GUANTANAMO NAVAL BASE, CUBA – The commander of the guard force for Joint Task Force (JTF) Guantanamo acknowledged in testimony Thursday that the five Sept. 11 defendants had been tortured at CIA black sites but did not accept that those past experiences — which included sexual humiliations — should support detainee complaints about being touched by female guards.
The witness, Army Col. David Heath, said that the defendants were trying to stall the proceedings with their objections to handling by female guards on their way to court and legal meetings. He oversees detention operations for the 107 detainees on Guantanamo Bay, including the Camp 7 compound where the 9/11 defendants and nine other high-value detainees are held.
His testimony was generally consistent with current and former Camp 7 commanders that a judge's temporary ban of female guards in escort units for the defendants did not cause any “vulnerability” in camp or transportation security but did create problems for the force with morale, staffing and performance review of the soldiers.
“We are succeeding in our mission while obeying the judge’s order,” Heath said.
That judge, Army Colonel James Pohl, shares Heath's rank. Pohl issued a temporary ban on female guards in January in response to defense arguments that the handling of their clients by female guards violated the defendants' religious beliefs.
Heath’s testimony marked the close of the unclassified, public portion of testimony on the female guards issue. Pohl plans to hear classified testimony during commission hearings later next year.
One of the prosecutors, Ed Ryan, asked Pohl to lift his ban before a final issue is ordered. Pohl refused, then moved on to other matters.
Thursday’s hearing concluded with Walter Ruiz, lead attorney for Mustafa al Hawsawi, resuming oral argument on a long-pending motion to have the case dismissed, or at least the death penalty taken off the table, for “unlawful influence.” All defense teams have joined the motion, which claims that public statements and other actions by government officials have attempted to rig the case towards guilt and execution.
Upon assuming his role in June 2014, Heath approved a list of standard operating procedures (SOP) that said “close contact with unrelated females is culturally inappropriate.” He signed another SOP, dated Oct. 29, in which that statement had been edited off. That was also when he signed a declaration in litigation over the female guards issue in the case against Abd al Hadi al Iraqi, another high-value detainee held at Camp 7. (The judge in the Hadi case issued an interim ban but later lifted it.)
In his occasionally testy exchange with David Nevin, who represents Khalid Sheikh Mohammed, Heath said that he did not sign off on the SOP change in response to the litigation.
“I did not correlate the two,” Heath said.
A declaration filed by Heath in the litigation said that female guards have worked at Camp 7 for "most of its existence," and added in testimony that there was an all-male period for one rotation between 2013 and 2014. He acknowledged that his prediction in the declaration that Pohl's ban would prevent females from serving as guards had not yet come true, though he said it was "a logical assumption."
Heath echoed the testimony of Camp 7 commanders by saying he did not do in-depth research on detainee experiences before their 2006 arrival at Guantanamo Bay. However, he acknowledged reading parts of the Senate Intelligence Committee Report on Torture. He also said that understanding a detainee’s physical and mental ailments were a part of providing safe and humane treatment.
When questioned by Nevin, he said he knew the Sept. 11 defendants were “physically and mentally mistreated” but did not recall specific examples, such as when Nevin described a diaper-clad detainee being suspended for long periods from a ceiling so he would become unclean and thus unable to pray.
Walter Ruiz, the lead lawyer for Mustafa al Hawsawi, also raised the issue of past treatment in his direct examination.
“I know the men in Camp 7 listed in the rendition report were tortured,” Heath said, adding he did not know about detainees in the other two camps.
Of the 107 detainees under his control, Heath said that the five 9/11 defendants and Hadi were the only ones to complain about being touched by female guards. Defense attorneys say this is because before they arrived at Guantanamo all six suffered prolonged torture that included sexual humiliations and interference in practicing their religion.
But Heath told another defense lawyer, James Harrington, who represents Ramzi bin al Shibh, that the defendants' complaints are “based on an attempt to stall these proceedings.”
He acknowledged differences in some tasks: Female guards do not perform frisk searches and they do not observe detainees when they are naked. He said this did not violate the principle of gender-neutrality and instead was based in “common decency” and “American values.”
Heath told Nevin that, similarly, a female guard would not be allowed to see the attorney unclothed.
"It makes me a little uncomfortable that you imagine me as a detainee," Nevin said.