Los Angeles, United States of America – The warden of the Guantanamo Bay prison continues to claim the detention facility may face threats from enemies foreign and domestic if he is compelled to reveal information in a June 3 sworn declaration he signed about the rationale behind a genital search policy prisoners are subjected to.
Colonel John V Bogdan said the declaration must not be revealed in full, that certain information about the prison’s operations must remain secret – otherwise “our enemies” could create a “blueprint” of Guantanamo’s “security operations” and “plan an attack”. This statement was made in an August 2 declaration, which was also filed under government seal.
“Unrestricted dissemination of the information protected here, which is designated as sensitive but unclassified, would present risks to operational security and force protection in current detention operations, or if combined with other information, could create risks to national security or endanger US personnel,” states Bogdan’s August declaration – which you can read above this report.
Bogdan’s August 2 declaration was written in response to Al Jazeera’s intervention in a lawsuit filed in June by attorneys of Guantanamo detainees, who challenged the legality of the genital searches, which prisoners were subjected to whenever they left their cells to meet or speak by telephone with their attorneys – and again upon their return.
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Responding to the complaint, the US Department of Justice submitted – under seal in US District Court – a sworn declaration signed by Bogdan, the commander of the prison’s Joint Detention Group, explaining why the policy was necessary. But federal Judge Royce Lamberth found the procedure to be “religiously and culturally abhorrent” and banned it, stating in a scathing 30-page order dated July 11 that it was a policy enacted to deter prisoners from meeting with their lawyers during the height of a mass hunger strike.
A few days after Lamberth issued his decision, Al Jazeera intervened in the case for the sole purpose of unsealing Bogdan’s sworn declaration, on grounds that the public has a right of access to judicial records. According to Jeffrey Light, the attorney who prepared the filing, the motion to intervene likely prompted the government to quietly release a redacted version of Bogdan’s declaration on the public record when it successfully sought a temporary stay of Lamberth’s order a week later, allowing the searches to continue.
Still, the unsealing of Bogdan’s June 3 declaration didn’t render the motion moot. The government was still obligated to reply – and did so on August 2. It also released a redacted copy of Bogdan’s June 3 statement. The government explained in its own redacted brief that it could not release a complete, unredacted copy of Bogdan’s declaration because some of the information in the warden’s declaration was so secret that if it were publicly disclosed it could be used by Al-Qaeda to launch an attack on the heavily guarded compound. The government’s response to Al Jazeera’s court filing cited a new sealed declaration signed by Bogdan on August 2 that was written to justify the secrecy of his original declaration.
Al Jazeera subsequently published a report detailing the government’s response. The report also pointed out what appeared to be an important fact that the government had overlooked: the information that the government argued could be used by terrorists to attack Guantanamo had already been disclosed when it lodged a public version of Bogdan’s June 3 declaration with the appeals court. Put another way – the government ended up releasing two different versions of Bogdan’s June 3 declaration with two different sets of redactions.
Three days after Al Jazeera’s report was published, the Department of Justice filed another brief in US District Court acknowledging that it had made an error in its previous filing and that it had already released an earlier version of Bogdan’s declaration. The government’s August 9 brief said it was submitting the earlier version of Bogdan’s declaration filed with the appeals court to replace the newer version it had released in response to this reporter’s motion to intervene because it contained fewer redactions.
Removing the black-out
Attorney Jeffrey Light moved on Al Jazeera’s behalf to have Bogdan’s second declaration unsealed. In an August 16 response to the government’s opposition to un-redact blacked-out portions of Bogdan’s June 3 declaration, Light argued : “It is puzzling, to say the least, how revealing the details of the procedure for searching detainees’ groins would in any way enable Al-Qaeda to successfully free the detainees at the heavily fortified military detention facility at Guantanamo.”
Al Jazeera had already reported that Judge Lamberth described the genital search procedure in detail in his July 11 order.
“The government cannot possibly mean what it seems to be suggesting – that it believes there is a substantial probability that ‘our enemies’ could successfully ‘attack the detention facilities at Guantanamo’ if only they knew that guards use their ‘hand as a wedge between the [detainee’s] scrotum and thigh,'” Light wrote.
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“While the government raises exaggerated and hysterical concerns with respect to the June 3, 2013, Bogdan declaration, it can muster no more than a single conclusory sentence in a footnote in support of its request to maintain the August 2, 2013, Bogdan declaration under seal.
“The government contends that the August 2, 2013, Bogdan declaration cannot be made public because it ‘discusses in detail the nature of the threat posed by disclosure of the original declaration’,” Light added. “However, the government then goes on to describe in its brief in great detail the contents of the August 2, 2013, Bogdan declaration which it supposedly cannot disclose.”
Last week, without any further argument, the government unsealed Bogdan’s August 2 declaration and turned the document over to Al Jazeera. Aside from fears he raised about al-Qaeda using information about genital searches to attack the prison, Bogdan, who earlier this year testified in the military commissions hearing of a Guantanamo prisoner that he had no prior experience operating a prison, said “information about detainee movements”, particularly in vans, “would be useful to an enemy for identification and targeting purposes”.
“Revealing this [and other] information to the public would provide detainees, visitors, and our enemies information which – on its own or combined with other information – would, at the very least, allow them to manipulate or undermine operational security and threaten the security of the guards, detainees, and visitors,” he wrote.
None of the people who are knowledgeable about Guantanamo operations that Al Jazeera has spoken with for this report believe the prison facility is or ever will be vulnerable to attack. These individuals, however, did not want to be seen as undermining Bogdan’s authority and declined to discuss the issue on the record.
Lieutenant Commander Ron Flanders, a spokesman for United States Southern Command (SOUTHCOM), which has oversight over the joint task force that operates Guantanamo, told Al Jazeera “although Guantanamo is indeed in a very remote locale, it is standard military practice to prepare for any number of contingencies”.
Regardless, with the release of two different versions of Bogdan’s June 3 declaration, there are only a few sentences in the document that remain redacted. The details he sought to keep secret have already been revealed by the government in response to this reporter’s intervention in the genital search lawsuit.
Legal challenge continues
Meanwhile, Guantanamo attorneys continue to challenge the legality of genital searches. Attorneys representing prisoners in the lawsuit said arguments in the case are not expected to begin until next year.
However, according to statements prisoners have made to their lawyers in recent weeks, now that more than half the prisoners have ended their hunger strike, it appears the genital search policy is no longer being strictly enforced – a claim Guantanamo officials have disputed.
Follow Jason Leopold on Twitter: @JasonLeopold