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A 9/11 Suspect Is Using the Hobby Lobby Ruling to Argue Female Prison Guards Violate His Rights

Lawyers argue that the new prison guard policy at Guantanamo could put in jeopardy the government's ability to seek the death penalty for certain detainees.

by Jason Leopold
Oct 22 2014, 7:15pm

Photo by Jason Leopold/VICE News

A high-value Guantanamo detainee has asked a military judge to end a new policy at the detention facility that allows female guards to escort him to meetings with his attorneys. He says that according to the US Supreme Court, the policy violates his religious rights.

Walid Bin Attash, one of the alleged plotters of the 9/11 attacks, is currently facing a war crimes tribunal. His legal team cited the Supreme Court's divisive decision in this year's so-called Hobby Lobby case to bolster his argument in an emergency motion filed this week.

The high-court's opinion in "Burwell v. Hobby Lobby Stores, Inc." says corporations cannot be forced to provide employees with certain types of birth control under the Affordable Care Act if it violates their religious beliefs.

Bin Attash, a Yemeni, is a devout Muslim whose religious beliefs prohibit physical contact between unrelated men and women. But a new policy at Guantanamo's Camp 7, the top-secret facility that houses more than a dozen former CIA captives, now requires female guards to have physical contact with the high-value detainees when escorting them to meet with their attorneys. A detainee's wrists and ankles are shackled when he's moved; two guards stand on each side of him, holding his forearms.

Requiring Bin Attash "to have physical contact with female guards violates the Religious Freedom Restoration Act (RFRA)," a 1993 federal law that protects a person's free exercise of religion, the 9/11 suspect's attorneys said in a statement Monday. "Prior to 2014, questions existed regarding RFRA's applicability to Guantanamo Bay detainees. Those questions were answered by the Supreme Court's recent decision, [which] conclusively establishes that the term 'person,' as used in RFRA, includes nonresident aliens" such as Bin Attash.

A former Hobby Lobby employee claims she was fired for having a kid. Read more here.

Air Force Captain Michael Schwartz, Bin Attash's military-appointed defense attorney, told VICE News that his client, who is facing the death penalty, has refused to meet with his legal team multiple times since October 8, when he says the policy was formally implemented.

"He took a risk to come meet with us on October 8 to explain the situation," Schwartz said, noting that Bin Attash was not escorted by a female guard that day.

Schwartz said Bin Attash feared his Koran would be harmed if a female guard showed up to return him to his cell and he refused. He added that another detainee, Abd al Hadi al-Iraqi, was recently forcibly extracted from his cell by a special guard force when he refused to allow a female guard to escort him back to the high-value camp following a meeting with his attorney; the extraction, Schwartz said, resulted in injuries to al-Iraqi.

Guantanamo spokesman and Navy Captain Tom Gresback disputed the allegation. 

"There is absolutely no truth to a detainee being injured during a forced cell extraction," Gresback told VICE News. "All moves are highly scripted to ensure the safety of both the guard force as well as the detainee."

This is the second time this year that a Guantanamo detainee cited the Hobby Lobby decision in court filings that allege detainees' religious rights are under attack by detention facility officials.

Other high-value captives, including Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, are also refusing to meet with their lawyers due to the possibility they will be touched by female guards. The changes to long-standing operating procedure could further derail the military commissions, which have been in the pre-trial phase for more than two years.

"This will threaten the government's ability to seek death in this case," Schwartz said. "A smart prosecutor would be on the phone with [Guantanamo officials] and saying, 'What the hell you are doing?'"

Gresback told VICE News that military officials at the detention facility have "no intention [of] modifying its assignment of job responsibilities to members of the guard force based on gender."

"The Department of Defense is an equal opportunity employer," Gresback said.

Army Lieutenant Colonel Myles Caggins, the Pentagon's spokesman for detainee policy and military commissions, told VICE News that military prosecutors would respond to Bin Attash's emergency motion "through appropriate court filings." He declined to respond to specific questions about the issue.

Schwartz said Bin Attash refuses to be moved from his cell for meetings with defense attorneys "unless he is assured he will not be touched by female guards."

"If it's a choice between committing a sin against Islam or meeting with his lawyers, he won't meet with his lawyers," Schwartz said.

Female guards were previously used at the top-secret camp in 2007 to escort detainees, but there was such an uproar among the captives that the rules were changed to ensure only men would escort. Camp 7 now has a new commander, a woman who is a lieutenant colonel.

"On this very issue, the camp commander came in and said we're going to implement female guards as escorts," Schwartz said. "Someone said 'No, we object. It violates our religious beliefs.' But the commander said the change was made to conform with Joint Task Force-Guantanamo practices at the other camps."

A majority of the 149 Guantanamo detainees are low-value captives — 80 of whom have been cleared for transfer — being held in maximum security at camps 5 and 6. Although female guards work at those camps, it's unclear if they escort detainees to an adjacent camp for attorney-client meetings and Skype chats with their families.

This is the second time this year that a Guantanamo detainee has cited the Hobby Lobby decision and the Religious Freedom Restoration Act in court filings that allege detainees' religious rights are under attack by detention facility officials.

Last July, attorneys for two low-value detainees asked a federal court judge to force the military to end its policy of denying captives the ability to pray together during the Muslim holy month of Ramadan. The judge, however, ruled against the detainees and declined to force a change to the policy.

Alka Pradhan, the attorney representing those detainees, told VICE News she intends to "revive the RFRA argument for other Guantanamo cases."

Last year, attorneys for several Guantanamo detainees sued over another revamped policy that they said impacted the detainees' access to counsel and violated their religious beliefs: genital searches. The procedure had been prohibited after a federal judge banned them, but following an appeal and the suicide of a Guantanamo detainee, they were re-introduced to stave off the flow of "contraband."

Bin Attash's legal team said in a statement that the use of female guards is simply the latest instance of the government hindering detainees' access to counsel:

In 2011, the prison administration seized and read hundreds of pages of Mr. bin 'Atash's privileged correspondence with counsel. In 2013, defense attorneys discovered surreptitious listening devices mounted to the ceiling of attorney-client meeting rooms. In early 2014, pre-trial hearings in Mr. bin 'Atash's case were stalled when the FBI was caught attempting to secretly infiltrate co-defendants' defense teams.

Bin Attash's lead attorney is a woman. Cheryl Bormann, a civilian death penalty defense lawyer, dresses in a traditional black abaya that covers her body when she appears in court at Guantanamo's Camp Justice and Bin Attash is present. Schwartz said when Bormann and other members of Bin Attash's legal team meet with him at Guantanamo, Bormann does not touch Bin Attash.

"Cheryl has never had physical contact and never would," Schwartz said. "They don't shake hands and they don't hug. Otherwise, it's fairly normal communications. He addresses her and respects her authority, but he doesn't make significant eye contact."

'Guantanamo: Black Out Bay.' Watch the VICE News documentary here.

In a statement, Bormann said the female guard policy is another example of "how the military commissions system is unfair and unjust."

Schwartz doesn't know what to make of the new policy change.

"You want to give these camp commanders the benefit of the doubt," Schwartz said. "Some come in and watch the status quo. But this one seems to have come in and perhaps was excited to interject her opinion of how things should be. She doesn't seem to understand the full impact of her decision."

Follow Jason Leopold on Twitter: @JasonLeopold