2/5 Al-Nashiri Hearing #1: Dr. Iacopino, I Presume

The commission is called to order, with all parties present---including the accused.  The witness, Dr. Iacopino, also is “here,” albeit only virtually: he appears today by video teleconference ("VTC"), which will also be broadcasted to us here in Fort Meade. Before the good doctor testifies, defense lawyer Lt. Cdr. Stephen Reyes raises an issue of his own: an incident during transport.  The accused elected to attend today, says Reyes---but en route to the ELC, al-Nashiri’s wrists were injured, apparently by handcuffs.  The defense wants to get to the bottom of what happened, and in particular, to obtain documentation of the incident underlying the injury.  No objection from the prosecutors; Reyes’ request is granted. Dr. Vincent James Iacopino swears to tell the whole truth and nothing but, standing in what appears to be his office’s conference room. One of al-Nashiri’s lawyers, Rick Kammen, examines Iacopino.  The doctor has a specialty in internal medicine; he works full time with Physicians for Human Rights (“PHR”).  And he’s got chops: undergrad at Villanova, medical and doctoral degrees from Georgetown, residencies in the United States and abroad, and a postdoctoral fellowship at Stanford.  He teaches at Berkeley, and the University of Minnesota’s medical school.   Kammen turns to Iacopino’s affiliation.  Physicians for Human Rights (“PHR), Iacopino says, aims to document human rights violations, and calls on health professionals to carry out that mission.  Importantly, PHR filed an amicus brief in Al Nashiri v. MacDonald, regarding the accused’s treatment.     The suffering of torture victims is at the heart of Dr. Iacopino’s work.  Apart from PHR, he’s served as director for a treatment center for torture survivors, in San Francisco; documented torture’s physical and psychological harms to asylum applicants; and helped to formulate international standards for torture investigations, like the Istanbul Protocol.  Iacopino likewise has worked with the International Criminal Court and the U.N. High Commissioner for Human Rights.  Lastly, he’s testified in a habeas case brought by a high value detainee, and reviewed claims by other detainees. Kammen clarifies: what is the Istanbul Protocol about, exactly?  Iacopino: the Protocol is a set of guidelines on documenting a torture investigation, legally as well as medically.  The instrument is unique, in that it goes beyond pure international legal standards and imposes procedural requirements for collecting physical and psychological evidence of abuse.  Kammen again: the government’s question is whether al-Nashiri has a mental problem, which affects his ability to understand the charges.  On the first part, would an examination into a mental defect call for Istanbul Protocol-trained personnel?  Iacopino: yes, definitely. When asked, the expert agrees that al-Nashiri’s examination must be conducted by someone fluent in his language and familiar with his culture.  Questions about sexual trauma must be worded in a respectful way, for example.  Ditto the need for documentation of al-Nashiri’s torture; the doctor thinks that will be necessary to have all that on hand, too, in order to corroborate the cause of particular symptoms.  Of course Kammen seeks not only records of the causes of al-Nashiri’s trauma, as well as medical records---a distinction that all comprehend immediately.  Dr. Iacopino thinks the competency inquiry will have to touch on both, and that an incomplete universe of documentation could lead to a less-than-reliable examination into whether, in fact, al-Nashiri suffers from a mental defect nowadays.  Kammen then moves to questions about particular psychological tests, which have been “normed” to torture victims.  Iacopino identifies some, including symptom checklists. Over to prosecutor Anthony Mattivi, who bids Iacopino good afternoon---or good morning, given the doctor’s location.  The men turn first to the Istanbul Protocol.  That document has a whole chapter on “ethical codes.”  In it, there’s also a discussion of “health care ethics,” which Mattivi recites aloud: the gist is to emphasize that a doctor must always act in the best interest of the patient, regardless of all other obligations.  Iacopino acknowledges this, but suggests there can be exceptions for, among other things “legal work.”  Not enough for Mattivi: aren’t doctors always obligated to act ethically?  The answer could be “no,” replies Iacopino, in certain forensic situations where uncovering the “truth” might run contrary to the client’s interests.  The prosecutor toys with this answer, by hypothesizing a panel of doctors appointed by the military commission to examine al-Nashiri.  