This Week at the Military Commissions, 3/10 Session: Motion Sickness and Medical Side Effects

March 10th opens with a lengthy examination of an unnamed Senior Medical Officer (SMO), who was formerly responsible for caring for Nashiri from September 2016 through February 2017. The defense team have called the SMO to testify in support of motion AE359 to allow Nashiri to remain at the Expeditionary Legal Center (ELC) the night before his sessions. Transporting Nashiri back and forth from his holding cell and the ELC gives him motion sickness, the defense argues, and medication to treat the motion sickness makes him to drowsy to stay engaged in the hearings.

Defense counsel Rosa Eliades calls the SMO as a witness and begins asking about Nashiri’s motion sickness and the drugs he was prescribed. The SMO confirms, in response to question, that Nashiri has motion sickness, which means he “gets dizzy, nauseous whenever he has transportation,” possibly “light headache[s],” and sometimes the nausea leads to vomiting “in extreme cases.” Motion sickness results from a disconnect between your perception of motion and your actual motion, the SMO explains: you see things move and feel like you are moving too, even though you are standing still.

Prescription drugs used for treating motion sickness carry side effects, most commonly drowsiness and for “a very small percentage,” nausea. Nashiri was prescribed Meclizine for motion sickness and Zofran for nausea. The SMO concedes that stomach ache upset is a side effect of Zofran, but Eliades informs him that confusion, dizziness, fever, shortness of breath, and weakness are also side effects. Nashiri was not taking his Meclizine because it made him drowsy, so the SMO had suggested Nashiri take it the night before his court dates; Nashiri could take Zofran for nausea and Tylenol for headaches after transportation as needed. This solved the problem: Nashiri had “no complaints, no symptoms,” and he took coffee at the courthouse instead of Zofran. For most people, Eliades asks, motion sickness ends when they stop moving; why didn’t Nashiri’s? The SMO doesn’t know; there could be a variety of reasons. Eliades puts it to the SMO that Nashiri faced a dilemma: taking the Meclizine would cure his sickness but the drowsiness made it harder to pay attention at his hearings.

The questioning shifts again. The SMO agrees with Eliades that motion sickness can be rooted in psychological problems, and though a psychiatrist was already seeing Nashiri, the SMO doesn’t think the psychiatrist ever looked into Nashiri’s motion sickness and nausea. As far as the SMO knows, Nashiri’s motion sickness is not psychological, but he admits he did not examine Nashiri’s psychiatric records. The SMO had scanned the Senate’s Torture Report, but he did not remember details about how the GTMO detainees were initially taken to Guantanamo: hooded, chained, headsets blocking sounds, not permitted to move, and diapered. Could this experience, Eliades asks, have had lasting effects on Nashiri? The SMO acknowledges that a psychiatrist might have wanted to ask Nashiri about these experiences more. Nonetheless, the SMO insists, if he knew about these details at the time, he might have referred him to a psychiatrist, but it would not have otherwise changed his treatment of Nashiri.

Eliades then asks about communication. The SMO generally had a translator with him when he visited Nashiri, he explains, except when he asked Nashiri simple questions like “how are you feeling today” and Nashiri replied “good” without any explanation. At one point, Nashiri told the SMO he’d rather stay at the camp then at the ELC because conditions were better—this preference had nothing to do with Nashiri’s medical care. Eliades asks about the SMO’s anonymity: He kept his name secret from Nashiri and secret during testimony out of fear that his family might be threatened if his anonymity was lost. In ordinary practice, it would be important for his clients to know his name to foster trust. Eliades informs the SMO that many torture victims experience “learned helplessness”—they become more compliant and perhaps less communicative with figures of authority, like the SMO. The SMO also agrees with Eliades that he needed to consult with a specialist on torture to adequately care for Nashiri—but the SMO insists that the on-base psychiatrist provided sufficient support.

