MIAMI — The military judge presiding over the Sept. 11 war crimes proceedings at Guantanamo Bay said in a ruling this week that he will eventually lift his order prohibiting female guards from having physical contact with the five defendants while transporting them around the U.S. base in Cuba.
But Army Col. James Pohl also said he would keep the ban in place for six more months, according to the order, which was disclosed to The Associated Press on Friday. That is because of what he calls "inappropriate" public criticism of his ban by Defense Secretary Ash Carter and Marine Corps Gen. Joseph Dunford, chairman of the Joint Chiefs of Staff, during an October appearance before Congress.
Pohl said in his 39-page ruling that the "disparaging" comments by Carter and Dunford could be viewed as creating the appearance that they were trying to influence the death penalty military commission for the five men accused of planning and aiding the Sept. 11, 2001, terrorist attack.
"These comments were entirely inappropriate," the judge said. "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."
Carter called the ban on women having contact with the defendants an "outrage" and "counter to the way we treat service members" in testimony to the Senate Armed Services Committee. Dunford called the ban "outrageous."
Pohl said in his ruling that the extension of the ban by six months was meant to deter such comments and he would consider ending it earlier if the senior officials took "appropriate action." The court "does not take this action lightly," he said.
The judge's ruling was issued Thursday but has not yet been released. Defense attorneys disclosed its contents to the AP. A Pentagon spokesman, Navy Cmdr. Gary Ross, declined to discuss the order, saying that "it would be inappropriate to comment on a document not released to the public."
Lawyers for the prisoners said that contact with women unrelated to the defendants offends their strict Muslim beliefs. The judge acknowledged those beliefs, but said the military had a superseding interest in being able to run gender-neutral guard operations and to ensure adequate staffing at the prison. He imposed the ban as an interim order in January 2015.
The ruling applies only to the defendants in the Sept. 11 case. They are held in a top-secret section of Guantanamo known as Camp 7 and are moved throughout the prison by special escort teams. Most of the 75 other detainees are held in less restrictive conditions and have little physical interaction with guards.
Lawyers for the Sept. 11 defendants had argued that the issue was about more than religion. They said in a hearing at Guantanamo that the use of female guards to move them is traumatic for men who were subjected to extreme treatment, at times of a sexualized nature, that amounted to torture while in CIA custody.
Walter Ruiz, the lawyer for defendant Mustafa al-Hawsawi, said he was disappointed the judge intends to reverse his earlier decision. He said some defendants will refuse to meet with attorneys or attend court sessions to avoid contact with unrelated females.
"This issue is not about women; this issue is about legitimate religious and cultural sensitivities," he said.
The five defendants face charges that include nearly 3,000 counts of murder in violation of the law of war and terrorism. The dispute over the use of female guards is one of many issues that have delayed the case. Pretrial hearings are expected to resume next month.