80 percent of these involve movements within the facility—with only legal and commission hearings, the movements at issue here, taking detainees outside.

Nevin is now done and turns things over to Michael Schwartz for Walid bin Attash. He clarifies that there were multiple conversations with his client about the issue of female guards. And he verifies that Major Prior discussed Judge Pohl’s order and how to apply it with the staff judge advocate. He then turns things over to James Harrington for Ramzi Binsalshibh.

The witness throws Harrington an immediate curve ball. When asked whether he recalls Binalshibh, he says he had multiple conversations with him, but then adds—not in response to any question—that Binalshibh had been moved as much as a hundred times internally within the facility. And what’s more, he says in response to Harrington’s question, he doesn’t recall him objecting to women guards being involved in moving him. He had the option of not going to recreation or to media, he points out, and while he might have objected to women touching him, he did continue to go.

Walter Ruiz now takes up the questioning. He verifies that the former commander is not an expert on Islam, but focuses mostly on his claim that the order affected guard force effectiveness and security. Did you submit a report about this and how it undermined security? “There was no specific formal report.” Ruiz pushes: “Were there any specific breakdowns in the security of the facility that were attributed directly to the female guard issue that we are discussing today?”

“There was not.”

“Were there any documented instances of breakdown in security in the transportation of these men to and from legal visits or to and from military commissions that you could attribute to the female guard issue that we are discussing today?”

“No.”

After a momentary return to Major Prior’s training on matters Islamic, Ruiz is done.

Government counsel Swann now picks up the questioning and asks Major Prior about his service at Camp Cropper in Iraq. How many detainees was responsible for there? “[A]s low as 3,000 and as high as 12,000.” And were there female guards? There were—about 20 percent of the guard force. And did they come into contact with the detainees? They did. “And did any of the detainees object to being touched on the arm, the shoulder, or the hand to maintain positive control?” Not at Camp Cropper.

Swann has one final question: “what was the impact of the judge's order on your mission during the eight months that you had to operate under the order?”

Major Prior:

The impact hit us in different ways, sir. My operational readiness was affected. Again, I wasn't able to use all of my females as trained and validated MPs, so they had to be pulled off, literally every day off of their tier to go to another tier, which adversely affected my counter-elicitation program. I had to put the same soldiers back with the same detainees over and over again. And on the back side, those females that weren't authorized to move that detainee spent more and more time with other detainees that were not affected by this order. Additionally, it really destroyed the morale for a long time. These were trained and validated MPs that volunteered for a deployment, you know, that left their kids, their families for a year and now they can't perform the bulk of their duties. I had two teams, I had a male team and I had a female team, and I had to balance that force day in and day out and just that overall readiness, that morale. I can tell you like, as of today, you know, here we are in late December, I have soldiers, based on this deployment, that will be getting out of the military because of this. That's an embarrassment to our Armed Forces.

After a break, Ruiz rises on redirect. Were the detainees at Camp Cropper all Muslim? Almost all; there were a few Christians. Ruiz runs through a list of techniques asking if each were done at Camp Cropper. Were detainees smeared with fake menstrual blood? Were they straddled by women? Were they forced to be naked in front of women? Were thongs put on their heads? Were they forced to wear bras? Were they rubbed with perfumes? Were their knees and shoulders massaged by female interrogators? Were fingers rubbed through their hair? Was their private space invaded? To each, Major Prior acknowledges that these techniques were not used. Were you aware, Ruiz asks, that each of these techniques was found by the Army to have been used on Guantanamo detainees? The former camp commander says he was not aware of this.

On his redirect, Nevin verifies that Major Prior’s experience at Cropper was in 2008, after Abu Ghraib. Were any of the detainees involved in the CIA’s RDI program? The commander was unaware of that. Nevin clarifies that he was not commander of all of Camp Cropper, just a commander within the facility.

Then he turns to the major’s claim that the order on female guards was morale-decaying. He asks specifically about his testimony that some of the women were leaving the military over it. The major says that is, in fact, the case. They feel like second-class citizens, he says. Is it the only reason they are leaving? It is the “biggest reasons why.” Yes, they were told about SOP 39 and religious accommodations, but they expected to be able to perform their duties as MPs.

But, Nevin pushes, they knew they were dealing with all-Muslim detainees and they knew there were cultural limitations as a result, right? Yes, but they didn’t know the details of what they would be restricted from doing. “And your testimony is that because they weren't allowed to touch these detainees, these five out of the 14 detainees, on 20 percent of their moves, that they were so overwhelmed with dislike for the military that they quit?”

“That is correct.”

“Are you sure it wasn't something else that led them to quit?”

“I wouldn't use the word ‘quit.’ They have a service obligation, and when that expires, they can leave the military.”

Major Prior testifies, on Nevin’s pushing, that he can provide names if required to.

Nevin now turns things over to James Harrington, but Harrington covers little new ground, and Judge Pohl dismisses the witness.

The final witness of the day is the current camp commander—also unnamed and also a major. He testified back in October, so this is just a mopping up operation. But it’s an important one for Ruiz. After Harrington clarifies with the witness that his understanding was that the objection to female guards was on account of detainees’ religious beliefs, Ruiz homes in on the previous witness’s claim that there had been major operational impact.

The current major assumed his position in August and had a three-week turnover period with his predecessor, he testifies. He had no specific information that security had been compromised because of Judge Pohl’s order. There had not been problems with transport of detainees. And security is fine today, he claims. He trips Ruiz up a bit when asked whether there had been remedial action taken to protect the careers of the female guards who had lost experience as a result of the order; he says there has not been. But Ruiz turns back to the transport issue. The movements are getting done, the witness says.

On cross, Swann gets him to admit that there has been some impact, but there’s clearly a disparity in the accounts of those who had to implement the orders when they came down and those who are living with them a year out.

And with that, we are done for the day.