2/24 Motions Hearing #5: Medical Care

Argument comes now on AE 199, a government motion seeking the court's permission to conduct DNA testing on four hair samples in an FBI lab without the presence of the defense's expert witness.  (It's not exactly profound stuff, so we'll mention it here only it passing.)  When that's done, Judge Pohl turns to AE 205, a defense motion asking the commission to review Al-Nashiri's medical care. This includes a motion to compel the appearance of various witnesses for an evidentiary hearing on the subject. Learned Counsel Rick Kammen says that Al-Nashiri was diagnosed with post-traumatic stress disorder (PTSD) by government physicians, but was not given adequate medical care after that diagnosis. Accordingly, the defense wants the government to present the doctors that diagnosed and then oversaw Al-Nashiri so that the court can determine whether they have expertise with PTSD, why they were resistant to meeting with a PTSD expert, and whether they were simply indifferent to Al-Nashiri's diagnosis. The defense also seeks up-to-date records of Al-Nashiri's medical treatment to determine whether the government has addressed the issue of his lack of treatment. Commander Andrea Lockhart rises for the prosecution and states that the court can decide the issue of Al-Nashiri's medical treatment as a matter of law and thus no evidentiary hearing is necessary. Because defense counsel does not claim that the defendant's medical care or lack thereof has interfered with his legal rights or due process---such as by impeding the right to counsel or preventing the defendant from making statements---the issue has no nexus to the commission and therefore can be resolved as a matter of law, and with deference to the detention facility. Lockhart also contests the specific medical experts that the defense seeks to present. She observes that one, the head of the detention facility, was not responsible for overseeing Al-Nashiri's medical care and so is not relevant. Another, the one that diagnosed Al-Nashiri, is only relevant if the defense can prove that Al-Nashiri's PTSD was a result of torture, rather than incarceration or something in his past. Lastly, the unnamed doctors who directly oversaw the defendant's treatment at the facility would be redundant upon the defense's pending receipt of updated medical records. Lockhart concludes by asking the court that, if the doctor that diagnosed Al-Nashiri be allowed to testify, that the government be given all of the records upon which that testimony will be based and also that it's own expert be allowed to examine the defendant. On rebuttal, Kammen argues that the testimony of the head of the facility, or "warden" in Kammen's words, is relevant because the record should reflect that the individual who "runs the place" failed to properly supervise those under his charge. Judge Pohl remarks that this sounds like the defense is asking him to review the conditions of confinement, which is only appropriate if there is some nexus to the case before the commission. Kammen points out that the environment in which Al-Nashiri's medical care took place is important for determining the nature of that care. Lockhart passes on rebuttal and the court moves on to a number of scheduling issues to round out the day. Judge Pohl recesses for the day with plans to return on Wednesday for a closed hearing to finish AE 181.