Female Guard Issue Stalls Progress in 9/11 Hearing

Yesterday, at the continuing mess that is the Guantanamo military commissions, the proceedings were interrupted by an extended debate over whether female guards should be allowed to come into physical contact with the alleged 9/11 conspirators and other detainees at the secretive Camp 7, which houses the base’s “high-value” detainees. While the hearings remain mired in these procedural matters, the start date of one of the most important trials in American history recedes further into the distance.

Some of the detainees object to female guards on religious grounds, and the matter has gotten quite a bit of attention, especially from lawmakers, who visited Guantanamo recently to talk to the guard force about the issue. Judge James Pohl ruled on it January, prohibiting female guards in Camp 7, which prompted a discrimination lawsuit and recriminations from lawmakers and military officials.

Yesterday, lawyers spent the day questioning the commander who assigned female guards to handle the detainees. Testifying from Massachusetts via video link, she said that after a shortage of guard staff and an increased demand for moving the detainees around the base (to attend hearings, among other things), female guards were assigned to handle the men.

If the 9/11 case was in federal court, the issue of female guards coming into contact with religious detainees would presumably have to be dealt with there too. But unlike Guantanamo military commissions, federal courts have clear precedents and rules, and can actually hold hearings on a regular basis, preventing the issue from taking over a year to address it.

Meanwhile, one of the defendants, Walid bin Attash, objected again yesterday to not being able to fire his civilian lawyer, Cheryl Bormann. At the last round of hearings, bin Attash brought the proceedings to a halt by asking what would happen in the military commissions if he wanted to represent himself. Since the commissions are an untested system, cobbled together from parts of civilian and military law, no one really knew the answer. It turned out that bin Attash just wanted to fire the civilian lawyer on his defense team, and the judge decided that he couldn’t. So now bin Attash is being represented in a case that may result in his execution by someone he doesn’t want to represent him.

These issues highlight some of the severe challenges of conducting these hearings in military commissions at Guantanamo. Instead of using time-tested federal courts, which have clear mechanisms to deal with procedural issues, and have handled hundreds of terrorism cases without issue since 9/11, the government has decided to use military commissions, which are confounded by the most routine legal questions. Instead of being able to hold regular hearings in a U.S. court, lawyers, observers, witnesses, and others are flown to the remote island prison, which ensures that the time it takes to address simple issues is extended to ridiculous lengths.

The hearings continue today, and maybe these specific problems will be solved. Others will undoubtedly pop up, delaying the start of the trial even more. It’s already been 14 years since 9/11, and nine years since the 9/11 defendants were shipped to Guantanamo. And with the continuing military commissions’ dysfunction, it will be many more until the 9/11 trial actually starts, let alone comes to a conclusion.


Published on December 9, 2015


Seeking asylum?

If you do not already have legal representation, cannot afford an attorney, and need help with a claim for asylum or other protection-based form of immigration status, we can help.