Editor’s Note: This post represents a modest adjustment in Lawfare‘s military commissions coverage, one made necessary in part because of the surge in criminal hearings at Guantanamo in the coming weeks and months. For a full explanation, please see the first post in this series.
The second day of the week-long hearing in United States v. Abd al Hadi al-Iraqi revolved around AE 021, a defense motion seeking to prevent female guards from physically contacting the accused, including during movements to and from legal and medical appointments and commission proceedings. The defense has filed this motion based on the religious beliefs of the accused that forbid men from having physical contact with women to which he is not married or closely related. The commission has already entered an interim order granting such relief.
The government called its first witness under the pseudonym "Escort Guard," a female noncommissioned officer in the Army National Guard and civilian police officer. On direct examination, Escort Guard testified that she first came into physical (and visual) contact with the accused on October 8, 2014, as team lead for moving him and another detainee from their detention cells to another facility for a legal appointment. She described how she touched the shoulder of the accused and of the other detainee so as to maintain positive control over their movements when transferred to and from a van that was used to ferry the detainees to another facility. Further, Escort Guard noted that her face was not covered in any way and the accused did not react negatively when she touched him, in contrast to the other detainee, who "started flipping out" and repeatedly asked her why she was touching him but did not refuse movement.
Escort Guard also overheard a conversation between the accused and the other detainee during the van ride on the way to the legal appointment where they discussed (in Arabic and later translated by "[o]ne of the guards who understands a little Arabic") the physical contact with Escort Guard. She adds that the accused and the other detainee "started laughing about it." However, when the guards moved the accused back to the van for the return trip, he did not want to be moved by a female. Subsequently, the chain of command determined that females were no longer allowed to come into physical contact with the accused. This directive not only complicated the scheduling of movements of the accused, but it also made Escort Guard "feel like less of a soldier" because she prevented from doing her job on account of her sex.
The defense's cross examination of Escort Guard focused on her awareness of the Muslim faith's restrictions on physical contact between men and women. She agreed that the detainees are afforded many accommodations based on religious belief—including prayer times, religious holidays, and specific food—that are not offensive to any of the guards because, as Escort Guard admitted, "it's part of my job, and I just do my job." She also went into more detail about the accused's objections to her touching him on the return trip: He respectfully objected to her physical contact, said he did not believe that she moved him on the trip to the facility, and repeated numerous times that he was a Muslim and did not want to be touched by a woman. The defense pointed out that when the Escort Guard came into physical contact the first time, she came from behind him and he never turned his head and looked at her and so might not have seen her. The defense pressed Escort Guard on whether she was the first female to escort the accused in seven years of detention, to which she admitted that it was "common knowledge" that Navy female escort guards previously worked at the camp and may have come into contact with him.
The government's next witness was the current commander of Camp VII at Guantanamo and went by the pseudonym "Current Commander." On direct examination, he testified that when he oversaw the care, custody, and control of detainees at Camp Cropper in Iraq—"thousands of detainees"—he never heard of a complaint filed by a Muslim detainee regarding physical contact with a female guard. He also described the process of manning the group of Army National Guard that would deploy to Guantanamo: It was difficult to fill the roster because he could only recruit from those trained or willing to be trained as military police who had or could obtain top secret clearance. This process was conducted in a gender neutral fashion. When questioned about how he rotates the camp guards, Current Commander explained that he moves guards around daily in a random fashion to prevent guards and detainees from developing relationships and to minimize guard complacency. Restricting females from coming into physical contact with certain detainees reduces that randomness element, further complicates the guard rotations, reduces morale, and could affect awards and evaluations of female guards.
On cross examination, the defense focused on Current Commander's success thus far in accommodating the asserted religious beliefs of the accused while meeting the operational needs of the camp. The witness testified that despite only learning of the interim order preventing female contact with the accused when he started as camp commander in November, he was able to "execute the order as appropriate," though it is an open question whether such restrictions are sustainable. On redirect, Current Commander testifies that if these restrictions were expanded to all moves of the accused, rather than only moves to and from legal appointments and commission hearings as it is now, he would be "operationally ineffective."
