GITMO Judge Defers Lifting Order Accommodating Muslim Detainees After Remarks By Top Brass

As previously reported, early last year a military judge at Guantanamo Bay issued an interim order requiring authorities to stop using female guards to move 5 defendants held in a top-secret Guantanamo unit back and forth to meetings with their lawyers. Defendants had been refusing to meet with counsel because physical contact with the female guards violates their Muslim religious beliefs.  AP now reports that this past Thursday the military judge, Army Col. James Poh, issued a 39-page ruling (not yet publicly released) saying that he will eventually lift the order.  However he postponed doing so for six months to show his displeasure at criticism of the original order leveled by Defense Secretary Ash Carter and Joint Chiefs of Staff Chairman Gen. Joseph Dunford during testimony before Congress in October. They called the judge's order outrageous.  Poh says that this kind of statement could be seen as an improper attempt to influence the Military Commission.  In his ruling, he said in part:

These comments were entirely inappropriate. They crossed the line. Senior military leaders should know better than to make these kinds of comments in a public forum during an ongoing trial.

He added that he did not take this step lightly, and might lift the order sooner if senior military officials took "appropriate action."

UPDATE: Here is the full text of the Military Commissions' ruling in United States v. Khalid Shaikh Mohammad, (MCTJ, April 28, 2016).

Military Judge Lifts Order Accommodating Religious Concern of GITMO Detainee

The Miami Herald reported yesterday that a military judge, Navy Capt. J.K. Waits, has lifted his prior restraining order that had barred women guards from being used at Guantanamo Bay to transfer former al Quaida commander Abd al Hadi al Iraqi to and from meetings with his lawyers. Hadi had objected on religious grounds to the physical contact with female guards that necessarily occurs during the transfers. However, female guards then filed complaints with the Defense Department's Office of Diversity Management and Equal Opportunity claiming that the orders amount to gender discrimination. (See prior posting.) While the Feb. 24 decision lifting the restraining order is still under seal for security review, lawyers who have seen it say it is not based on the Religious Freedom Restoration Act, but instead on a strict line of case law.  When released, the opinion will be available at the Office of Military Commissions website.

In response to the decision lifting the restraining order, al Hadi's lawyer issued a statement saying:

We respect the decision by the Commission, but believe that Judge Waits and JTF GTMO misunderstand how important Hadi al-Iraqi's religion is to him. Again, we are asking for a very simple accommodation so a devout Muslim, pending trial, can continue to practice his religion without restriction and being subjected to a violent force cell extraction before attending mandatory medical appointments, legal meetings, court sessions and all other essential visits.

GITMO Inmate Invoking RFRA Wants Only Male Guards During Transfers

Miami Herald reports that at a pre-trial hearing at Guantanamo Bay yesterday, the defense lawyer for former al Quaida commander Abd al Hadi al Iraqi asked for an expansion of the existing order barring female guards being used to transfer al Hadi to and from court and meetings with his lawyers.  Al Hadi who says that his religion bars touching of males by females who are not close family members wants the order extended to cover his transfers to medical, Red Cross and recreation yard visits.  His lawyers cite the Supreme Court's Hobby Lobby decision to back their request for a religious accommodation.  According to facts that came out in yesterday's hearing, until last October only men were assigned to the elite guard  unit at Guantanamo's Camp 7 that houses 15 prisoners who have been held by the CIA for years.  But then a female lieutenant colonel took charge of Camp 7 and recruited women to do escort duty as well.  Officials say that military morale has suffered since the military judge's order barring women soldiers from touching male prisoners being transferred to meetings with their lawyers. (See prior related posting.)

Female GITMO Guards File Discrimination Complaints After Judges Grant Prisoners' Accommodation Requests

Muslim defendants in two cases before military commissions at Guantanamo Bay have been objecting to the military's assigning female guards to transfer them to meetings with their attorneys and to hearings.  The transfers result in physical contact between guards and the prisoners.  Military judges have issued at least interim orders barring the practice which violates defendants' religious beliefs. (See prior related postings 1, 2). Now AP reports that female guards at Guantanamo have filed complaints with the Defense Department's Office of Diversity Management and Equal Opportunity claiming that the orders amount to gender discrimination.

Guantanamo Military Judge Orders End To Use of Female Guards For Objecting Muslim Defendants

AP reports that a military judge at Guantanamo Bay yesterday issued an order that, pending a final decision, authorities should stop using female guards to move 5 defendants held in a top-secret Guantanamo unit back and forth to meetings with their lawyers. Defendants have been refusing to meet with counsel because physical contact with the female guards violates their Muslim religious beliefs.

