Mental Health in the War on Terror: Culture, Science, and Statecraft

The Meanings of Symptoms and Services for Guantánamo Detainees

PRESIDENT GEORGE W. BUSH JUSTIFIED the use of the Guantánamo Bay detention facility after the 9/11 attacks. He has said of its conditions: “At Guantanamo, detainees were given clean and safe shelter, three meals a day, a personal copy of the Quran, the opportunity to pray five times daily, and the same medical care their guards received” (Bush 2010, 166).¹ He has clarified that “while our humane treatment of Guantanamo detainees was consistent with the Geneva Conventions, Al Qaeda did not meet the qualifications for Geneva protection as a legal matter” (166). He has also expressed ambivalence: “While I believe opening Guantanamo after 9/11 was necessary, the detention facility had become a propaganda tool for our enemies and a distraction for our allies. I worked to find a way to close the prison without compromising security” (180).

Guantánamo still divides the officials who served in the Bush administration. Former vice president Dick Cheney has noted that Guantánamo “likely provides a standard of care higher than many prisons in European countries where the criticism of Guantanamo has been loudest” (Cheney 2011, 354), and followed up: “I don’t have much sympathy for the view that we should find an alternative to Guantanamo—a solution that could potentially make Americans less safe—simply because we are worried about how we are perceived abroad” (356). Secretary of Defense Donald Rumsfeld asserted: “Detainees were more likely to suffer injury from playing soccer or volleyball during recreational periods than they were from interrogations with interrogators or guards” (Rumsfeld 2011, 581). However, Secretary of State Condoleezza Rice conceded its failure: “Some of our goals remained unfulfilled: the President had been unable to close Guantánamo on his watch, a task that has proven equally difficult for his successor” (Rice 2011, 503).

Closing Guantánamo is one promise that President Barack Obama has not kept. As president-elect, he declared: “We should close Guantanamo Bay and stop tolerating the torture of our enemies” because “it’s not consistent with our traditions of justice and fairness” (Obama 2009b, 81). After his inauguration in 2009, President Obama ordered the immediate review of all cases at Guantánamo (White House 2009). Consequently, Secretary of Defense Robert Gates tasked Admiral Patrick Walsh, the vice chief of naval operations, with reviewing the conditions of Guantánamo detainees. The Walsh Report,2 released on February 23, 2009, found that Guantánamo’s conditions conform to Common Article Three of the Geneva Conventions (Department of Defense 2009a), which emphasizes that prisoners of war “shall in all circumstances be treated humanely” through medical care and prohibiting violence, hostage taking, humiliating treatment, and extrajudicial sentences (International Committee of the Red Cross 2009). Less than a year after President Obama denounced Guantánamo, his officials found reasons to preserve it.

President Obama is now in the same position as his predecessor was. He mentioned Guantánamo’s closure in accepting the Nobel Peace Prize (Obama 2009a). A year later, he vowed to close it “to deny violent extremists one of their most potent recruitment tools” (White House 2010). In 2011, the Washington Post reported that President Obama’s failure to close Guantánamo resulted from a lack of political will compared to other signature achievements such as health-care reform (Finn and Kornblut 2011). On January 2, 2013, President Obama signed into law the National Defense Authorization Act for Fiscal Year 2013 and issued a signing statement:

Section 1027 renews the bar against using appropriated funds for fiscal year 2012 to transfer Guantanamo detainees into the United States for any purpose. I continue to oppose this provision, which substitutes the Congress’s blanket political determination for careful and fact-based determinations, made by counterterrorism and law enforcement professionals, of when and where to prosecute Guantanamo detainees. For decades, Republican and Democratic administrations have successfully prosecuted hundreds of terrorists in Federal court. Those prosecutions are a legitimate, effective, and powerful tool in our efforts to protect the Nation, and in certain cases may be the only legally available process for trying detainees. Removing that tool from the executive branch undermines our national security. Moreover, this provision would, under certain circumstances, violate constitutional separation of powers principles.

Section 1028 fundamentally maintains the unwarranted restrictions on the executive branch’s authority to transfer detainees to a foreign country. This provision hinders the Executive’s ability to carry out its military, national security, and foreign relations activities and would, under certain circumstances, violate constitutional separation of powers principles. The executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. The Congress designed these sections, and has here renewed them once more, in order to foreclose my ability to shut down the Guantanamo Bay detention facility. I continue to believe that operating the facility weakens our national security by wasting resources, damaging our relationships with key allies, and strengthening our enemies. My Administration will interpret these provisions as consistent with existing and future determinations by the agencies of the Executive responsible for detainee transfers. And, in the event that these statutory restrictions operate in a manner that violates constitutional separation of powers principles, my Administration will implement them in a manner that avoids the constitutional conflict.

(White House 2013a)3

Through signing statements, President Obama has signaled personal opposition to Guantánamo while passing bills that maintain it. Why? Guantánamo’s success cannot be measured by the numbers of detainees found guilty or prosecuted. Approximately 55 percent of detainees have not been found to commit hostilities against the United States, and only 8 percent have been designated as direct al-Qaeda warriors, with hundreds later released (Denbeaux, Denbeaux, and Gratz 2006). What function does Guantánamo truly serve?

Chapter 2 covered the roles of mental health professionals in military medicine and their accompanying subsequent bioethical debates. Here, I review the experiences of detainees, physicians, and attorneys through legal documents from Guantánamo military commissions. Do detainees really receive the same medical care as guards? Are they more prone to injury from idyllic games of soccer than from interrogations? Legal texts can be analyzed as cultural discourse to investigate the forensic functions of the Guantánamo medical system: (1) How is the mental health of detainees who are facing trial constructed as a medicolegal issue? (2) What medical and legal standards are erected to support and evaluate this issue? (3) What forms of clinical evidence are deployed? (4) How do clinicians reason? (5) What legal outcomes follow from clinicians’ medical opinions?

