Odd Guantanamo episode derails defense of detainee health care

By CAROL ROSENBERG | The Miami Herald | Published: April 26, 2014

GUANTANAMO BAY NAVY BASE, Cuba — Attorneys abruptly halted an Army doctor’s bid to defend detainee medical care Friday after it was revealed that the prison’s lawyer had engaged in some peculiar pretrial preparation in the USS Cole death penalty case.

The top prison lawyer, a Navy officer, had summoned the doctor to watch a secure feed of war court testimony at prison headquarters that described his patient as a torture victim. Nobody, it seemed, had instructed the doctor or the prison lawyer to shield the witness from the proceedings.

Instead, the accused Cole bomber Abd al Rahim al Nashiri, 49, watched Friday as his anonymous doctor at Guantanamo’s secret prison, Camp 7, said he came from clandestinely watching torture expert Dr. Sondra Crosby criticize Nashiri’s medical care in sworn testimony prepared with a rebuttal.

The doctor, wearing the uniform of an Army major and identified only in court as Dr. M, said the staff attorney summoned him at 8:30 a.m. Thursday to watch the torture treatment expert testify on a secure feed in his office. The doctor left the lawyer when Crosby finished testifying, and was summoned back when, in a surprise, trial judge Col. James Pohl ordered additional testimony by Crosby on Thursday afternoon.

Pohl was miffed: “I certainly would not expect that type of scenario to occur again.”

The development temporarily sidelined defense attorney Rick Kammen’s efforts to get the judge to suspend pretrial preparation in the warship bombing case until Nashiri gets better health care. Nashiri is accused of orchestrating al-Qaida’s Oct. 12, 2000, suicide bombing of the Navy destroyer off Yemen.

Seventeen American sailors died, and the prosecution seeks the death penalty.

Kammen, meantime, says the accused terrorist needs mental health treatment for the trauma he sustained during four years of secret CIA detention. He was waterboarded and threatened during interrogation by a revving power drill. Crosby testified this week that the Saudi got to Guantanamo from CIA custody in 2006 as a victim of physical, mental and sexual torture.

Friday’s testimony from the prison doctor was meant to dispute Crosby’s expert testimony that U.S. military doctors treat only Nashiri’s symptoms — anal-rectal complaints, sleeplessness, chronic pain — not his post traumatic stress disorder.

Were he to testify, the Army doctor said, he’d advise: “I believe we give adequate care, absolutely. More than adequate care.”

For his part, the chief prosecutor didn’t directly concede that anything went wrong when the military doctor watched the civilian doctor’s testimony at a secure location outside the courtroom. Instead, Army Brig. Gen. Mark Martins tried, in court, on the spot, to cobble together a proposed judicial order to in the future strictly govern video feeds from the courtroom to offices around this U.S. Navy base.

The order would let the court “know something about who’s in the places where the closed-circuit television is going,” Martins said. Pohl didn’t take up the offer.

Friday’s disclosure was a variation on a January 2013 war court episode when someone from the CIA reached in and muted the courtroom feed to the public. Pohl ordered all remote-control kill switches disconnected.

Now it appears that an undisclosed number of offices around the base have CCTV feeds unsupervised by either the court or prosecution.

Some sites are known. Reporters watch in a Camp Justice press room, where the military posts a soldier to watch the journalists. Other Army and Navy troops watch in private public affairs officers chambers restricted to “military personnel only,” a restriction that could admit entry to thousands of troops.

Civilian contractors have feeds of courtroom proceedings into their work space, as does the lawyer for the prison camp commander, Adm. Richard Butler, at prison camp headquarters some distance from the war court compound.

Nashiri’s civilian death penalty defender Kammen labeled the development as “rather bizarre” and at odds with civilian court practice. He asked the judge to order to court the Army psychiatrist who was assigned to Nashiri’s case for the past seven months, since that doctor hadn’t watched Crosby’s testimony.

That brought another surprise. It was disclosed that the psychiatrist assigned to treat Nashiri, also with the Army, went on leave last week and was somewhere in the United States. The psychiatrist may testify Monday by video-teleconference.

In other court developments Friday:

  • Pohl ordered the government to fund a defense jury consultant for the Nashiri trial, scheduled to start with jury selection in October. The Pentagon pays all defense bills and had refused to pay for expert Marjorie Fargo. A case prosecutor argued Nashiri’s lawyers didn’t need a consultant to help pick the U.S. military jury. Pohl overruled them.
  • Defense and government lawyers went into a classified session with the judge to discuss a secret motion on a prosecution plan to have a Yemeni man who was killed in a U.S. drone strike testify through hearsay. Prosecutors apparently propose to have federal agents describe a decade-old interrogation of the “witness,” Fahd al Quso.
  • The judge instructed Nashiri’s lawyers to decide by Monday whether to begin arguing over a prosecution bid to scale back the judge’s sweeping CIA black-site discovery order, or start addressing the motion for reconsideration in June. Prosecutors wrote in a still-sealed filing that, if the judge doesn’t change his mind, they’ll appeal the order to a Pentagon panel — a scenario that would likely derail plans for a December trial.

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