At the Sept. 21 hearing in the last pretrial session before jury selection in the USS Cole bombing case, we learned of a few developments that could derail or delay it.
Starting with, the judge has ordered a competency exam, called a 706 Sanity Board, for the defendant, Abd al-Rahim al-Nashiri. The judge ordered a military medical panel that includes an Army psychiatrist to evaluate the prisoner and report back by Oct. 16, the day before the court travels to Guantanamo for panel selection, which is scheduled to begin on Oct. 19.
Defense lawyers brought a forensic psychiatrist, Dr. Terry Kupers, to Guantanamo last month to evaluate al-Nashiri, who has been in U.S. custody since 2002, with the first four years spent in solitary confinement in CIA prisons. The previous judge in the case found al-Nashiri’s torture and abuse disqualified the use of his confessions to federal agents.
His lawyers have now gone further, arguing he is not competent to stand trial based on the expert opinion of Dr. Kupers, a civilian who spent eight hours with al-Nashiri in August and reviewed earlier medical reports. Dr. Kupers concluded that the prisoner has a traumatic brain injury, neurocognitive disorder, post-traumatic stress disorder (PTSD), and a major depressive disorder. Those last two findings were consistent with the conclusion of a military medical board that examined al-Nashiri by court order in 2013. Al-Nashiri’s attorneys have now filed an opinion by Dr. Kupers concluding that Nashiri “lacks capacity to stand trial because he is unable to understand the nature of the proceedings or to conduct or cooperate intelligently in the defense of the case.”
On Sept. 16 the judge, Army Col. Matthew Fitzgerald, disagreed in a ruling that cited “the weight of the evidence reflecting on the accused’s capacity, which spans a period of decades, indicates that he possesses the capacity to stand trial.” In the same ruling, however, he ordered “out of an abundance of caution” that a doctor conduct an inquiry on al-Nashiri’s capacity to stand trial.
Defense lawyers had asked the judge to suspend proceedings based on Dr. Kupers’ report, which has not been made public. The judge denied the request, adding in his Aug. 26 order that he “personally interacts” with al-Nashiri during hearings, and has discussed “specific legal concepts, and has not had difficulty communicating with him.”
The most common interaction between the judge and the defendant occurs on the first day of each session when the judge recites a script advising the prisoner of his right to voluntarily waive attendance, and asks if he understands. “Yes,” al-Nashiri responds in Arabic, one or more times. The judge has also asked the defendant if he has agreed to permit a member of his defense team to leave the case, or be absent for a session.
Allison Miller, the lead capital defender, said she has been concerned about al-Nashiri’s mental capacity since she joined the case in 2024, but was only able to arrange for Dr. Kupers to meet with the prisoner last month. She reminded the judge that, in December, al-Nashiri waived attendance at a court hearing by signing a document a prison lawyer brought him, which identified him as Khalid Shaikh Mohammed, the lead defendant in the 9/11 case. Once the error was discovered, the prison lawyer got a new form, with al-Nashiri’s name attached, and he compliantly signed that one as well.
The new lead prosecutor, Clayton Trivett Jr., opposed delaying the proceedings until the sanity board submitted its findings. If the medical panel evaluating al-Nashiri finds him not competent, Trivett said, the court can then decide whether to have a hearing. Trivett said Dr. Kupers drew his conclusion from his first ever meetings with al-Nashiri last month.
“After 13 years of pretrial litigation,” he said, halting the proceedings with a stay “simply isn’t warranted.” Trivett said the senior medical officer at the prison has disputed Dr. Kupers’ conclusions, and characterized them as at odds with al-Nashiri’s prison medical records of the past two years.
These are the kinds of issues that could go to the U.S. Court of Military Commission Review on appeal. This higher court could theoretically issue a stay. But first the judge has to decide the request for reconsideration.
The judge’s order asked the sanity board to answer five questions, including:
–Is al-Nashiri “presently suffering from a mental disease or defect?”
–Does “any mental disease or defect render the accused presently unable to understand the nature of the proceedings against him or to conduct or cooperate intelligently in his defense?”
Defense lawyers on Sept. 21 also raised a second issue that could throw off the trial’s timetable. Casey Secor, who is new to the case as capital defense lawyer, argued for more comprehensive neuroimaging of al-Nashiri, including some tests that cannot be carried out with the equipment currently at Guantanamo.
At issue is whether or how much brain damage al-Nashiri suffered while in CIA custody, a period when he was waterboarded and confined to a claustrophobic box, among other “enhanced interrogation techniques.” Secor said the defense team’s expert needs more detailed studies to determine whether there’s sufficient brain damage that could disqualify the government from seeking a death penalty in the case.
Prosecutor John Wells responded that three standard MRIs undertaken at Guantanamo on al-Nashiri’s brain meet the definition of a “reasonable and thorough examination,” which is what the law requires.
Judge Fitzgerald instructed Wells to find out from the Navy base’s hospital which tests sought by al-Nashiri’s expert could be conducted at Guantanamo, if additional software is provided, and which would require new hardware. Left unsaid was whether the Pentagon could get new hardware to the hospital on base before trial is set to start.
