Armed Conflict Criminal Justice & the Rule of Law Terrorism & Extremism

4/27 Session #3: Dr. 97 and AE205

Wells Bennett
Tuesday, April 29, 2014, 10:19 PM
We'll hear next from a much-anticipated witness called by the defense: an Army psychiatrist who---as Judge Pohl rules from the bench, overruling defense objections---will testify under a pseudonym after all.  The witness, who the parties now refer to as "Dr. 97," is sworn in.

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We'll hear next from a much-anticipated witness called by the defense: an Army psychiatrist who---as Judge Pohl rules from the bench, overruling defense objections---will testify under a pseudonym after all.  The witness, who the parties now refer to as "Dr. 97," is sworn in.  He testifies now via video link, in connection with AE205, a defense challenge to Al-Nashiri's medical treatment at Guantanamo---which the defense has found woefully lacking, and which, in its view, warrants a pause in proceedings until the situation is improved. Learned Counsel Rick Kammen quickly elicits some background facts about Dr. 97: he's been a psychiatrist for seven years; he was assigned to Guantanamo from October 2013 until quite recently; he was during that time the lone psychiatrist assigned to Guantanamo's secretive Camp 7, where Al-Nashiri and other "high value detainees" are held; he knows that the accused was held somewhere prior to Guantanamo, just not where exactly.  And the psychiatrist's general impression was that, prior to being stashed at Camp 7, the detainee's experience was "very stressful," even hellish in some way.  The witness, when asked, tells Kammen that he didn't speak to prior doctors who had treated Al-Nashiri, at the time the witness transitioned into his assignment at the detention facility---though in theory the witness could have made such inquiries. It quickly appears that Dr. 97 has a "professional disagreement" regarding Al-Nashiri's treatment with the diagnosis made by the defense's expert, Dr. Sandra Crosby.  (The latter, recall, opined that the accused was a victim of torture, physical, emotional, and even sexual.)  But we don't immediately learn the substance of that dispute, as Kammen instead delves into different details: among other things, that in speaking with his superiors, Dr. 97 had become familiar, if only glancingly, with the Istanbul Protocol regarding the documentation of torture---and become so in the context of this litigation; and that, in diagnosing and treating a PTSD sufferer, it would be helpful to know the nature and severity of any trauma to which that person was subjected.  Dr. 97 says nevertheless that such things can be assumed rather than uncovered, and treatment still be just as effective. Kammen thus strongly suggests, here and throughout his questioning, that Dr. 97 never really figured out what happened to Al-Nashiri in CIA custody.  Such is the leitmotif woven throughout the afternoon's questions and answers: Kammen asking why the psychiatrist wouldn't need to know, definitively, what kind of trauma his patient was in fact subjected to, and the witness responding that such information can be helpful but isn't always necessary.  In any event, diagnosis in each case is, Dr. 97 goes on, intensely fact-dependent. The two then trot through some basic signs of PTSD: avoidant behavior, nightmares, anger, flashbacks, and even somatic complaints like constipation and nausea. Generalities done, lawyer and witness turn to a more specific discussion about Al-Nashiri.  The witness agrees that the latter exhibited avoidant behavior during some psychiatric sessions---though past psych records didn't reveal to Dr. 97 what specific kind of avoidance was really in play.  Avoidance didn't have to mean PTSD, the witness says.  Indeed, when asked about Al-Nashiri's complaints about having a belly chain forced on him, the witness tells Kammen that the witness thought such complaints had more to do with the accused's narcissistic personality disorder than some "stressor that happened years ago." The witness agrees, however, that irritability and anger figure in Al-Nashiri's psychiatric records; ditto somatic complaints relating to his back and digestive system. (Al-Nashiri experiences some sort of ongoing colorectal issue.)  The accused had nightmares, too---though these had to do with relationships with other detainees, explains Dr. 97, not mistreatment by the government or PTSD.  Of course, when pressed, Dr. 97 tells Kammen that he has only assumed Al-Nashiri went through some unspecified "hell"---but never learned the details surrounding the detainee's actual abuse.  There isn't, for example, any detailed account of his pre-Guantanamo treatment in Al-Nashiri's medical file. Talk eventually turns to Dr. 97's current diagnosis of Al-Nashiri (narcissistic personality disorder), which seemingly conflicted with that of Dr. Crosby (torture), this case's Rule 706 sanity board (PTSD), and Dr. 97's predecessors.  Kammen asks, and the witness agrees, that several behaviors noted in Al-Nashiri's records aren't features of narcissistic personality disorder---like nightmares and flashbacks.  (The witness notes, though, that a patient can receive multiple diagnoses at once; he seems to object to Kammen's effort to uncover a defect in his diagnostic work.)  When asked, the witness agrees that, as of May, Al-Nashiri's diagnosis by prior doctors was chronic and severe PTSD, along with major depressive disorder.  That was reflected in records made between that time and Dr. 97's arrival at Guantanamo.  The latter reaffirmed the PTSD diagnosis after meeting Al-Nashiri initially---but changed it after a period of time and independent investigation, not long before his departure from duty at the detention facility.  The witness's new diagnosis, made in March, was anxiety disorder, with major depression in remission.  (This also evidently went hand in hand with the witness's other, eventual diagnosis of narcissistic personality disorder.) Around this time, the witness had heard of Dr. Crosby, and begun to research the Istanbul Protocol and related materials.  Kammen marches through the changed diagnosis in exquisite detail, noting that the shift coincided with the filing of pleadings regarding Al-Nashiri's treatment; and suggesting that the accused's symptoms better fit a continued diagnosis of PTSD, and not narcissistic personality disorder.  And, true to form, Kammen asks, and the witness agrees, that the latter has never learned the true source of Al-Nashiri's trauma---the "elephant in the room, "according to Dr. Crosby.  