DETAINEE AS TEXT, GUANTÁNAMO AS CONTEXT, AND THE MEANING OF SYMPTOMS

Violent detainee behaviors have fanned speculations about underlying motives. For example, government officials regard suicidal acts as the conduct of “fanatical madmen,” but human rights organizations construe these as evidence of “psychological deterioration”; both groups pathologize detainees rather than assigning them the agency of political protest (Howell 2007; Savage 2011). Attorneys worry that officials view detainee actions like self-smearing with feces as “disciplinary problems” rather than signs of mental illness, thereby limiting access to treatment (Aggarwal 2009a). In this sense, Guantánamo resembles other forensic medical systems in that a defendant’s actions are subject to contradictory explanations (Aggarwal 2010d).

Social scientists have shown that prisoner actions undergo interpretation during each step of diagnosis and treatment. Mental health professionals use psychiatric classification in jails to diagnose treatable “mad” behaviors from untreatable “bad” behaviors (Rhodes 2000). The “bad,” who are viewed as inherently evil, constantly arouse suspicions whether they conform to or resist prison conditions (Rhodes 2002). Symptom interpretations also vary according to prison setting, with segregation units and prison cells leading to more personality disorder diagnoses as compared to office visits (Galanek 2013). Prisoners in talk therapy programs must acknowledge guilt as a precondition for treatment, even if they maintain their innocence (Waldram 2007, 2008). Forensic medical settings display consistent differences in patient-clinician symptom interpretations, with clinicians ultimately exerting power over patients. Such findings can be tested in forensic mental health cases with Guantánamo detainees.

Guantánamo’s Office of Military Commissions (OMC) supplies legal texts that constitute a discrete discourse to analyze interpretations of detainee symptoms.4 Here, we can adopt medical anthropology theories in a transdisciplinary fashion. Byron Good and Mary-Jo Good (1980) espouse a “cultural hermeneutic model for clinical practice”:

The interpretive goal of the cultural hermeneutic model is understanding. Symptoms are viewed as an expression of the sufferer’s reality and as linked to associated stresses and experiences that constitute the personal meaning of the illness. The interpretive task is to understand the meaning of the symptoms and the illness for the sufferer. As in classical hermeneutics, this involves moving dialectically from the part (the “text”, the symptom) to the whole (the “context”, the illness network) and back again, to bring to understanding the illness from the sufferer’s perspective.

(180–181)

Good and Good (1980) recommend the cultural hermeneutic model to analyze symptom meanings in clinical practice from the sufferer’s perspective. This model can be adapted to forensic settings to describe symptom interpretations from multiple perspectives, such as the views of a defendant, the defense team, and the prosecution team. Soliciting these different perspectives can teach us about the contextual networks of such interpretations in adversarial legal systems where defense and prosecution teams seek to establish rules of evidence competitively. The judge eventually advances an interpretation accepted by the legal system, something that I term hermeneutic adjudication. When applied to specific cases, the forensic hermeneutic model can demonstrate the varieties of clinical evidence, clinical reasoning, and final legal outcomes around the mental health of detainees facing the Office of Military Commissions.

GUANTÁNAMO’S LEGAL BASIS AS ILLNESS CONTEXT

Good and Good (1980) emphasize context, the illness network, in interpreting the text of an individual’s symptoms. The context of illness for detainees is the procedure for mental health evaluations at Guantánamo, which differs from that of civilian courts. The Military Commissions Act of 2006 (also known as MCA 2006 or HR-6166) empowers commissions to try any “alien unlawful enemy combatant” for war crimes. Alien unlawful enemy combatants include members of non-state organizations such as al-Qaeda or the Taliban at war against the United States.5 The commissions are composed of “any commissioned officer of the armed forces on active duty” (Military Commissions Act of 2006, 5). Through MCA 2006, we observe the cultural construction of a medicolegal issue:

It is an affirmative defense in a trial by military commission under this chapter that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts. Mental disease or defect does not otherwise constitute a defense.

(Military Commissions Act of 2006, 17)

Mental disorders do not disqualify detainees from trial by commission. Instead, detainees must prove that mental disorders limited their responsibility: “The accused in a military commission under this chapter has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence” (Military Commissions Act of 2006, 17).

MCA 2006 details the legal standards to support and evaluate the accused’s lack of mental responsibility. The military judge invests the military commission with the power to resolve the medicolegal issue: “The military judge shall instruct the members of the commission as to the defense of lack of mental responsibility under this section and shall charge them to find the accused—(1) guilty; (2) not guilty; or (3) subject to subsection (d), not guilty by reason of lack of mental responsibility” (Military Commissions Act of 2006, 17).

The outcome “not guilty by reason of lack of mental responsibility” can follow only “if a majority of the members present at the time the vote is taken determines that the defense of lack of mental responsibility has been established” (Military Commissions Act of 2006, 17). Voting takes place by “secret written ballot.”

The Rules for Military Commissions (RMC) further detail the legal standards to support and evaluate the accused’s lack of mental responsibility (Department of Defense 2006b). Under Rule 504, a military commission can be convened by an official known as a “convening authority” such as the secretary of defense or an individual designated by the secretary (Department of Defense 2006a).6 Rule 706 is titled “Inquiry Into the Mental Capacity or Mental Responsibility of the Accused.” Under Rule 706, a commission member, military judge, or participating counsel can apply for a mental examination if “there is reason to believe that the accused lacked mental responsibility for any offense charged or lacks capacity to stand trial” (Department of Defense 2006b, 55–56). A “706 board” (as it is colloquially known) then conducts an inquiry with the membership of the board as “consisting of one or more persons” and “each member of the board shall be either a physician or a clinical psychologist. Normally, at least one member of the board shall be either a psychiatrist or a clinical psychologist” (Department of Defense 2006b, 56). The 706 board must make “separate and distinct findings” for each of the four questions:

(A) At the time of the alleged criminal conduct, did the accused have a severe mental disease or defect? (The term “severe mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, or minor disorders such as nonpsychotic behavior disorders and personality defects.)

(B) What is the clinical psychiatric diagnosis?

(C) Was the accused, at the time of the alleged criminal conduct and as a result of such severe mental disease or defect, unable to appreciate the nature and quality or wrongfulness of his or her conduct?