The next witness for the government was the commander of Camp VII when the commission restricted physical contact between the accused and female guards during transport to legal proceedings. She appeared by video teleconference and went by the pseudonym "Former Commander." Like Current Commander, she described the difficulty of manning her deployment and noted that the decision to accept female volunteers was the only alternative to ordering those who did not volunteer for the post to go to Guantanamo. She also noted that she never heard of complaints from detainees about physical contact with female medical personnel at the camp, including optometrists and physical therapists.
Former Commander admitted on cross examination that she was able to accommodate the commission's order for six months and was not personally aware whether the accused came into contact with any of the female medical personnel at the camp. However, she stated that the order not to allow female guards to contact the accused during legal-related transports came down with so little time left in her rotation that "we were not put in the position of having to move people around, so I did not have to adjust based on the order."
Finally, the government called its last witness under the pseudonym "Tier Guard." She testified on direct examination that when she was stationed at Camp Cropper in Iraq, none of the 100 or so detainees with whom she interacted complained about physically contact with her performed during the course of her duties. Similarly in Afghanistan, she processed hundreds of male Muslim detainees—physically contacting them to get their fingerprints—and never had an objection. She is now at Guantanamo and explained that the restriction on female contact with the accused reduces the camp's flexibility when conducting detainee movements and is "creating a rift" between the male and female guards.
The commission recessed at this point in Tier Guard's testimony and returned in a closed session for the remainder of the day.
This week's final day of argument in the case of United States v. Abd al Hadi al-Iraqi is devoted to arguing the merits of AE 021, the defense's motion "that no females be used to physically transport [the accused] to legal meetings or any appointments as it substantially burdens his free exercise of religion and access to counsel."
The defense argued that the recent introduction of female guards engaged in "direct, religiously prohibited, unwanted, and inappropriate physical contact" with the accused violates his "sincerely held religious beliefs and is a sin under the Muslim religion." The government provided no evidence that the accused had been touched by a female during the seven years he has been held at Guantanamo. The accused expressed approximately 60 times "with respect and dignity" that he did not want to be touched by a female guard because it is against his religious beliefs.
Among the laws cited by the defense: The First, Fifth, Sixth, and Eighth Amendments of the U.S. Constitution; the Religious Land Use and Institutionalized Persons Act; and customary international humanitarian law. The defense also cited the Religious Freedom Restoration Act (RFRA) and the Supreme Court's recent interpretation of that law in Burwell v. Hobby Lobby—a case about the applicability of the Affordable Care Act's contraception mandate to corporations—for the principle that the government may not substantially burden the religious beliefs of nonresident aliens except through the least restrictive means to accomplish a compelling government interest. According to the defense, the accused has proven his prima facie case of a sincerely held religious, and the government has failed to show that it has used the least restrictive means to further its compelling interest in this case.
The government argued that the Hobby Lobby case and RFRA, which impose a strict scrutiny test on restrictions on religious freedom, do not apply extraterritorially to Guantanamo detainees. Instead, the proper standard to apply to this motion is the rational basis-like test under the Supreme Court's Turner v. Safley opinion and subsequent DC Circuit cases. Given the "substantial judicial deference to policy decisions by professional jailers or those who operate detention facilities," the evidence that the government presented of the challenges in filling the manning document for a deployment to Guantanamo and maintaining safety and security at the detention facility, and the government's legitimate penological and military interests in the current Camp VII operations, the commission should defer to the government's policies in this instance.
The government also pointed to a number of religious accommodations provided by the Guantanamo leadership and guards: Detainees are given qurans, prayer rugs, prayer caps and prayer beads; guards maintain respectful silence during prayer times; meals are scheduled around sunrise and sunset during Ramadan; detention cells have arrows pointing towards Mecca; and detainees may grow full-length beards, among other accommodations. The prosecutor pointed out that these examples demonstrate that when a religious requirement does not interfere with the "fundamental duties and responsibilities of the guards," the government will "go to great lengths" to accommodate the detainees.
The defense presented to rebuttal and the commission went into recess until March 23, 2015.