Republican Senators: Guantanamo Bay Prisoners Not Entitled To Religious Freedom

Republican U.S. Sens. Kelly Ayotte (NH), Shelley Moore Capito (WV), and Tim Scott (SC) allege unwarranted discrimination against female guards at Guantanamo Bay. CREDIT: P PHOTO/JIM COLE
Republican U.S. Sens. Kelly Ayotte (NH), Shelley Moore Capito (WV), and Tim Scott (SC) allege unwarranted discrimination against female guards at Guantanamo Bay. CREDIT: P PHOTO/JIM COLE

Are the accused terrorists at Guantanamo Bay entitled to religious freedom? What if that freedom means the right to discriminate against women?

These are questions a military judge in Maryland will be forced to reckon with on Friday, as he hears testimony about the detention center’s policy on female guards. Under that policy, women guards at Gitmo are barred from certain jobs that require touching detainees. The policy was triggered by a military judge last year, after a Muslim detainee complained that his faith prohibits him from having physical contact with women.

“As the women guards at Guantanamo told us, they just want to do their jobs.”

Since that ruling, however, at least two female guards have filed discrimination complaints against the judges. And on Tuesday, returning from a trip to the prison, three Republican senators said the accused terrorists were “manipulating” the U.S. legal system to hurt women guards.

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“As the women guards at Guantanamo told us, they just want to do their jobs,” Sen. Kelly Ayotte (R-NH) said, “and they can’t believe that we are allowing terrorists who murdered almost 3,000 people to dictate how U.S. service members do their jobs — simply because they are women.”

In general, Muslim faith dictates that men should not make physical contact with members of the opposite sex, unless they are related or married. But in Gitmo, the issue is complicated. Prisoners have to be escorted by a guard when they are transported to places like medical appointments and legal meetings, and that requires touching.

So far, at least six prisoners — including the “9/11 five” — have gained temporary restraining orders to prevent female guards from touching them.

But the restraining orders are only temporary. And now, a military judge is considering whether or not to keep it them in place.

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The legal arguments for allowing the restrictions on female guards are controversial. Two separate courts have found that Gitmo detainees are not considered “persons” under the Religious Freedom and Restoration Act — but, their attorneys argue, the Supreme Court’s Hobby Lobby decision last year changed that. Under that decision, the Supreme Court held that for-profit corporations can be exempt from a law its owners religiously object to. Ayotte herself has vigorously defended the Hobby Lobby decision, saying it was essential to protect the company’s religious freedom.

But if Christian corporations can use religious freedom to exempt themselves from laws, Guantanamo detainees attorneys argue, then why can’t Muslim prisoners?

“I have been trying to figure out why corporations are worthy of court protection and Muslims held in indefinite detention … are not.”

“I have been trying to figure out why corporations are worthy of court protection and Muslims held in indefinite detention without trial by the United States at a naval base in Cuba are not,” wrote attorney Eric L. Lewis, who has represented some Guantanamo detainees, in a 2014 New York Times op-ed. The answer, Lewis accused, lies in a legal system with biases in favor of Christians and against Muslims.

But senators who objected to the female guard court order on Tuesday said that these arguments were disingenuous. “These terrorists — truly the worst of the worst — are manipulating our legal system to the detriment of our dedicated women guards,” said Sen. Tim Scott (R-SC).

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In court, attorneys for the women guards have argued that the restrictions on what they can and can not do within Guantanamo Bay are preventing them from advancing in their careers, and hurting morale. Commanders implied that male guards had more opportunities to make moves within in facility, and therefore more opportunities to earn accolades and awards.

“These women deserve better and should not be prevented from fully performing their duties simply because of a capitulation to the demands of terrorists,” said Sen. Shelley Moore Capito (R-WV).

Female guards at the prison have recently been accused of using sexual interrogation tactics against detainees.

At the same time, female guards at the prison have recently been accused of using sexual interrogation tactics against detainees. Mohamedou Ould Slahi, who has not been charged with a crime but has been held at Guantanamo since 2001 for training at an al Qaeda camp, alleged in his recently-published “Guantanamo Diary” that two female guards forced him to have sex with them, and degraded him as he tried to pray during the assault.

Allegations like this go back to 2005, when a translator who worked at Guantanamo accused guards of stripping “down to their underwear and rubb[ing] themselves against their prisoners.” The translator also accused female guards of rubbing fake blood on prisoners and telling them it was menstruation.

However, allegations of shocking interrogation techniques at Guantanamo are in no way exclusive to female guards. A 2014 report from the Senate Intelligence Committee found that guards frequently used “enhanced interrogation techniques” like chaining detainees to bars above their heads and forcing them to wear diapers; forcing them into coffin-sized confinement boxes; waterboarding; and “rectal feeding.” The report found that these techniques never once lead to the collection of “imminent threat intelligence.”