(D) Is the accused presently suffering from a mental disease or defect rendering the accused unable to understand the nature of the proceedings against the accused or to conduct or cooperate intelligently in the defense? Other appropriate questions may also be included.

(Department of Defense 2006b, 56–57)

A statement consisting only of the board’s conclusions is circulated to the officer who ordered the examination, the accused detainee’s confinement official, all counsel, the convening authority, and, after referral of charges, the military judge. The full report is released only to the defense and to the medical personnel caring for the accused, unless further release is authorized by the convening authority or a military judge. Only the defense counsel, the accused, and the military judge can disclose direct or derived statements made at the 706 hearing to the prosecution. Rule 909 allows the convening authority to hospitalize or treat the accused if the accused is found incompetent and to reconvene the commission should competency be restored. The convening authority can also disagree with a conclusion of incompetence and continue the trial: “In making this determination, the military judge is not bound by the rules of evidence except with respect to privileges” (Department of Defense 2006b, 93). The Military Commissions Act of 2009 does not alter these conditions (Department of Defense 2009b).

The construction of issues around an accused’s lack of mental responsibility and its associated legal standards exhibits distinct cultural meanings. MCA 2006 allows commissions of “any commissioned officer of the armed forces on active duty” to determine an accused’s defense of lack of mental responsibility. The commission reaches a conclusion by majority vote through secret ballot in a style of clandestine democracy. A political process internal to the commission rather than the product of scientific merit determines conclusions on the accused’s defense. RMC 706 ambiguously states that each member of its board “shall be” a physician or clinical psychologist, but immediately concedes that only one must be a psychiatrist or psychologist. RMC 706 also creates hierarchies among mental disorders, excluding defenses from “antisocial conduct,^[7] or minor disorders such as nonpsychotic behavior disorders and personality defects.” The term “minor” is not fully explained, permitting considerable interpretive latitude. RMC 909 also frees the military judge from “rules of evidence” in disagreeing with the 706 board. Different interpretations of a detainee’s symptoms rest against this context.

HERMENEUTICAL ADJUDICATIONS IN SPECIFIC DETAINEE CASES

Table 3.1 lists all of the cases through the Guantánamo military commissions systems, their legal status, and whether a mental health evaluation was requested.⁷ The remainder of this chapter presents analyses of randomly selected cases. Each case is organized around a timeline related to mental health determinations. At times, the court spells a detainee’s name differently, so only the first spelling is used. These specific cases reveal key forensic functions: the procurement of clinical evidence, the application of clinical reasoning, and the legal outcome based on the clinician’s medical opinion. The legal outcome depends on the military judge’s hermeneutical adjudication of a detainee’s symptoms. When this chapter was written, all case files were accessible in drop-down menus from the general OMC website (http://www.mc.mil/CASES/MilitaryCommissions.aspx):

TABLE 3.1 Guantánamo Detainee Cases with Requested Mental Health Evaluations

CASE NAME	STATUS	EVALUATION?
Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri	Active	Yes
Abdul Ghani	Withdrawn/Dismissed	No
Abdul Zahir	Archives	No
Ahmed Khalfan Ghailani	Withdrawn/Dismissed	No
Al Qahtani	Archives	No
Ali Hamza Ahmad Suliman al Bahlul	Appeal	No
Ahmed Mohammed Ahmed Haza Al Darbi	Withdrawn/Dismissed	Yes
Binyam Ahmed Muhammad	Withdrawn/Dismissed	No
David M. Hicks	Completed	No
Faiz Mohammed Ahmed Al Kandari	Withdrawn/Dismissed	No
Fouad Mahmoud Hasan Al Rabia	Withdrawn/Dismissed	No
Ghassan Abdullah al Sharbi	Withdrawn/Dismissed	No
Ibrahim Ahmed Mahmoud al Qosi	Completed	Yes
Khalid Shaikh Mohammed et al.	Active	Yes
Majid Shoukat Khan	Active	No
Mohammed Hashim	Withdrawn/Dismissed	No
Mohammed Jawad	Withdrawn/Dismissed	Yes
Mohammed Kamin	Withdrawn/Dismissed	Yes
Noor Uthman Muhammed	Completed	Yes
Obaidullah	Withdrawn/Dismissed	No
Omar Ahmed Khadr	Completed	Yes
Salid Ahmed Hamdan	Appeal	Yes
Sufyian Barhoumi	Withdrawn/Dismissed	No
Tarek Hamoud El Sawah	Withdrawn/Dismissed	No

Abd al-Rahim Hussein Muhammed Abdu al-Nashiri

September 15, 2011 (Office of Military Commissions 2011)—Al-Nashiri is charged with perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, terrorism, conspiracy, intentionally causing serious bodily injury, attacking civilians, attacking civilian objects, and hazarding a vessel during attacks against the USS The Sullivans in January 2000, the USS Cole in October of the same year, and the MV Limburg in October 2002.

March 9, 2012 (United States of America v. Abd al-Rahim Hussein Muhammed Abdu al-Nashiri 2012a)—Al-Nashiri’s defense motions that he be unshackled when meeting with his attorneys: “During his incarceration with the CIA, the accused was tortured while shackled. As a result of the torture, the use of restraints is a retraumatization of his torture and interferes with his communications with his counsel and in light of his behavior with counsel and in court is unnecessary.” His attorneys detail that the torture for four years at a CIA black site starting in 2002 included waterboarding, threats with a handgun, threats with a power drill, and threats to harm his family:

As a victim of torture, it is likely that the accused suffers from Posttraumatic Stress Disorder. One of the hallmarks of PTSD is the presence of “intrusive memories” or flashbacks of the traumatic event. … Thus, any present condition that mirrors the past trauma can cause retraumatization. If this were to occur, the victim may behave in a way to avoid situations that are a reminder of the past trauma. Further, this retraumatization is likely to cause further psychological damage and exacerbate any symptoms that exist. Here, the accused underwent horrendous treatment by the government while he was shackled. And the use of shackles during legal visits acts as a reminder of these past horrors and amounts to the retraumatization of the torture. Furthermore, this retraumatization significantly interferes with the accused’s ability to assist in his defense.

