8/6 Motions Hearing #2: MRIs and Skype

When the court returns from recess, the parties move into argument on AE277, the defense’s motion for a judicial order compelling an MRI of Al-Nashiri’s brain to determine if he has brain damage. The defense presents two lines of argument. First, Rick Kammen, Al-Nashiri's Learned Counsel, says his client needs the MRI for medical treatment, and points out the “grave defects in the medical care” at Guantanamo that have compromised the detainee's health. Next, Kammen argues that the defense team needs the MRI to put on their mitigation case. Here, he notes it is his responsibility under ABA standards to pursue this information and that this issue regularly surfaces on appeal. Overall, the lawyer presents this as a “do it now or do it later” choice: Al-Nashiri needs the MRI, and Kammen will be taking the matter up at some stage with the Convening Authority. Kammen anticipates and rejects the government’s argument that the defense team should start with an exam by a neuropsychologist, arguing that that route would present even more logistical challenges than getting an MRI machine to Guantanamo. When pressed by Judge Spath, Kammen acknowledges that the appointed psychiatrist is likely capable of performing the basic, threshold test, though he does not think such an approach would be adequate for “a litigation environment.” Judge Spath is still thinking through the problem.  But he says he is likely to direct the defense to go through the Convening Authority before Judge Spath can or will issue any order. On behalf of the prosecution, Colonel Robert Moscati stands to argue that the defense’s argument fails as a matter of law and fact. As a matter of law, he refers to the long line of precedent where judges have found these decisions outside their authority, arguing that this is an issue for the convening authority. Judge Spath immediately begins asking questions relating to the defense’s mitigation case. He acknowledges that this is a fairly standard request for a procedure typically required by the appellate courts, though he repeats that he is likely to require the defense to go to the convening authority with the medical necessity arguments first. In response, Colonel Moscati addresses what he believes are the factual problems with the defense’s argument. For one, there is insufficient evidence to support Al-Nashiri’s claim of brain damage or his claim that the test is medically necessary. Moscati also emphasizes that neuropsychological testing is the appropriate first step before an MRI. And if the defense is claiming that Al-Nashiri cannot participate in his own defense, then they must go through the appropriate procedures and hearings for that determination---which, according to Moscati, already happened in March of 2013. The baton passes to Kammen, who seems to ease back a bit. "Reading the tea leaves,” he acknowledges that he will route the medical request through the Convening Authority first. Judge Spath states that he is not making any decision as to the willful indifference to medical care claim. Kammen repeats that while the defense refuses to use any neuropsychologist associated with the Guantanamo Bay medical team, as they are “too much a part of this process,” he nevertheless will go ahead with securing an evaluation. Judge Spath appears to be preserving his options on his ruling. He makes clear he is not issuing an order directing the defense to go first to the Convening Authority, and that if he ultimately decides there has been willful indifference in Al-Nashiri’s medical care, he may then issue an order allowing the defense to circumvent that usual process. When pressed by Moscati, Judge Spath says he is not going to rule on the mitigation piece because there is another process in place that has to happen first.  He does not have the authority to step in yet---unless he decides there has been willful indifference. Judge Spath then turns to the unclassified portions of the AE284C motion to compel witness testimony. The defense is requesting the opportunity to cross-examine a doctor, who has opined that Al-Nashiri should not be allowed to speak with his parents via Skype because the mental pain and overwhelming sense of hopelessness the conversation would trigger would outweigh any benefit. Kammen points out that the situation “can’t really get a whole lot more hopeless” then it currently is. Lt. Morris responds for the government. He points out that requiring the government to provide a Skype call would require a finding of deliberate indifference to a prisoner’s serious medical needs constituting unnecessary and wanton infliction of pain. Morris argues that because the defense does not claim there was a breach of this standard, there is no point in calling the witness, as nothing he could say could provide sufficient evidence to support a court order. Moreover, the prosecutor argues that the doctor’s testimony is not relevant because it’s not the basis for the government’s decision---common sense is. Regardless of the medical considerations, it is reasonable for the government to want to restrict the communications of a high-value detainee. Judge Spath then concludes the unclassified discussion. The classified hearing, discussing the government’s non-medical reasons for denying Al-Nashiri the phone call, will continue after the lunch break. Tomorrow’s hearing will be a general discussion over future dates and will not be open to the public.