Eliades concludes her direct examination by asking the SMO if he knew that Nashiri was vomiting after Wednesday’s session. The SMO says that he didn’t and concedes that if he had known that Nashiri was vomiting frequently during his care, it would have affected his treatment. Judge Vance Spath adjourns for ten minutes after confirming that the SMO does not have a flight to catch.

After everyone comes back, Army Colonel John Wells cross-examines the SMO for the prosecution. Nashiri was open and forthcoming with him on physical ailments, the SMO says: tennis elbow, skin rash, headaches. To the SMO’s knowledge, Nashiri has no medical or psychological condition that causes the motion sickness. He suggests that putting a hood over Nashiri’s eyes during transportation might help with motion sickness, and Wells confirms that Nashiri has been taking Ambien to help him sleep. Cross-examination ends, and Judge Spath adjourns for lunch.

Returning at 12:49 pm, Eliades begins redirect examination. After some back and forth with the SMO, she realizes that the prosecution has not disclosed Nashiri’s plan of treatment to the defense and makes clear to Judge Spath that she’ll need to see that document. Eliades then confirms that the SMO had not done an eye, nose, throat (ENT) exam on Nashiri, nor did he consult with an ENT doctor about Nashiri’s condition. The SMO thought there was no need to do so because Nashiri’s motion sickness ended after transportation. Finally, the SMO explains that he told Nashiri not to take Ambien if he was going to take Meclizine the night before his hearings, and he clarifies that putting a hood over Nashiri during transportation could, in some cases, exacerbate motion sickness.

A few quick rounds of re-cross and redirect follow. The SMO informs Wells that the SMO’s plan to have the Meclizine administered before Nashiri slept was not recorded because he conveyed the instructions orally, and he was not responsible for the conditions under which Nashiri was transported. Eliades returns and asks whether the SMO knew that the psychiatrist had told Nashiri to take Ambien rather than Meclizine; the SMO did not. Now the military judge, Air Force Colonel Vance Space, asks some general questions about prescription drugs for motion sickness and nausea, and their side effects. Eliades returns to clarify, once again, that Nashiri may never have taken Zofran. The SMO is excused from testifying.

Defense counsel Richard Kammen reiterates to Judge Spath that he wishes to call a Dr. Crosby and Nashiri’s unnamed psychiatrist as witnesses. The prosecution confirms to Judge Spath that it anticipates disclosing more of Nashiri’s mental health records but insists that no other testimony from doctors is needed to rule on motion AE359. Judge Spath reassures Kammen that he believes that Nashiri suffers motion sickness issues and expresses hope that the prosecution and defense can reach some accommodation on this motion. There may be legitimate security reasons for not keeping Nashiri in the ELC, but the government doesn’t want to have to stop hearings to deal with Nashiri’s drowsiness and nausea. Mark Miller for the prosecution closes the discussion by requesting that discussions of the AE359 motion be moved to a closed hearing so they could discuss the security risks of moving Nashiri to the ELC the night before.

Miller briefly touches on a few more motions with Spath, dwelling at length on defense motion AE335 to suppress testimony by Ahmed Al-Darbi which the defense believes will be compelled by repeated abusive treatment. Miller strenuously denies that Al-Darbi’s testimony was coerced and argues that Rule 304 does not prohibit the testimony of a witness who was previously abused: the way you prove voluntariness of Al-Darbi’s testimony, he says, “is just by having him take the stand.” But Judge Spath suggests that he must at least set an evidentiary hearing to address the defense’s argument that any testimony from a formerly abused detainee would be coerced.

For the defense, Navy Lt. Commander Jennifer Pollio for the defense reiterates that Rule 304 cannot “outweigh and cancel out the protections that Congress created in the” Military Commissions Act. Judge Spath asks Pollio why she could not just argue that the testimony was coerced during cross-examination at the hearing; Pollio replies that she needs to present witnesses at a separate hearing to prove that Al-Darbi’s testimony was coerced. Judge Spath notes that he will not address this issue this weekend, and needs to take some time to consider it. The parties adjourn, with hearings to begin again Monday morning.