Judge orders mental health exam for waterboarded Guantánamo captive

This Oct. 12, 2000 file photo provided by the U.S. Navy shows damage sustained on the USS Cole after a terrorist bomb exploded during a refueling operation in the port of Aden, Yemen.
This Oct. 12, 2000 file photo provided by the U.S. Navy shows damage sustained on the USS Cole after a terrorist bomb exploded during a refueling operation in the port of Aden, Yemen. US NAVY

The military judge presiding at the USS Cole terror trial on Monday ordered the alleged architect of the warship’s bombing to undergo a mental health exam to determine if he’s fit to face a death-penalty trial.

CIA agents waterboarded Abd al Rahim al Nashiri, 48, 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. Defense lawyers have consistently argued that Nashiri suffers from Post-Traumatic Stress Disorder from his torture.

The prosecution sought, and won, an order from the judge, Army Col. James Pohl, that Nashiri undergo a military mental health exam on his competence.

Nashiri, a self-described former millionaire merchant from Mecca, Saudi Arabia, is awaiting a military trial as accused architect of al-Qaida’s October 2000 suicide bombing of the USS Cole off Yemen. Seventeen sailors died in the attack, and the Pentagon is seeking the death penalty.

It’ll be the judge’s job to craft an order for the so-called 706 examination: Instructing whatever entity is responsible for Nashiri’s health and well-being to assemble a three-doctor panel with access to Top Secret information and the man himself to evaluate his mental health. First, however, defense attorneys persuaded the judge to hear testimony later this week from an expert on torture, Dr. Vincent Iacopino.

Iacopino is an adjunct professor of medicine at the University of Minnesota Medical School and leading member of Physicians for Human Rights, an ethics group. He is also an author of the Istanbul Protocol, which lays out how to conduct a medical examination of someone who’s been tortured.

“Iacopino’s testimony is important because nobody in this process really understands the full impact of what it means to be the victim of torture,” said Rick Kammen, Nashiri’s civilian defense attorney.

Kammen, who has lined up his own medical experts to examine Nashiri, wants Iacopino to advise the judge on how to construct his order for the mental health exam for the least damage to Nashiri. The defense team has mental health experts working with Nashiri as well.

The order for the mental health exam capped a day in which the judge proposed ripping out microphones at the defense tables of alleged al-Qaida terrorists to assure attorney-client privacy.

“Let’s just get rid of them, problem solved,” said Pohl, the chief of the Guantánamo war court judiciary, asking prosecutors to meet technicians overnight on the feasibility of dismantling another feature in the $12 million expeditionary war court that arrived on a barge from the United States in 2007.

By Monday evening, technicians could be seen tinkering with the electronics at the lead defense table where Nashiri sits in the Cole case and Khalid Sheik Mohammed sits in the Sept. 11 conspiracy case, said Navy Lt. Cmdr. Stephen Reyes.

Pohl fashioned the solution after Kammen, who is from Indianapolis, said he had consulted the Indiana Bar Association and got an ethics opinion that he should withdraw from the case because of the possibility of intelligence agencies listening in his privileged conversations at the court and prison camps.

Last week, Pohl ordered the prosecution to disconnect all remote-control mute buttons after a government agent outside the court reached into a 9/11 trial hearing — and muted the microphone of a defense attorney. The lawyer was discussing a defense bid for a preservation order on what’s left of the CIA’s secret prison network where agents waterboarded Nashiri and other secret captives before they were brought to Guantánamo in 2006.

Despite Pohl’s order to the government to disconnect all outside audio kill switches, defense attorneys said they were still concerned that outsiders were listening in on confidential conversations inside the court.

A prosecutor, Anthony Mattivi, then sought to demonstrate that microphones don’t pick up conversation from a distance by stepping away from the attorneys podium and continuing to speak. The demonstration appeared to fail: Mattivi could be plainly heard on remote feeds from the court from Guantánamo to an auditorium at Fort Meade, Md.

Throughout it all, Nashiri sat silently at the defense table in court in what appeared to be the white prison camp attire of a cooperative captive.

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