The defense’s application of clinical reasoning: Shackles remind al-Nashiri of torture, which then trigger “retraumatization” from “likely” PTSD.

April 3, 2012 (United States of America v. Abd al-Rahim Hussein Muhammed Abdu al-Nashiri 2012b)—The prosecution motions that the Military Commission release al-Nashiri’s mental health records and that they be allowed to conduct their own mental health examination of him:

The defense affirmatively placed the mental state of the accused at issue in its renewed motion for the accused not to be restrained during attorney-client meetings. In addition to the allegations set forth in the defense’s motion, the defense provided notice that it intends to rely on what it considers to be an expert on matters relating to PTSD and PTSD-like symptoms. The defense also provided notice to the government that the accused would be testifying during oral argument concerning the alleged treatment of the accused and how that treatment affects his ability to participating [sic] in attorney-client meetings. Because the defense has placed the mental health of the accused at issue, it waived any potential patient-psychotherapist privilege protecting the accused’s mental-health records from disclosure.

The prosecution’s application of clinical reasoning: (1) PTSD requires an expert diagnosis. (2) The defense has waived al-Nashiri’s right to medical privacy by placing his mental health “at issue.”

April 9, 2012 (United States of America v. Abd al-Rahim Hussein Muhammed Abdu al-Nashiri 2012c)—The defense motions the government to reject the prosecution’s above motion:

Significantly, and contrary to the government’s assertions, the defense has not put Mr. Nashiri’s mental health at issue. Mr. Nashiri’s medical records from the time in Guantanamo are ultimately irrelevant to the claim he is making. … The defense will not put on evidence purporting to diagnose Mr. Nashiri nor otherwise make mental health claims beyond the common sense and readily perceivable traumatic effects that a human being would suffer under prolonged torture.

The defense’s application of clinical reasoning: (1) The defense has not placed al-Nashiri’s mental health “at issue.” (2) The defense invokes “common sense” that “traumatic effects” develop after torture, rendering the procurement of clinical evidence unnecessary.

September 13, 2012 (United States of America v. Abd al-Rahim Hussein Muhammed Abdu al-Nashiri 2012d)—The prosecution motions the court to deny the defense team’s motion that al-Nashiri be examined by physicians after appearing before the commissions on July 17, but not July 18 and 19, 2012. The prosecution team argued that his absence was a matter of law, not evidence:

Prior to the day’s hearing on 19 July 2012, CDR Strazza [al-Nashiri’s attorney] again met with the accused at his cell to notify him of the schedule for attending court on that day. The accused acknowledged the presence of CDR Strazza, acknowledged his scheduled hearing, but again told CDR Strazza that he did not want to go to court. The accused explained that he was boycotting the proceedings in protest of JTF-GTMO’s use of a standard method of transporting detainees internally within the housing facility—that is, JTF-GTMO employs a belly chain for such movements. The accused explained to CDR Strazza that he objects to the use of belly chains. CDR Strazza explained to the accused that because he was to be moved outside the facility, the belly chain would not be employed to transport the accused. The accused indicated that he understood the distinction, and he reiterated that he was protesting the use of the belly chain during any movement, including movements unrelated to his transport to the ELC to attend court. The government disputed the prosecution’s reasoning, “The defense now argues that it believes some psychological injury might result from the accused’s transportation to and participation in the proceedings. The defense’s post-hoc rationalization- that it ‘believes that something related to [the accused’s] conditions of confinement may have triggered a flashback to his past treatment and likely caused [the accused’s] refusal to come to court,’ does not support the Commission delaying its consideration of the government’s motion. Rather, the defense’s belief is mere speculation regarding potential effects of detention operations on the accused, and such speculation should not be considered by the Commission.”

The prosecution’s application of clinical reasoning: Al-Nashiri’s behavior in not appearing before the military commission should not be assumed to be “psychological injury” resulting from detention.

September 20, 2012 (United States of America v. Abd al-Rahim Hussein Muhammed Abdu al-Nashiri 2012e)—The defense replies that al-Nashiri’s distress on appearing before the military commission is precisely the reason that he should receive a medical evaluation: “The government mentions several times that the defense has presented no evidence that Mr. Al-Nashiri has suffers [sic] from any psychological ailment or suffers from at all from effects [sic] of detention operations. This is exactly why the defense insists that a medical examination of Mr. Al-Nashiri be conducted.”

The defense’s application of clinical reasoning: Al-Nashiri’s refusal to appear before the military commission should be evaluated to ensure that it is not from a mental disorder.

October 23, 2012 (Office of Military Commissions 2012a)—The military judge Colonel James Pohl orders that al-Nashiri’s presence in court is a legal issue, not a psychiatric issue: “The Commission sees the presence of the accused strictly a legal issue [sic] unrelated to the personal circumstances of the accused.”

Hermeneutical adjudication: Al-Nashiri’s presence in court is not related to his psychological state.

October 24, 2012 (Office of Military Commissions 2012b)—Al-Nashiri attends the hearing and explains his absence in two prior hearings:

AL-NASHIRI: I thank you for letting me talk. I have been, for the last ten years, with nobody to hear what I have to say. Ten years. Today I would like to talk about a small issue. I have the intention to always show up here. This is my case, and it is my right to defend myself. But if you order the guards to bring me a bad chair, when I’m sitting in an uncomfortable place, I have the right to leave this court. You have to provide me with a comfortable chair where I can sit down comfortably. Also, when they place me in a bad car and transport me here, when I’m really tired and getting sick and throwing up, I have the right to tell you I need a more comfortable vehicle to bring me here. Also, in my prison, the place where I always sit, if there are attacks on me under the so-called security measures where they can do—where we can do what we want, I have the right to stand up and tell the judge about them. It is not possible for me to come and say things that the government may not like. And back there in my prison, they create new rules by which they attack us, and they say, “We are taking security measures.” That’s impossible. I have not attended the past two sessions because of the ill-treatment of the guards on us. They say, “That’s security and we have the right to do everything.” That’s impossible.

Security must have a limit. I have been asking for a long time about belly chains. I have a bad back, and my nerves are also bad. But they insist—but they insist on placing chains around my waist. I hope that the judge can explain to these guards and the people in charge to stop those aggressions. I call them “aggressions” because they have nothing to do with security.

