Wednesday, October 28, 2015

Female guards and male prisoners at Guantánamo

A row has broken out about a military commission judge's ruling that Guantanamo defendants should not be touched by female guards. Details can be found here, thanks to the Miami Herald's Carol Rosenberg, dean of the Guantánamo press corps. The Secretary of Defense, Chairman of the Joint Chiefs of Staff, U.S. Southern Commander commander, and several senators have criticized the ban, which is the subject of pending equal opportunity complaints against the judge, Col. James L. Pohl. Is this now-- on top of everything else -- a case of unlawful command/congressional influence? The Herald reports:
“These men have been subjected by the U.S. government to documented, systematic sexualized attack on their Islamic identity,” Marine Maj. Derek Poteet, [Khalid Sheik] Mohammed’s detailed military counsel, told the Miami Herald. “So forced touching by guards of the opposite sex is extremely inappropriate.”
Poteet also called it “also extraordinarily inappropriate for these respected military and civilian leaders to inject themselves into the matters that are currently in litigation in a military commission by a military judge, raising the specter of unlawful command influence.”
Postscript: Human Rights First's Daphne Eviatar has this commentary on Huffington Post. Excerpt:
In this case, it's not clear what Judge [James L.] Pohl will do. Now that the defense secretary has publicly criticized Pohl's ruling, it could look like he's submitting to command influence if he reverses his earlier decision. If he refuses, he'll have to respond to the pending female guards' discrimination complaints against him. In the past, he's been reluctant to do anything that suggests he's trying to control the guard force or micro-manage the detention center. 
The issue of command influence would not come up if the case were in a civilian federal court because those federal judges have life tenure, specifically to shield them from potential political or other influence from government officials. Although President Obama and his then-attorney general Eric Holder originally wanted the case brought in federal court, they ultimately yielded to political pressure to bring it at Guantanamo, and Congress has since imposed restrictions on moving any Guantanamo detainees to the United States, even for trial. Unless new legislation changes that, the case will remain stuck in Cuba. 
The judge heard testimony from Guantanamo guards involved with the complaints Friday afternoon, but is not expected to rule on the claim of unlawful command influence before hearing additional arguments and testimony, possibly at the next set of hearings in the case, scheduled for December.

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