A federal court judge on Thursday - in response to a motion Al Jazeera filed in July - unsealed Guantanamo warden Col. John Bogdan's six-page sworn declaration pertaining to a genital search policy he implemented at the height of a hunger strike in April.
Bogdan, the commander of the prison's Joint Detention Group, and Justice Department lawyers had argued that portions of his declaration should remain secret because it contained “operational security” and “force protection” details that could be used by Al Qaeda to attack Guantanamo and free the prisoners detained there.
But US District Court Judge Royce Lamberth rejected the government's arguments.
Two weeks ago, over the government's objections, he agreed with Al Jazeera's transparency arguments and ordered Bogdan's June 3 declaration to be unsealed and placed onto the public record. Lamberth gave the government two weeks to appeal his decision, which elapsed Wednesday.
"The government's proffered rationales for protection fail because they rely solely on 'spare [and] generic assertions' of the need to protect information regarding operational-security and force-protection measures," Lamberth wrote in a 20-page opinion. “Before the court will deem nonclassified information protected, 'the government must give the court a basis for withholding [the information] from public view. The government has failed to do so here."
So what are the secrets Bogdan maintained would pose a threat to national security and better enable our enemies, foreign and domestic, to attack the facility if made public? The prison utilizes “full-sized Ford Econoline 350 Cargo Vans” that include “windowless panels in the rear areas where detainees are seated.” The vans are used to transport prisoners to meetings and phone calls with their attorneys. [The previously redacted portions of Bogdan's declaration are highlighted in yellow in the document posted above.]
Another security measure, partially based on Army training publications pertaining to the internment of prisoners, which was also previously redacted, that Bogdan argued may be useful to Al-Qaeda:
The guard will gather and crush the fabric of the detainee's pant pockets to check for any objects in the pocket. The guard will touch the fabric on the outside of the detainee's waistband, shake it vigorously to dislodge potential contraband, but will not touch the inside of it. If a guard suspects that the detainee has contraband in his waistband, the guard will instruct the detainee to roll down his waistband so the guard can conduct a visual inspection. Specifically, with regard to groin area frisks, at no time is the detainee's actual groin exposed to the staff. The search is conducted by placing the guard's hand as a wedge between the scrotum and thigh, and using the flat hand to press against the groin to detect anything foreign attached to the body. A flat hand is used to ensure no contraband is hidden between the buttocks. Army standards require that a guard staff pay “close attention to anything that may be attached to the body, especially the groin area. (STP 19-31EM-SM (paragraph (4)(f)(4)(c)).
Policy linked to hunger strike?
Bogdan enacted the genital searches at the height of a mass hunger strike in April claiming it was necessary to stave off the flow of “contraband” in and out of the prison cells. In his declaration he said guards recovered “homemade weapons, such as shank, and prohibited electronic devices” in the aftermath of an early morning raid in April that resulted in hunger striking prisoners being placed into solitary confinement.
In late May, a group of Guantanamo attorneys sued the government, arguing that the genital search policy had the effect of blocking prisoners' access to counsel. Rather than submit to the searches, numerous prisoners declined to meet with their lawyers. Previously, genital searches of prisoners were off limits due to cultural sensitivities.
But that changed, Bogdan wrote in his declaration, following the death in September 2012 of Yemeni prisoner Adnan Farhan Abdul Latif. Prison officials claimed Latif hid antipsychotic medication—possibly in his genital area—until he collected enough for a lethal dose. However, according to documents Al Jazeera obtained in June under the Freedom of Information Act (FOIA), it was a widespread breakdown of safeguards and leadership failures at Guantanamo that contributed to Latif's death.
Responding to Guantanamo attorneys' complaint, government lawyers submitted - under seal in federal court – Bogdan's sworn declaration explaining why the policy was necessary. But US District Court Judge Royce Lamberth ruled in favor of the Guantanamo attorneys and found the genital procedure to be "religiously and culturally abhorrent." He banned it, stating in a scathing 30-page order dated July 11 that the policy was implemented to deter prisoners from meeting with their lawyers. Lamberth also noted in his opinion that the "government is a recidivist when it comes to denying counsel access" to the prisoners.
'Motion to intervene'
A few days after Lamberth issued his decision Al Jazeera intervened in the genital search case for the sole purpose of unsealing Bogdan's sworn declaration. Jeffrey Light, the Washington, D.C. attorney who prepared the motion, argued that the public has a right of access to judicial records.
The case then took a strange turn.
The government obtained a temporary stay of Lamberth's decision and filed a redacted version of Bogdan's declaration with a federal appeals court. A couple of weeks later, the government responded to Al Jazeera's motion and filed another version of Bogdan's declaration on the public record, with a different set of redactions. The government noted the gaffe in a court document and re-filed the version of Bogdan's declaration it had originally filed with the appeals court. The government, in response to Al Jazeera's motion, also filed under seal another sworn declaration written by Bogdan used to explain why his original declaration could not and should not be released in its entirety.
The government's main argument for continuing to conceal details in Bogdan's declaration rested on a belief that revealing the information would pose a threat to national security and could be used by Al-Qaeda to stage an attack on the heavily guarded naval base. While Bogdan's declaration was deemed "unclassified," the government argued that the "operational" and "force protection" details in it were "protected."
Light successfully argued to unseal Bogdan's second sworn declaration, dated August 2. In his statement, Bogdan said the details about the Ford cargo vans, if revealed, "would be useful to an enemy for identification and targeting purposes” and would enable our enemies to create a “blueprint” of Joint Task Force-Guantanamo “security operations.”
Along with Bogdan's declaration, the US District Court for the District of Columbia on Thursday unsealed an August 12 motion Guantanamo attorneys filed in support of Al Jazeera's motion as well as other government briefs in the case that were submitted to the court.
The attorneys were harshly critical of Bogdan's rationale for keeping secret details related to his genital search policy.
“Colonel Bogdan's August 2 declaration makes arguments that are so utterly preposterous as to demand disclosure,” the Guantanamo attorneys' motion states, referring to Bogdan's second declaration.
“For an invading al Qaeda force to reach the prison it would first have to get to the base, which is thousands of miles from any known al Qaeda base. Perhaps Colonel Bogdan thinks that al Qaeda has an ocean-going navy, or perhaps he thinks it might book passage on the one-day-a-week commercial flight to the base, or perhaps arrive by spaceship.”
Other details contained in Bogdan's June 3 declaration that the government previously redacted:
The search includes a full body frisk in accordance with [Army training policies pertaining to internments], including ... the groin area between the detainee's waist and mid-thigh, and a full body wand search to ensure the detainees do not possess contraband.
The wand search is conducted using a hand-held “wand” metal detector which is passed over the body, to include the groin and buttocks area. Guards are to be careful not to touch the detainee's body with the wand. The wand is held one to inches from the detainee's body.
[Detainees are restrained] using a 5-point fabric seatbelt harness. Detainees are not restrained to any restraint points on the floor of the van as there are no restraint points on the floor.
David Remes, a Guantanamo attorney who was part of the group that sued the government over the genital search policy, told me the government's attempts to conceal Bogdan's declaration underscores how “increasingly desperate” it has become “in its defense of detention practices” at the prison.
“Their desperation reached new heights in defending Col. Bogdan's actions,” Remes said.