I am sitting in front of you right here with nothing in my hands. There are four guards. That’s the proper security procedure. And I thank you for treating us well, but they don’t treat us well back there. If you move for even one meter outside of your cell, because they are coming to inspect your cell, they chain your hands, chain your legs, and a belly chain on your waist and back—

JUDGE POHL: Mr. Nashiri, don’t talk about specifics that your counsel can raise at another time.

AL-NASHIRI: Well, that’s very well. I just want to tell you, that if I come here again [sic], that will be my way of condemning what’s going on. I do intend to attend all future sessions, but if the guards do not treat me better, I have the right not to come and let the world know that the judge sentenced me to death because I didn’t show up to court due to chains. Thank you.

JUDGE POHL: Good to go? Thank you.

Al-Nashiri’s interpretation: His refusal to appear before the military is a political act of defiance against his mistreatment. Al-Nashiri refuses to attend because of “ill-treatment” from the military commission system such as “bad” chairs, “bad” transport, and the “aggressions” of violent security measures from prison guards, not because of concerns about reexperiencing trauma through shackles. Nowhere does al-Nashiri doubt the judicial integrity of the commissions as a political act of defiance, stating his intention to attend all future sessions as long as he is treated better.

Hermeneutical adjudication: Judge Pohl orders al-Nashiri not to “talk about specifics” about his mistreatment.

November 15, 2012 (United States of America v. Abd al-Rahim Hussein Muhammed Abdu al-Nashiri 2012f)—The prosecution team submits a motion to the court that al-Nashiri be evaluated by a 706 board since “the accused because the accused [sic] apparently perceives himself to be under ‘attack’ by the guard force and he has made claims that his ‘nerves are also bad.’ Those statements, coupled with previous assertions from defense counsel, support ordering the inquiry.”

The prosecution’s procurement of clinical evidence: Al-Nashiri admits to paranoia and bad nerves. The prosecution’s application of clinical reasoning: Al-Nashiri needs a 706 evaluation.

December 28, 2012 (United States of America v. Abd al-Rahim Hussein Muhammed Abdu al-Nashiri 2012g)—The defense team submits a motion for the court to deny the 706 board hearing:

The prosecution’s request, by its terms, is not in good faith. The prosecution admits that it cannot state any facts that justify its request. The request is based upon the defense’s suggestion that because Mr. Al-Nashiri was tortured by the United States he suffers from PTSD and other sequalae [sic] of that torture. While Mr. Al-Nashiri does suffer from mental disease or defect, the defense does not allege, at this time, that that [sic] the mental disease or defect falls within the language of R.M.C. 706(c)(2)(D) which provides: “Is the accused presently suffering from a mental disease or defect rendering the accused unable to understand the nature of the proceedings against the accused.”

Moreover the defense makes no claim that the warranting an evaluation under R.M.C. 706(c)(2)(C) that at the time of the alleged criminal conduct, the accused had a severe “mental disease or defect.”

The defense’s application of clinical reasoning: Al-Nashiri may suffer from a mental disorder, but that does not relate to his current proceedings or time at the alleged criminal conduct.

January 4, 2013 (United States of America v. Abd al-Rahim Hussein Muhammed Abdu al-Nashiri 2012h)—The prosecution team disputes the defense team’s motion by claiming that this is a tactical issue: “An inquiry under Rule 706 is in no way dependent on the defense’s tactical trial decision to raise a mental health defense—it requires only that there be a ‘reason to believe’ the accused lacked mental responsibility for the offense or lacks capacity to stand trial.”

The prosecution’s application of clinical reasoning: The defense team is using al-Nashiri’s symptoms strategically.

February 4, 2013 (Office of Military Commissions 2012c)—Judge Colonel Pohl orders the 706 board evaluation since it “deals with competency of his ability to stand trial.”

The judge’s hermeneutical adjudication: Al-Nashiri’s symptoms warrant a 706 hearing.

Ahmed Mohammed Ahmed Haza Al Darbi

December 20, 2007 (Office of Military Commissions 2007a)—Al Darbi is charged with providing material support for terrorism and conspiracy for allegedly planning to carry out terrorist attacks against shipping vessels in the Straits of Hormuz.

November 10, 2008 (United States of America v. Ahmed Mohammed Ahmed Haza Al Darbi 2008a)—The defense motions to suppress incriminating statements made under conditions of torture after apprehension in 2002:

At that time, his clothes were cut off his person, he was blindfolded, choked and cursed at by American agents. He was transported to Bagram Air Base, Afghanistan, where he was subjected to numerous incidents of physical and mental abuse, especially during his first month of confinement. This abuse rises to the level of torture. During and after this physical and mental abuse, he was interrogated, fed in formation, and forced to provide incriminating statements. He has never been advised of any right against self-incrimination.

Certain acts include being “forced to lean with his forehead against a wall and his feet over a foot away, forcing his body weight onto his forehead” and being “chained in a ‘hanging’ position for ‘two weeks without sleep.’” The motion is replete with sexual acts from guards including this incident:

At one point, the male interrogator again threatened Mr. Al Darbi with rape, forced Mr. Al Darbi to his knees, and then the interrogator positioned himself behind Mr. Al Darbi and mimicked anally sodomizing him. Mr. Al Darbi had already been subjected to numerous, unnecessary body cavity searches and rectal examinations, he had clearly been left at the unchecked mercy of his interrogators and consequently had every reason to fear that the interrogator would follow through on his threat of rape.

The defense’s procurement of clinical evidence: Al Darbi’s statements were made during conditions of “physical and mental abuse.” The defense’s application of clinical reasoning: These abusive actions meet the definition of torture.

December 18, 2008 (United States of America v. Ahmed Mohammed Ahmed Haza Al Darbi 2008b)—The prosecution responds to the defense’s above motion by stating:

The Motion to Suppress directly implicates the accused’s physical and mental status triggering the Government’s right to discovery on these issues and the opportunity to rebut the allegations. The requested relief is directly tailored by the issues raised in the accused’s Motion to Suppress. … The discovery and the right to rebut these allegations through the use of medical and psychiatric evaluations is reasonable considering the serious claims made by the accused.

