The alleged mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, and four suspected accomplices have sparked a heated legal dispute within the US military by refusing to be handled by female prison guards at Guantánamo Bay.



The five so-called “high-value” detainees have petitioned the judge presiding over their military commissions, calling for a temporary ban on female guards touching them to be made permanent. The temporary ban has been in place since January. They argue that their Muslim faith forbids any contact between them and women other than their wives and immediate female relatives.

The highest levels of the US military have denounced the legal request as an outrage, accusing the detainees of “manipulation”. Two female guards who have been assigned to the detainees, and who in the normal course of duties would escort them around the prison, have filed complaints that the ban impairs their rights under equal opportunity laws.

General John Kelly, who as head of the US southern command is in charge of Guantánamo, laid into Mohammed and the other detainees at a recent hearing of the US Senate armed services committee. He said: “They manipulate us – they are experts at manipulating us, them and their proponents.”

The general was supported by Kelly Ayotte, the Republican senator from New Hampshire, who said it was “absurd” that the alleged 9/11 attackers were being accommodated.

“In the United States we believe firmly in equality for women,” she said, “so to me it’s absurd that we are even entertaining these challenges.”

The military hierarchy insists that the female guards in contact with the Guantánamo detainees are the product of increased efforts to treat women equally even within frontline roles. But lawyers for the detainees say the whole dispute has been concocted as a way of disrupting the relationship between the prisoners and their legal representatives.

Khalid Sheikh Mohammed is facing trial by a military commission. Photograph: Anonymous/AP

David Nevin, the lead defense counsel for Mohammed, said he found it “extremely strange that for years and years they had only male guards touch the male prisoners, and suddenly now we’re told the presence of female guards absolutely cannot be avoided. It doesn’t add up.”

Nevin said he believed the introduction of the female guards was an attempt to disrupt and dislocate the relationship between the detainees and their lawyers at a critical stage in the military commission process, as the prisoners have refused to attend meetings with their counsel when that involves physical contact with female guards.

The lawyer also suggested it was a ruse on the part of the US military to re-trigger the torture that the five “high-value” detainees had endured early on in their captivity in so-called “black sites” away from any legal protection.

“My client and others were subjected to torture that involved religious degradation, sexual violation and destruction of personality, delivered at least in part at the hands of women,” Nevin said.

“The authorities are now seeking to re-trigger the same psychological conditions that prevailed in the black sites and they are doing this in the middle of complicated legal deliberations – it’s profoundly dislocating.”

In front of the Senate committee, Kelly claimed that there was no religious basis to the prisoners’ objections to female contact.

“Anyone who knows anything about the Muslim religion knows that it’s not so,” he said.

Omid Safi, professor of Asian and Middle Eastern Studies at Duke University, said Kelly’s reading of the Muslim faith was wrong. He said that in traditional Islamic law strict rules govern physical contact between men and women.

Those rules are based on the concept of “mahram” – which forbids marriage between immediate blood relatives and other groups such as foster relations. The female prison guards at Guantánamo are deemed to be “non-mahram”, that is eligible for marriage, and thus it is inappropriate to have any physical contact with them out of wedlock.

“In this case, the opposite-gender prison guards are non-mahram, and thus the prisoners are consistent with traditional understanding of Islamic law when they insist that they not be touched by them,” Safi said.

Paradoxically, the US military is well versed in the importance of religious sensitivity. The armed forces provide personnel with training into how and whether to approach, touch, speak to, or make eye contact with people of the opposite sex.

Male guards in military prisons are not allowed to touch female prisoners, observe them naked or be alone with them.