It’s been more than two years since a war court judge ordered the military to get an MRI scan of the brain of a man awaiting a death-penalty trial at Guantánamo and, the Pentagon said Thursday, the equipment has yet to arrive at the remote U.S. Navy base in southeast Cuba.
The war court bureaucracy “is currently coordinating for its acquisition, planning, movement, and utilization,” said Air Force Major Ben Sakrisson, the Department of Defense spokesman for military commissions issues. “However we expect it to be operational later this year.”
The long-running issue of how to get scans of the brains of men who were held for years in secret CIA prisons — and in some instances had their heads slammed into walls to gain their cooperation in interrogation — is but one of several obstacles to getting the capital terror trials started at Guantánamo.
And the latest wrinkle comes as judges in the three major war court cases have reserved 38 weeks of 2018 for war court hearings at Guantánamo’s lone maximum-security courtroom, some weeks with simultaneous hearings, suggesting intent to accelerate the process.
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But at least two men have orders to have their brains scanned as a pretrial investigation — alleged USS Cole bombing plotter Abd al Rahim al Nashiri of Saudi Arabia and alleged Sept. 11 conspirator Ammar al Baluchi, a Pakistani. In the instance of Nashiri, Air Force Col. Vance Spath ordered the brain scan in April 2015 after his attorneys argued that, if it shows evidence of brain damage, that might spare him military execution if he’s convicted of the 2000 bombing that killed 17 U.S. sailors on a warship off Yemen.
“When the brain damage is caused by the guys trying to kill him, that has a different mitigating aspect,” said Nashiri attorney Rick Kammen on Thursday. Kammen, a seasoned criminal defense attorney, called the lack of delivery of the equipment “ludicrous” but consistent with the challenges of conducting trials at the crude military commissions compound called Camp Justice.
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“It just demonstrates yet again why the case should be tried in the United States,” Kammen said. “If the case would’ve been in the United States, he would’ve had the MRI by July of 2015.”
That was a month after the Navy Bureau of Medicine put out a solicitation to lease portable Magnetic Resonance Imagery equipment for shipment by barge to Guantánamo. The military could not say Thursday whether the contract had yet been awarded.
The Pentagon has had to lease the Magnetic Resonance Image equipment because, although Guantánamo bought a $1.65 million MRI in 2012, the U.S. Southern Command diverted it to the Eisenhower Army Medical Center at Fort Gordon in Augusta, Georgia — to treat troops rather than captives. In addition, Congress prohibits the transfer of Guantánamo detainees to the United States for any reason, including medical treatment.
In the instance of Baluchi, his attorney Jay Connell said he got permission from the Pentagon overseer of the war court in October to conduct an MRI on the accused Sept. 11 attack conspirator to look for evidence of a traumatic brain injury. Baluchi, the nephew of alleged 9/11 plot mastermind Khalid Sheik Mohammed, is one of five men awaiting a capital terror trial for the hijackings that killed nearly 3,000 people on Sept. 11, 2001.
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Connell describes Baluchi as a torture survivor who suffers symptoms suggesting Post-Traumatic Stress Disorder, including anxiety, hyper-vigilance, memory and concentration problems. “It’s difficult for us to parse out what part of that is PTSD and what part of that is closed head injury from the walling. That’s why we’ve asked for an MRI.”
Connell believes his client was a prototype for a character named Ammar who was tortured in the Hollywood movie “Zero Dark Thirty,” and has asked the judge to order the CIA to provide him with all the information it gave the filmmakers.