The warden of the Guantanamo Bay prison continues to make extraordinary claims about potential threats to the detention facility 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.
Col. John V. Bogdan, the commander of the prison’s Joint Detention Group, said in yet another sworn declaration, this one dated August 2, which the government filed under seal to explain the reasons Bogdan’s June 3 declaration should not be released 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.”
“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 U.S. personnel,” Bogdan’s declaration states.
Bogdan’s August 2 declaration was written in response to my intervention in a lawsuit filed in June by Guantanamo attorneys 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 upon return.
Responding to the Guantanamo attorneys’ complaint, the U.S. Department of Justice submitted under seal in U.S. District Court a sworn declaration signed by Bogdan 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 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, I 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. My motion to intervene, said my attorney Jeffrey who prepared the filing, likely prompted the government to quietly release a redacted version of Bogdan’s declaration on the public record when it sought a temporary stay of Lamberth’s order with the U.S. Court of Appeals for the District of Columbia Circuit a week later, which was granted.
Still, the unsealing of Bogdan’s June 3 declaration didn’t render my motion moot. The government was still obligated to reply to it and did so on August 2 and also released a redacted copy 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 my court filing cited a new sealed declaration signed by Bogdan that was written to justify the secrecy of his original declaration.
I published a news report August 6 about the government’s claims related to the possible threat to the prison by Al Qaeda if it were forced to reveal certain details in Bogdan’s declaration. I also pointed out what appeared to be an important fact that the government overlooked: the information the government argued could be used by terrorists to attack Guantanamo had already been disclosed when it released a version of Bogdan’s June 3 declaration with the appeals court. In much simpler terms, the government ended up releasing two different versions of Bogdan’s June 3 declaration with two different sets of redactions.
Three days after my report was published, the Department of Justice filed another brief in U.S. 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 my motion to intervene because it contained fewer redactions.
But now Light moved on my behalf to have Bogdan’s second declaration unsealed. In an August 16 response to the government’s opposition to unredact 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.”
I 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 in response to the government.
Moreover, “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 me. 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 high-value Guantanamo prisoner that he has 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 [in Bogdan’s declaration] 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.
No one I spoke with who is knowledgeable about Guantanamo operations believes 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.
Lt. Cmdr. Ron Flanders, a spokesman for United States Southern Command (SOUTHCOM), which has oversight over the joint task force that operates Guantanamo, told me "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 his 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 my 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 told me 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 quit the hunger strike it appears the genital policy is no longer being strictly enforced, a claim Guantanamo officials have disputed.