A military judge has ordered the Pentagon to conduct a brain scan on a Saudi captive accused of orchestrating al-Qaida’s USS Cole bombing — something currently impossible because a $1.65 million mobile MRI meant for the war-on-terror captives went to Georgia instead of Guantánamo.
Separately, the judge on Friday froze all war court proceedings in the death-penalty case against alleged terrorist Abd al Rahim al Nashiri until resolution of two prosecution appeals.
Attorneys who read the four-page brain-scan ruling said Air Force Col. Vance Spath, the judge, specifically ordered an examination using magnetic resonance imaging (MRI). The order was still under seal while intelligence agencies decide which portions the public can read.
Spath set no deadline for the scan, the latest obstacle to preparation of the death-penalty trial of Nashiri, 50, accused of orchestrating al-Qaida’s suicide bombing of the Navy destroyer off Yemen that killed 17 U.S. sailors Oct. 12, 2000. His lawyers suspect he suffered brain damage during his four years in secret CIA prisons where he was subjected to waterboarding, a mock execution and rectal rehydration, among other techniques, to get him to cooperate with his captors
Premium content for only $0.99
For the most comprehensive local coverage, subscribe today.
The judge had earlier rejected a defense request for a brain scan, saying Nashiri’s lawyers hadn’t demonstrated that Guantánamo doctors were committing medical malpractice by denying him one. In this instance, however, he ordered it as trial preparation for forensic reasons.
Proving brain damage could spare Nashiri military execution, if he’s convicted, according his lawyers.
Lawyers want the judge to exclude at trial Nashiri’s 2006 FBI interrogations as the illegitimate statements of a brain-damaged torture victim. So-called FBI “clean teams” used rapport building after Nashiri’s time in secret CIA detention ostensibly to obtain voluntary confessions untainted by abuse.
The Pentagon spokesman responsible for Guantánamo prison and war court policy, Army Lt. Col. Myles B. Caggins III, had no comment Friday on the MRI ruling.
Prosecutors opposing the test argued in court last year that part of the problem was no MRI equipment existed at the remote U.S. Navy base of about 6,000 troops and civilians — more than a third of them assigned to the prison.
Congress forbids the transfer of Guantánamo captives to the United States, even for medical care.
That was why in 2012 the prison purchased an MRI for delivery by Jan. 28, 2013 for the treatment of the aging prisoner population which now numbers 122 captives, aged 28 to 67. The U.S. Southern Command, however, stopped the shipment, warehoused the machine for a year then diverted it to the Dwight D. Eisenhower Army Medical Center at Fort Gordon in Augusta, Georgia — to treat troops rather than captives.
A spokesman for Southcom, the Pentagon subsidiary for Latin America and the Caribbean, earlier said that after one medical team thought it was wise to have an MRI, Navy doctors who replaced them rejected it as unnecessary.
At the prison camps Thursday, spokesman Navy Capt. Tom Gresback said the current prison medical staff didn't want or need an MRI.
Nashiri’s attorney, Rick Kammen, said that until Friday the soonest Nashiri would get his trial would be in about 18 months. Now, with the two decisions, he said, it’s not possible to predict.
Were the Pentagon to renew an earlier secret Bush administraton-era effort to move the Guantánamo captive to another country’s medical facility for the MRI, Kammen said, that could raise questions that delay it even longer. “How’s he going to be transported? Are we going to inflict additional psychological damage transporting him?”
In addition, both Kammen and fellow defense attorney Navy Cmdr. Brian Mizer, said that even if an MRI didn’t detect brain damage, the issue could still hang over the trial.
“As his lawyer, we don't know what it will show,” said Mizer. “Neuro-psychiatrists I have worked with in the past have informed me the brain can heal wounds like many other parts of the body. But it also may reveal organic brain damage or scarring as a result of repeated, violent head trauma.”
Nashiri's lawyers say the brain damage argument likely resonates with the judge. As a military prosecutor, Spath won a death-penalty conviction of an airman who brutally killed an Air Force couple. The conviction is being appealed, in part, on grounds the killer was in a motorcycle accident not long before the murders and suffered brain damage that may have dramatically changed his personality.
In a separate order Friday, also still under seal at the war court website, Spath abated all Nashiri hearings while two prosecution appeals are pending before Washington, D.C.-based courts.
One seeks to restore charges blaming Nashiri for al-Qaida’s attack on the oil tanker Limburg in 2002 that killed a Bulgarian crew member aboard the French tanker carrying Iranian oil to Malaysia. The other seeks to grant Yemeni dockworkers, who were near the USS Cole blast, victim status at the Guantánamo war court. Spath had excluded both.
Spath’s abatement order canceled next month’s hearings, the second to be canceled in a row, and put August hearings in doubt.
He said the ongoing appeals “extend to all the capital charges, thereby creating a myriad of issues and an untenable situation for moving forward,” according to a portion read to the Miami Herald.
The delay — in the same week a federal jury convicted the Boston Marathon bomber two years after the attack — provided commentators fresh fodder to remark on the snail’s pace of proceedings by military commissions, the war court created by Congress after the Sept. 11 attacks. Nashiri was first charged in 2011, nine years after his capture in Dubai.
“While not all speedy trials are fair trials, the problems at Guantánamo have surpassed Kafkaesque levels,” Human Rights Watch’s Laura Pitter said in a blog item, “Boston bombing trial highlights Guantánamo dysfunction.”
She urged the White House to “throw in the towel” and “move the few cases that remain there to federal court” — something currently blocked by Congress along with Nashiri undergoing an MRI on U.S. soil.
▪ In other Guantánamo news, the Pentagon announced the appointment of the next prison camps commander — Rear Adm. Fernandez “Frank” Ponds.
He is the 15th general or admiral to hold the post. He’s familiar with the neighborhood, according to his Navy biography, from a 2008 humanitarian assistance tour aboard the USS Kearsarge that took him to Haiti, the Dominican Republic and elsewhere in Latin America.
Follow @CarolRosenberg on Twitter
Guantánamo prison statement:
“The ruling is not yet publicly available due to a requirement from the Military Commissions Act and implementing regulations that all court papers undergo a security review before posting to the Commissions website. We thus have no comment at this time.”
▪ Navy Capt. Tom Gresback, prison spokesman
Why the MRI went to Georgia not Guantánamo:
“The decision was made based on analysis that determined other modalities on GTMO could be used to assist with diagnosis and treatment of detainee’s acute medical conditions to include CT scan and ultrasound without jeopardizing the care of the patient population.”
▪ Army Col. Lisa Garcia, Southern Command spokeswoman