Guantánamo argument: Does USS Cole defendant have brain damage?

Attorneys argue whether the accused planner of the bombing of the USS Cole should have a pre-trial MRI to check for brain damage.

08/06/2014 5:59 PM

08/11/2014 12:54 PM

Defense and prosecution lawyers sparred Wednesday over whether the accused USS Cole bomber should get an MRI of his brain before his death-penalty trial.

The request presented both a logistical and political challenge to the U.S. military. Congress forbids the transfer of Guantánamo detainees to U.S. soil even for medical emergency. Also, although the prison ordered a $1.65 million magnetic resonance imaging machine nearly two years ago, it never arrived.

Abd al Rahim al Nashiri, 49, is accused of orchestrating al-Qaida’s Oct. 12, 2000 suicide attack on the USS Cole warship off Yemen that killed 17 American sailors. U.S. agents waterboarded him and interrogated him with threats of a power drill and a handgun.

For the defense, Nashiri attorney Rick Kammen argued that his side needed the scan to investigate for “organic brain damage,” as potential mitigation evidence at the war crimes tribunal of the man whom a U.S. military medical panel has diagnosed as suffering Post-Traumatic Stress Disorder.

In addition, a defense team torture expert, internist Dr. Sondra Crosby, testified in April that Nashiri was a victim of “physical, psychological and sexual torture.” She recommended the military conduct the scan to evaluate PTSD-related memory loss and care for him properly.

To do otherwise, Kammen told the judge, Air Force Col. Vance Spath, would be willfully indifferent to his medical needs and would be providing ineffective assistance of counsel.

Interestingly, that very issue has cast a cloud over a death-penalty case the judge handled as an Air Force prosecutor. A military appeals court criticized attorneys for Senior Airman Andrew Witt for not exploring the possibility that Witt suffered traumatic brain injury in a motorcycle crash four months before he brutally murdered a couple at Robins Air Force base in Georgia in 2004. He’s on military Death Row but Spath says he no longer follows the ongoing appeal of his most high profile victor as an Air Force prosecutor.

A case prosecutor, Army Col. Robert Moscati, disputed the need for the brain scan and defended the mental-health treatment Nashiri has receiving at Guantánamo since arriving from four years of CIA secret prison custody in September 2006.

Moscati argued that U.S. military prison doctors don’t think an MRI is “medically indicated,” would not confirm Crosby’s diagnosis of memory loss and wouldn’t put a time frame on any brain damage it may show.

“Mr. Nashiri could've fallen off his bike when he was 3,” said Moscati, the deputy chief Pentagon war crimes prosecutor who in civilian life is a federal prosecutor in Buffalo, N.Y.

Unusually, Nashiri chose not to come to court Wednesday. He has sat through talk about torture and his health care before. But a day earlier, his lawyers asked the judge to order the Pentagon to declare how it would kill him, if he’s convicted and sentenced to death — something that hadn’t come up in court before.

Besides, prosecutors wrote in their brief, there is no MRI at Guantánamo — something Kammen said the Pentagon could solve by sending one on the supply barge or sailing a medical ship to this remote base in southeast Cuba.

The judge did not decide the MRI question. Instead, he told defense attorneys to first ask a senior Pentagon official responsible for war court resources. Meantime, Spath said he would be considering a different motion argued before he got to the case alleging Nashiri was a victim of medical malpractice.

There was no talk of taking Nashiri to an MRI rather than bringing one to him. In 2007, the Bush administration asked four Latin American allies — Costa Rica, Dominican Republic, Mexico and Panama — to take up the slack for Guantánamo’s emergency health care deficiencies, and offered to pay for any detainee medical treatment, but none agreed.

In September 2012, Guantánamo prison’s contracting authority placed a $1.65 million order for a magnetic resonance imaging machine and separate trailer with a Pennsylvania firm.

The prison spokesman, Navy Capt. Tom Gresback, said the military decided to send the MRI “elsewhere into the military medical system.” After the bid was issued and awarded, Gresback said, “further analysis” concluded that “other modalities” could be used to diagnose and treat detainees’ acute medical conditions — for example CT scans and ultrasounds.

Earlier in the day, defense lawyers screened a U.S. military promotional film of a World War II U.S. program that designed disguised, remote-control boats meant to blow up enemy ships — in an argument that said, if the precursor to the CIA, the OSS, didn’t consider that a war crime at the time, the al-Qaida attack on the USS Cole wasn’t one, either.

Judge Spath interjected that al-Qaida didn’t have the same status as U.S. forces under the Geneva Conventions. Defense attorney Air Force Capt. Daphne Jackson countered that the existence of the USS Cole case is leveraged on a claim that the U.S. was at war with al-Qaida, and the defense was arguing that using a ruse to attack in a time of war was not a war crime.

Case prosecutor Justin Sher said the issue was irrelevant because the OSS-Army Air Force program didn’t blow up any enemy ships using remotely controlled boats as missiles, anyway.

Miami Herald reporter Carol Rosenberg tweets @carolrosenberg

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