The prosecution seeks access to Al Darbi’s mental health records from Guantánamo, wants him to submit to a physical and mental health examination by a medical expert chosen by the government, wants him to identify the medical experts, including the mental health expert(s), who will testify at the Motion to Suppress or whose opinions will be relied upon and their Qualifications, and wants a summary of the diagnoses of the medical experts, including mental health experts.

The prosecution’s application of clinical reasoning: Al Darbi should undergo a mental health evaluation under conditions outlined by the government.

January 6, 2009 (United States of America v. Ahmed Mohammed Ahmed Haza Al Darbi 2009)—The defense counters the prosecution’s request from December 18, 2008, since

what must be determined, which can be done through witness and/or expert testimony, is whether or not any of the treatment received by Mr. Al Darbi meets the requirements for torture set forth in the rule and, if not, whether it was coercion, the results of which are more prejudicial than they are probative. This can, and should, be done without providing the Government access to Mr Al Darbi or his mental or physical health records.

Moreover, the defense states that “such an examination by the Government carries an important risk of retraumatization and further harming Mr. Al Darbi’s wellbeing” and also cites “psychotherapist-patient privilege.”

The defense’s application of clinical reasoning: (1) The question of merit is not Al Darbi’s mental health, but whether his treatment constitutes torture. (2) A government examination could retraumatize Al Darbi.

August 29, 2012 (Office of Military Commissions 2012d)—Charges against Al Darbi were refiled and expanded: conspiracy, attacking civilian objects, hazarding a vessel, terrorism, attempt, and aiding the enemy. As of this writing, his mental health was not the focus of subsequent motions or transcripts.

Ibrahim Ahmed Mahmoud al Qosi

February 8, 2008 (Office of Military Commissions 2008a)—Al Qosi is charged with conspiracy and providing material support for terrorism by providing logistical support to Osama bin Laden and al-Qaeda.

December 19, 2008 (United States of America v. Ibrahim al Qosi 2008)—The defense motions to suppress all of al Qosi’s statements since his capture in 2001, contending that they were made under torture and coercion. Certain details are redacted, but the motion cites an article written by Michael Isikoff in Newsweek. Isikoff (2005) writes: “Al Qosi claimed they were strapped to the floor in an interrogations center known as the Hell Room, wrapped in Israeli flags, taunted by female interrogators who rubbed their bodies against them in sexually suggestive ways, and left alone in refrigerated cells for hours with deafening music blaring in their ears.”

The defense’s procurement of clinical evidence: Isikoff’s article. The defense’s application of clinical reasoning: Al Qosi’s statements were made during conditions of torture.

January 9, 2009 (United States of America v. Ibrahim al Qosi 2009)—The prosecution disputes the defense’s motion to suppress statements:

The only statements made by the Accused that the prosecution seeks to use at trial are those [REDACTED]. Neither of these statements were the product of torture or coercion. And the prosecution can make the interviewers available to the Defense and at any hearing necessary to demonstrate as much. With respect to any other statements made by the accused, the defense motion is not ripe for resolution.

The prosecution’s application of clinical reasoning: Al Qosi’s statements were not made during conditions of torture.

January 15, 2010 (United States of America v. Ibrahim al Qosi 2010a)—The defense motions for the court to compel funding for an independent mental health expert rather than use the government’s consultant:

This is a motion to compel funding for Dr. [REDACTED] to serve as a defense consultant and possibly as a witness. After the defense filed a request with the Convening Authority (CA) for Dr. [REDACTED] the CA appointed a substitute, Colonel [REDACTED] M.D., M.P.H., Medical Corps, U.S. Army. Based on Dr. [REDACTED] statements to the defense on 3 January 2010, Col. [REDACTED is not an adequate substitute as has no experience conducting forensic examinations of people who claim to have been tortured, and he has never applied the Istanbul Protocol, a widely accepted procedure for examining torture victim claims. Dr. [REDACTED] has these qualifications. On this basis alone, Col. [REDACTED] would be open to withering cross-examination by the very government who claims he is an adequate substitute for Dr. [REDACTED]. Additionally, and most importantly for the defense’s preparation of this case, there is a high likelihood that Col. [REDACTED] could not establish a rapport with the accused because he lacks several qualifications Dr. [REDACTED] has. For example, Col. [REDACTED] is still a uniformed officer; he has specifically worked for the government, not the defense, in GTMO detainee cases; and, has worked for the defense of soldiers accused of abusing detainees. These facts appear on his CV, and the defense would have to share this information with the client.

This defense motion responds to a decision by CA Susan J. Crawford to substitute Col. [REDACTED] who is a clinical psychologist rather than Dr. Xenakis whereas the defense submitted a motion for Dr. Xenakis on November 18, 2009.

[United States of America v. Ibrahim al Qosi 2010b]

The defense’s application of clinical reasoning: Al Qosi’s behaviors warrant an independent mental health evaluation to assess for the effects of torture through an expert chosen by the defense.

January 22, 2010 (United States of America v. Ibrahim al Qosi 2010c)—The prosecution disputes the defense’s reasoning:

Defense counsel’s argument for COL Malone’s inadequacy in this matter rests on little more than defense counsel’s subjective conclusion regarding the relative qualifications of COL Malone and Dr Xenakis. What little more there is consists of speculation regarding the challenges members of the United States military face in gaining the trust of alleged terrorists.

The prosecution’s application of clinical reasoning: The government’s expert should suffice over the defense’s desired expert.

January 29, 2010 (United States of America v. Ibrahim al Qosi 2010d)—Military judge Lieutenant Colonel Nancy Paul rejects the defense motion in favor the prosecution:

In the defense motion, they assert that Dr. Malone is not qualified because he will not be able to establish a rapport with Mr. al Qosi; however, Dr. Malone has yet to even meet Mr. al Qosi. In addition, while the defense asserts that Dr. Malone lacks the qualifications of Dr. Xenakis, the curriculum vitae of Dr. Malone indicates he has served as both a defense and government consultant in various proceedings, including courts martial and commissions cases. In addition, Dr. Malone’s curriculum vitae reflects he is currently serving as the Chief of Forensic Psychiatry Services at Walter Reed Army Medical Center, while Dr. Xenakis’ curriculum vitae reflects his practice and education has been primarily in the areas of child, adolescent, and family psychiatry.

