In quick succession Friday, an Army psychiatrist found the defendant in the USS Cole case at Guantanamo Bay competent to stand trial, the military judge overseeing the trial said he would hear from mental experts next week who disagree with the finding – and a federal judge declined to involve himself in the case.
The series of developments appeared to keep on track the start of jury selection for the death penalty trial of Saudi prisoner Abd al-Rahim al-Nashiri for Oct. 26 at Guantanamo. Al-Nashiri, a Saudi citizen who has been in U.S. custody since 2002, is accused of a key role in al-Qaeda’s Oct. 12, 2000 bombing of a U.S. Navy warship off Aden, Yemen. Seventeen U.S. sailors were killed and dozens of others were wounded.
His is to be the first capital trial by military commission at Guantanamo Bay. His lawyer, Allison Miller, had sought a federal court order to stop jury selection until she had been able to more robustly challenge the prisoner’s capacity to understand the proceedings and assist in his own defense. Al-Nashiri was tortured during four years in CIA custody and Miller, who has been on the case for two years, recently obtained expert opinions that he is not mentally fit to stand trial.
But U.S. District Court Judge Royce Lamberth, in a quick one-hour hearing in Washington, D.C. on Friday afternoon, rejected the defense team’s request. By law, he ruled from the bench, the military commission trial must go first. The federal court is where al-Nashiri has had a long-standing habeas corpus petition, which asks the government to review the legality of his detention. It has been held in abeyance pending the prisoner’s trial in Guantanamo.
Lamberth told Miller her challenge belonged at the congressionally created U.S. Court of Military Commission Review, which had already declined to stay jury selection over the competency issue.
Miller had appeared in the federal courtroom on Friday on a video link from Guantanamo after a morning of closed, pretrial hearings involving classified evidence to be used at the trial itself.
She argued that Judge Fitzgerald was rushing to trial without a full exploration of al-Nashiri’s mental capacity.
“There is a real danger that we will go to trial without my client given the competency evaluation he is due,” she said. “He is a very damaged man.”
Al-Nashiri was held by the CIA from 2002 to 2004, mostly in solitary confinement, and was waterboarded, deprived and subjected to other abuse that a previous military judge found so torturous he disqualified the prisoner’s subsequent, 2007 confessions to federal agents at Guantanamo from use at his trial.
In 2013, a previous military medical board diagnosed him with post traumatic stress and other disorders but ruled him fit for trial. Miller is the third skilled capital defense lawyer to represent al-Nashiri since his arraignment in 2011. She said she encountered such a damaged man that she sought and got Pentagon approval to hire Dr. Terry Kupers, a civilian forensic psychiatrist, to evaluate him over the summer. Dr. Kupers found al-Nashiri unfit for trial, as did another defense consultant, the psychologist Heather Holmes.
Last month, Judge Fitzgerald ordered the creation of a Sanity Board to evaluate al-Nashiri, giving it 28 days to get a doctor to Guantanamo, conduct interviews, review records, and return a report. The military sent an Army major, a psychiatrist, who submitted a classified, privileged 80-page report this week that declared al-Nashiri fit for trial. Defense lawyers and the judge got to see it; prosecutors were given a summary. The public has so far seen none of it.
Miller said Friday that the judge set such a short deadline for the report that the Army psychiatrist was given insufficient time to do it properly.
As an example, she said, five other Guantanamo prisoners had accepted the psychiatrist’s invitation to meet with him and discuss al-Nashiri, as long as their lawyers sat in on the interview. All six men are held in the same cellblock, and have been held together for years. But none of the lawyers were able to get to Guantanamo before the psychiatrist finished his report.
Miller argued that the prisoner was entitled to a more fulsome hearing.
Then Friday afternoon, Judge Fitzgerald ordered testimony on Monday from the defense experts Kupers, Holmes, and from Dr. Sondra Crosby, an expert on evaluating and treating torture victims who has been meeting with the prisoner and consulting on the case for more than a decade. More than three years ago, she testified in graphic detail about the CIA’s use of a quasi-medical procedure called rectal feeding to punish its prisoners and how it was done to al-Nashiri.
Miller said Monday was too soon. None of the three experts were at Guantanamo and had no access to the classified 80-page report to discuss it meaningfully, she said.