But Dr. 97 rejects Kammen's implication that Dr. 97 quarreled with all the past psychiatrists who treated Al-Nashiri; no, the witness says, he meant only to better document the patient's symptoms, which support his diagnosis now. Lt. Bryan Davis questions the military psychiatrist, who remains on the video teleconference screen.  The prosecutor begins with experience: Dr. 97 has it with respect to PTSD, having dealt with 150-200 PTSD cases. As for this case in particular, the witness sought to build a relationship with the accused, and advocated on Al-Nashiri's behalf---asking for better dietary privileges, a personal DVD player, and so on.  The two sometimes even exchanged jokes, and laughter.  The prosecutor also challenges Kammen's examination on avoidant behavior, the lawyer asking (and Dr. 97 confirming) that Al-Nashiri in fact met with Guantanamo's head medical officer at least 20 times this year;  and that Al-Nashiri, moreover, unilaterally sought treatment for his psychiatric difficulties.  The doctor is especially keen to note that his diagnosis does *not* conflict with those of his predecessors: a patient, like Al-Nashiri, can exhibit symptoms of PTSD at one point in time, but not at a later point in time. The prosecutor also asks whether a change in diagnosis would necessarily affect the accused's course of treatment; Dr. 97 answers in the negative.  And the psychiatrist lastly affirms that, yes, Al-Nashiri has received treatment in accordance with clinical standards.  The prosecutor quickly wraps up. Kammen's redirect develops his by now familiar theme: Al-Nashiri's trauma may have made him less than forthcoming with Dr. 97, the lawyer suggests; Dr. 97, moreover, might be missing something medically significant, in not knowing the precise cause of the accused's trauma---torture.  The examination comes to a brisk end, and the witness is excused. The record made, the time comes to argue AE205---or at least, that time comes after some odds and ends are debated and resolved, including Al-Nashiri's departure from the courtroom and the admission of a few written medical reports into the record. Once that's done, Kammen asks that the case be abated until Al-Nashiri receives adequate medical care for his condition---PTSD, as a result of physical, emotional and sexual torture.  He refers into particular to the accused's colorectal complaints, which arise from a classified event apparently amounting to torture, in Dr. Crosby's view.  (The argument is here somewhat stilted, as Judge Pohl earlier determined that at least some discussion can be held in an open setting, despite the classification of at least some key material bearing on Al-Nashiri's abuse at CIA hands; consequently, the lawyer speaks from time to time in abstract or specially-agreed terms, ones meant to conceal classified details.)  A key feature of Kammen's argument is that military personnel have avoided the torture that gave rise to Al-Nashiri's symptoms in the first place---an extraordinary, structural error, in Dr. Crosby's view.  Accordingly, Kammen asks the court to put the proceedings on hold, pending assignment of physicians trained in the effects of torture-caused PTSD to Guantanamo.  Alternatively, Dr. Crosby herself could train the Guantanamo officials in the needed techniques. At present, those are just insufficient:  as things stand, military psychiatrists can't ask a patient what caused his trauma, or recommend therapeutic contacts with family members, as they would in ordinary contexts.  (The military judge interjects here, wondering skeptically if Kammen means to put the court in the business of monitoring Al-Nashiri's medical care.)  That's "wildly inappropriate," argues Learned Counsel.  He thus reiterates that Al-Nashiri is a torture victim, and that the case should be halted until Al-Nashiri's medical care properly accounts for that. Davis rises in rebuttal, and seizes on the court's anxiety: the latter, he says, shouldn't get involved in day-to-day medical matters at the detention camp.  Such matters simply have no connection to the action in the courtroom, all the more so because Al-Nashiri doesn't argue that he is incompetent, and indeed has been found competent previously.  There is, in short, no evidence to suggest that Al-Nashiri can't participate in this case for medical reasons, and that should end the matter.  But to the extent it doesn't, the fact remains that Al-Nashiri in fact has received adequate care.  A finding to the contrary would require Al-Nashiri to demonstrate "deliberate indifference" to his health---which he hasn't done.  Instead, the record shows only that there's a difference of opinion over the finer points of Al-Nashiri's psychiatric care, but not that he's been mistreated by Guantanamo doctors.  (The prosecutor here questions Dr. Crosby's credentials, noting that her expertise is in psychology, but not psychiatry; the defense chose not to call its psych expert, electing instead to rely upon Crosby, a paid consultant and human rights advocate whose bias should be obvious---in Davis's view.)  A few words more, some further emphasis on the satisfactory medical treatment given to the accused, and Davis concludes. Learned Counsel is somewhat incredulous at the prosecution's suggestion that medical issues can't or shouldn't somehow seep into the courtroom: after all, trust issues have arisen between Al-Nashiri and his counsel, as recently as last session, and these stem directly from (among other things) his treatment by the government.  The example affords Kammen an opportunity to hammer on his main point, again: you can't treat this man without an understanding of what was done to him, and yet Guantanamo's medical folks have opted for just that flawed sort of approach. The lawyer adds that finding out the missing torture information, and furnishing medical personnel with experience in treating torture victims, should be easy.  Judge Pohl certainly has the authority to order such relief, in Kammen's view. With that, AE205 is submitted.  Some housekeeping follows---the parties mentioning, among other things, the prosecution's pending request to reconsider the court's order compelling discovery of Al-Nashiri's treatment during CIA custody, and that request's impact on deadlines and the planned December trial date.   But once all that's done, the commission stands in recess.

Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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