Hermeneutical adjudication: The government’s expert will conduct an evaluation.

Mohammed Jawad

October 9, 2007 (Office of Military Commissions 2007b)—Jawad is charged with attempted murder in violation of the law of war and intentionally causing serious bodily injury in violation of the law of war for allegedly throwing a hand grenade into a vehicle and injuring two U.S. soldiers and one Afghan citizen.

May 28, 2008 (United States of America v. Mohammed Jawad 2008a)—The defense motions for a mental health examination “from a neutral, Pashto speaking, civilian psychologist” because Jawad “is presently suffering from one or more mental health diseases or defects, as a result of the extended and severe conditions of detention to which he has been subjected.” The defense outlines these conditions:

He has been in solitary confinement (what the government euphemistically refers to as “single-occupancy”) in a small cell with virtually no amenities for 22 to 23 hours a day. He is allowed out of his cell only to shower, or to be placed in an enclosed, covered exercise area, or for occasional medical or dental appointments. He has not seen the sun or sky more than once since February 2003.

In addition, he underwent sensory confusion: “Mr. Jawad was moved from cell to cell 112 times over a two-week period, an average of every two hours and fifty minutes. This torture program caused intense mental suffering and profoundly disrupted the senses and personality of Mr. Jawad.” The defense notes: “The extreme conditions led Mr. Jawad to attempt to commit suicide” in December 2003. These are detailed elsewhere (United States of America v. Mohammed Jawad 2008b) as “two different accounts of this suicide attempt.” One entry states that at 2307 hours “Detainee attempted self harm by banging his head off metal structures inside his cell.” Another entry states that at “approximately 2307 detainee attempted self-harm by using the collar of his shirt to hang himself from the mesh inside his cell.”

The defense reasons that torture of detainees is grounds for dismissal: “The appropriate remedy for illegal abusive treatment of a detainee is dismissal under RMC 907” (United States of America v. Mohammed Jawad 2008b).

The defense’s procurement of clinical evidence: Jawad suffered from solitary confinement and sensory deprivation, leading to suicidal acts. The defense’s application of clinical reasoning: Jawad’s psychological symptoms result from torture and should lead to dismissal of the case.

June 3, 2008 (United States of America v. Mohammed Jawad 2008c)—The prosecution files a motion detailing no objection to the defense’s request “so long as the board ordered by the Commission consists only of mental health professionals possessing the proper security clearances, both to allow the board access to the JTF GTMO facilities and to prevent the unauthorized disclosure of classified information.”

The prosecution’s application of clinical reasoning: National security must be protected throughout the 706 evaluation.

June 4, 2008 (United States of America v. Mohammed Jawad 2008d)—The prosecution counters that the Military Commissions Act allows statements obtained through torture to not be admitted, not for the case to be dismissed:

On the contrary, the MCA specifically contemplates that detainees may have been subjected to “torture” or coercive techniques in the past, and provides not for the dismissal of charges, but rather that statements obtained by torture are inadmissible, and that even statements obtained through coercion may nonetheless be admitted into evidence if the Military Judge makes certain findings about the statements, set forth in the MCA.

The prosecution’s application of clinical reasoning: Torture should not lead to dismissal of charges altogether but for specific statements to be suppressed.

June 20, 2008 (United States of America v. Mohammed Jawad 2008e)—The military judge grants a 706 evaluation. Hermeneutical adjudication: The judge agrees that Jawad’s treatment suggests a need for a mental health evaluation.

September 18, 2008 (United States of America v. Mohammed Jawad 2008f)—The defense requests experts in forensic medicine and clinical psychology “to determine, principally, what effect his lengthy confinement and treatment has had on his ability to accurately recall the events leading up to his capture and participate competently in his defense.” The defense also questions the partiality of the 706 board: “In preliminary review of the 706 Board Report, Dr. Porterfield [one of the experts sought] determined that there are significant problems with the report.” The defense’s application of clinical reasoning: The 706 board may not be neutral and other mental health experts should evaluate Jawad.

September 22, 2008 (United States of America v. Mohammed Jawad 2008g)—The prosecution counters the defense’s motion for experts:

As to Dr. Keller and Dr. Porterfield, the defense premises its entire “relevance and necessity” argument upon the unsupported facts that the accused was a juvenile at the time of his apprehension and initial interrogations, and has been subjected to torture since his apprehension and custody. There has not been one scintilla of evidence in this case that the accused was subjected to anything amounting to either torture or physical or psychological abuse. Additionally, at the time of his grenade attack the accused was 17, 18, or older. The “torture” the defense alleges occurred was at a time when the accused was 18–24 years of age—i.e., clearly not when he was a “juvenile” even by the most liberal definition.

The prosecution’s application of clinical reasoning: (1) Jawad’s conditions of confinement do not rise to the level of torture. (2) Jawad was not a minor at the time of his alleged offense. The very evidence of Jawad’s age becomes a matter of dispute.

September 24, 2008 (United States of America v. Mohammed Jawad 2008h)—Military judge Colonel Stephen Henley refuses to dismiss the case on grounds of torture, but notes:

(1) While the “frequent flyer” program was intended to create a feeling of hopelessness and despair in the detainee and set the stage for successful interrogations, by March 2004 the accused was of no intelligence value to any government agency. The infliction of the “frequent flyer” technique upon the Accused thus had no legitimate interrogation purpose.

(2) While the long term psychological impact of the Accused’s detention is unclear, the Rule for Military Commission (RMC) 706 board concluded the Accused is “not currently suffering from a mental disease or defect,” “does have sufficient present ability to consult with his lawyers with a reasonable degree of rational understanding” and “does have sufficient mental capacity to understand the nature of the proceedings against him and cooperate intelligently in his defense.” Additionally, the Accused does not require immediate medical or psychological treatment.