Would those doctors be more interested in the truth, or the subject’s well-being? The witness pivots to the need to establish a trusting relationship with the patient. The Istanbul Protocol contemplates interviews of detainees in custody, right?  Yes, answers the doctor.  But---and this seems to be a key point for Mattivi---doesn’t the protocol also call for interviews outside the custody of the military or the police?  Indeed it does, confirms Iacopino.  Mattivi: how’s that possible here, when the detainees are in military custody already, almost 24/7?  And what if there are no allegations of ongoing abuse, and a case centers purely on past torture by others?  For Iacopino, the Istanbul Protocol calls for examination in the absence of corrections or military personnel, but nevertheless acknowledges circumstances when supervisory officials might stand in---for example, when the interviewee has been violent.  In the doctor’s experience, though, that almost never happens.  Mattivi comes to the punch line: the Protocol elsewhere says that the presence of military personnel should be “noted”---thus suggesting that such presence isn’t always a problem.  The doctor agrees, but then hammers home his same message from before: interviews need to be conducted away from custodial personnel, lest the interviewee feel coerced. Has Dr. Iacopino been involved in a Rule 706 board?  No, but he has talked to Kammen about the subject.  On that point, Mattivi underscores that the board is convened for a limited purpose---but that the Istanbul Protocol investigation is broad.  And the witness, for his part, agrees that an Istanbul Protocol-compliant inquiry is wide in scope.  He qualifies that such an inquiry doesn’t always require a review of any records of mistreatment, in order to match allegations of abuse with psychological consequences.  The accuracy of an investigation depends on how much corroboration the investigator can get, under the circumstances.  Mattivi emphasizes: a key point of an Istanbul Protocol examination is to document what a patient has experienced, right?  That’s right, says Dr. Iacopino, who notes the various ways of uncovering those experiences.  But he rejects Mattivi’s further suggestion that Istanbul Protocol investigations always require written reports; sometimes, the doctor won’t be asked for any written work product.  Here, Iacopino’s only been asked to testify today. Kammen returns.  His interest is in the existence of a mental disease or defect.  To competently evaluate that, we’ll need more than a “drive-by” examination, right?  The witness answers emphatically, in the affirmative.  That’s where the medical records come in: if there’s a long history of such records, the evaluator is going to need them, right?  Absolutely, in Dr. Iacopino’s view, including records of detainee abuse itself, to the extent they are available. Finally, Kammen asks again about special training for evaluators, in cases involving torture; he mentions treatment, too.  The last part draws an objection from Mattivi, which the court sustains.  Judge Pohl notes the difference between a therapeutic diagnosis and a diagnosis for its own sake, and lets Kammen soldier on.  The witness then elaborates on the training needed to carry out the examination.  It boils down to past work in detecting the psychological evidence of torture---reading of secondary literature, attending seminars on the issue, carrying out mock interviews, and testifying in mock court cases, among other things. The lawyer sits, and Judge Pohl takes over with a question of his own: you think only a professional with the specific training you’ve described would be adequate to diagnose a torture victim?  It depends, answers the witness.  The bench chat comes to a close, and the witness is excused. Kammen asks about a brief VTC interruption---was it a technical glitch, or more “hidden hand” interference, of the nefarious kind we’ve heard so much about lately?  It was the former, says Mattivi—a representation counsel and court both accept. There’s a little more housekeeping, from prosecutor CDR Andrea Lockhart: she urges the court not to order anything, in connection with its Rule 706 order, that might circumvent the discovery process. Lockhart futher notes that the prosecution will make logistical arrangements to coordinate examination by the various doctors.  Of course, the board members will need to be cleared at the TS/SCI level, and read-on to the relevant programs.  That sounds, to Judge Pohl, like suspending the case for six weeks---though he notes that such suspensions often are honored in the breach.  As always, Judge Pohl says, if there are problems with the board’s work, the parties can raise them once it has finished. A little more procedural talk---Kammen mentions scheduling, and the need for an 802 session on some upcoming motions.  Mattivi has some operational security concerns here, and thus asks for a brief recess---which the court grants.