Lawyers and the judge in the USS Cole case debated Monday whether it would be proper for military jurors to know that the CIA kept tabs on the mental-health care of a captive here, a decade after his torture in a Black Site.
The discussion was hypothetical. Defense lawyers want to know with whom the prison has been sharing the Guantánamo mental health care files of Abd al Rahim al Nashiri, 52. He is awaiting a capital tribunal as the alleged orchestrator of al-Qaida’s Oct. 12, 2000 suicide bombing of the warship. Seventeen U.S. sailors died in the attack off Aden, Yemen.
A case prosecutor, Army Col. John B. Wells, said there are plenty of legitimate reasons to share his mental health records with intelligence services. Any encounter with a high-value detainee at Guantánamo is “potentially a container for classified information,” Wells told the judge. “All intelligence apparatus of the U.S. government take a look at what a high-value detainee is doing during detention.”
One of Nashiri’s attorneys, Mary Spears, quoted a yet-to-be released filing by the prosecution as citing two possible reasons: “Force protection and therapeutic analysis.” Defense lawyers argue that although he’s a prisoner, his psychiatric records are protected. If the CIA is reading his mental health files, she said, both his lawyers and his future jury need to know it, and why.
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Wells, who is responsible for getting the prison to provide Nashiri’s lawyers with his health records, called the defense supposition a “far-flung flight of imagination,” and suggested that the prison’s intelligence unit, the J-2, was studying his psychiatric records.
Either way, the judge, Air Force Col. Vance Spath, asked whether it would be wrong for U.S. agencies to look at Nashiri’s torture to see what they could do better in the future. He also asked whether the defense attorneys should be allowed to know about it, in case Nashiri is convicted.
“If you accept the assertion that there was torture and you accept the assertion that that information was provided to the people who did it,” he said, “is that an area or an avenue the defense should be able to investigate to assist in developing a mitigation case?”
A declassified portion of the so-called Senate Torture Report on the CIA’s Rendition, Detention and Interrogation program says the Saudi was waterboarded and rectally abused during his 2002-2006 spy agency captivity. He was alternately kenneled like a dog in a cage and hung nude by his arms to the point where a medical officer worried his arms would be dislocated. CIA agents also threatened to rape his mother and held a cocked pistol to his head among other “enhanced interrogation techniques” to break him after his capture in the United Arab Emirates in November 2002.
Spears said, if Nashiri is convicted, military jurors ought to be told if the CIA was using “the fruits of its enhanced interrogation techniques, and for what purpose.”
Lead defense counsel Rick Kammen said earlier that the trial, which is unlikely to start this year, will be about torture, its effects and, if he’s convicted of the warship bombing, how military jurors “feel about killing somebody who their government tortured.”
Monday was the start of a two-week pretrial hearing being observed by five or six crew members who were aboard the ship during the attack. The judge has reserved next week for a hearing on what physical evidence will be eligible for use at trial. Items include some sailors’ uniforms, items from the Cole and pieces of the skiff two suicide bombers exploded alongside it during a fueling stop off Aden.
A panel of U.S. military medical experts concluded in 2013 that Nashiri suffered from posttraumatic stress disorder and depression. Defense lawyers have criticized Nashiri’s healthcare at the secret Camp 7 prison for former CIA captives and hired Dr. Sondra Crosby, an expert on treating torture victims, as a consultant.