Kerry Asks Vatican For Aid In Relocating Guantanamo Detainees

Catholic News Service reported that U.S. Secretary of State John Kerry, in Rome yesterday, met with Vatican Secretary of State Cardinal Pietro Parolin.  As part of their discussion, Kerry asked the Vatican for "support in the search for appropriate humanitarian solutions for the current detainees" at Guantanamo Bay so that the Obama Administration can move on its commitment to close the prison at Guantanamo.

GITMO Detainee Seeks End To Use of Female Guards In Transporting Him

On Oct. 16, lawyers for Guantanamo detainee Abdul Hadi al Iraqi filed an Emergency Motion (full text, redacted) with the Military Commission seeking an order to prohibit female guards from being used during al Iraqi's transfers to and from hearings and meetings with attorneys.  Al Iraqi's Muslim beliefs prohibit him from having physical contact with women, which occurs during guards' shackling and unshackling him.  In seeking relief, al Iraqi's attorneys cite RFRA, as well as the 1st, 5th and 6th Amendments.  A hearing on the motion is scheduled for Nov. 17. Reporting on developments, the Miami Herald focuses on the decision by military censors to black out references to "female" and "male" in the redacted version of the motion.

Guantanamo Bay Detainees Argue Hobby Lobby Decision Makes RFRA Applicable To Them

AlJazeera reports on emergency motions filed last week in D.C.'s federal district court on behalf of two Guantanamo Bay detainees for temporary restraining orders to prohibit the government from denying the detainees the right to participate in communal prayer during Ramadan. The motions in Hasan v. Obama (full text) and Rabbani v. Obama (full text), both filed July 3 by the British advocacy organization Reprieve, argue that the previous D.C. Circuit decision in Rasul v. Myers holding that Guantanamo Bay detainees are not persons protected by the Religious Freedom Restoration Act has effectively been overruled by the Supreme Court's recent Hobby Lobby decision. As the argument is framed in the Rabbani motion:

The holding and express reasoning in Hobby Lobby makes Rasul a dead letter. Rasul relied on Supreme Court case law that predated Smith and excluded nonresident aliens from the scope of constitutional protections guaranteed by the Fourth and Fifth Amendments. Hobby Lobby wholly undermines Rasul by holding that the pre-Smith Supreme Court case law does not restrict the scope of “person[s]” protected by the RFRA, which Congress intended to exceed the scope of constitutional protection as set forth in the pre-Smith case law. Hobby Lobby instructs that the scope of “person[s]” protected by the RFRA is to be determined by reference to the definition of “person” in the Dictionary Act, not by reference to the pre-Smith case law.

... The Guantanamo Bay detainees, as flesh-and-blood human beings, are surely "individuals," and thus they are no less "person[s]" than are the for-profit corporations in Hobby Lobby or the resident noncitizens whom Hobby Lobby gives as an example of persons to whom the RFRA must apply.

A hearing on the emergency motions is scheduled for tomorrow morning.

DC Circuit Dismisses Suit By Former Gitmo Detainees Claiming Disruption of Religious Practices

In Allaithi v. Rumsfeld, (DC Cir., June 10, 2014), former Guantanamo detainees brought a damage action under the Alien Tort Statute, as well as under the 1st Amendment and RFRA, against various individuals who authorized and supervised their detention.  At issue in this appeal is the claim by certain of the plaintiffs that after they were cleared by the Combatant Status Review Tribunal, but before they were released, they were mistreated in various ways, including disruption of their religious practices. The appeals court agreed with the district court that the individual defendants were acting within the scope of their employment in carrying out the challenged actions.  Therefore the claims should have been brought against the United States government pursuant to 28 USC Sec. 2679(d), and not against the individuals. Center for Constitutional Rights issued a press release discussing the decision.

DC Circuit: RFRA Does Not Protect Guantanamo Detainees

In Aamer v. Obama, (DC Cir., Feb. 11, 2014), the D.C. Circuit denied a preliminary injunction to Guantanamo detainees who brought a habeas corpus action to challenge the government's force feeding protocol used to protect the health of detainees engaged in protest hunger strikes.  Among the detainees' claims was that their force feeding violates the Religious Freedom Restoration Act because it prevents them from from engaging in communal prayers during Ramadan.  Judge Tatel's majority opinion (which also dealt at length with other issues) held that RFRA’s protections do not extend to Guantanamo detainees. He reaffirmed prior precedent in the D.C. Circuit that nonresident aliens do not qualify as protected “person[s]” within the meaning of RFRA. Judge Williams, dissenting, did not reach the RFRA issue because he urged dismissal of the entire action on jurisdictional grounds. [Thanks to Arthur Spitzer for the lead.]