(3) This Commission finds that, under the circumstances, subjecting this Accused to the “frequent flyer” program from May 7–20, 2004 constitutes abusive [sic].

(4) That being said, the narrow issue before this Military Commission is whether dismissal of the charges against this Accused is appropriate for the conduct of an apparent few government agents. Answering this question does not require the Military Commission to decide as fact that this Accused was tortured. Assuming, but not deciding, that the government’s actions against this Accused produced the pain and suffering of the requisite physical and/or mental intensity and of such duration to rise to the level of “torture”, this Military Commission finds that the remedy sought by the defense is not warranted under the circumstances.

Hermeneutical adjudication: Even though Jawad’s detention circumstances were “abusive,” he does not have a mental disease or defect relevant to the facts on trial.

Mohammed Kamin

March 11, 2008 (Office of Military Commissions 2008b)—Kamin was charged with providing material support for terrorism arising from his alleged involvement with al-Qaeda.

August 29, 2008 (United States of America v. Mohammed Kamin 2008a)—The defense motions for an expert witness in forensic psychology based on Kamin’s history:

Mr. Kamin’s mental health will no doubt be relevant and a major topic of discussion at trial. BSCT Records document that Mr. Kamin was previously evaluated in 2005 due to [REDACTED]. The BSCT records indicated that an [REDACTED] was to be ruled out. In order to rule out this type of disorder, it would be important to have a follow-up evaluation to determine whether the symptoms had remitted. The defense has not been provided any records that document a follow-up was completed, so the initial diagnosis cannot have been ruled out. In addition, it is unclear whether Mr. Kamin is suffering from a serious mental disorder other than an [REDACTED].

The defense requests this evaluation since their client has rejected the commissions system and “it is unknown whether this rejection is a by-product of a mental disease or defect or whether it is a calculated decision to not cooperate to show solidarity with other detainees and protest his confinement and treatment.”

Defense’s procurement of clinical evidence: (1) The lack of a follow-up examination after a first mental health evaluation implies that Kamin still has a mental disorder. (2) Kamin’s refusal to participate in the military commission system. Defense’s application of clinical reasoning: His refusal may result from a mental disorder, warranting an independent mental health evaluation.

September 4, 2008 (United States of America v. Mohammed Kamin 2008b)—The prosecution disputes the defense’s motion for independent experts:

The Defense’s request for a forensic psychologist is premature. Any concern regarding whether the Accused is competent to make a knowing and voluntary waiver of his right to counsel, is competent to stand trial, and/or determine whether he suffers from a severe mental disease or defect or from diminished capacity should be governed by the procedures under RMC 706 and 909.

The prosecution’s application of clinical reasoning: Kamin’s behavior may result from a mental disorder that can be evaluated by a 706 board.

September 10, 2008 (United States of America v. Mohammed Kamin 2008c)—Military judge Colonel W. Thomas Cumbie orders a RMC 706 evaluation. Hermeneutical adjudication: The judge agrees that Kamin’s behavior warrants a 706 mental health evaluation.

October 3, 2008 (United States of America v. Mohammed Kamin 2008d, 2008e)—The RMC 706 reports that “the detainee refused interviews” and that “no information was obtained directly from him.” The 706 board finds no evidence to support a mental disease or defect at the time of the alleged offense or presently to explain his conduct. 706 board’s interpretation: Based on an indirect examination, Kamin does not suffer from a mental disorder.8

December 5, 2008 (United States of America v. Mohammed Kamin 2008f)—The defense motions to compel an order for Kamin’s medical records from Guantánamo after learning that these were used by the 706 board:

The government has likewise failed to fulfill its continuing duty to disclose medical records from JTF-GTMO, despite the fact that the production of the updated records requires very little effort by the government. Evidence of the availability of these records is that on 1 October 2008 the officers appointed to conduct the 706 Inquiry confirmed that they were provided the opportunity to review the updated records and were provided copies. The failure of the government to uphold its duty to disclose has heightened significance in the context of the issues that have been and are currently being litigated in the present case, namely the fact that Mr. Kamin has not been present at a hearing since the arraignment in May 2008, refuses the services of detailed defense counsel, and that a R.M.C. 706 inquiry was ordered and completed. The progression of the case thus far requires the defense to complete a full assessment as to whether Mr. Kamin is competent to stand trial, to make a knowing and voluntary waiver of his right to counsel, and/or to determine whether he suffers from a diminished capacity.

The defense’s application of clinical reasoning: The 706 board has access to mental health records that the defense team does not have and that may be relevant to the case.

January 14, 2009 (United States of America v. Mohammed Kamin 2009a)—Military judge Colonel W. Thomas Cumbie allows the defense to obtain an independent mental health expert, but not one of their choice:

Given that Mr Kamin has refused [to] attend the commission or to cooperate with his defense counsel and with the R.M.C. 706 board, the court finds little likelihood that Mr. Kamin will cooperate with a defense psychological consultant. However, there is the outside possibility that with the assistance of an expert consultant, the defense may be able to design a plan to encourage Mr. Kamin to cooperate with his defense and with a 706 board. Bottom line, the commission desires to do everything within its power to ensure [that] the accused’s mental health issues, if any, are addressed fully and completely in this proceeding. The commission finds that, under the unique facts of this case, the defense is entitled to an expert consultant in the field of clinical and forensic psychology. However, the commission does not believe that the defense has made an adequate showing that Dr. [REDACTED] and only Dr. [REDACTED] will be adequate for the defense needs.

Hermeneutical adjudication: An evaluation by the 706 board suffices over one from an independent defense consultant.

April 7, 2009 (United States of America v. Mohammed Kamin 2009b)—The defense motions to inspect the Bagram detention facility and its records:

This information will significantly contribute to the defense assessment of whether Mr. Kamin is competent to stand trial and/or waive his right to counsel. … To allow for specificity in any motion to suppress or objection to the admissibility of statements made by Mr. Kamin as being obtained by torture or the product of coercion.

Defense’s application of clinical reasoning: Kamin’s statements may have been made under conditions of torture and the defense team wants to examine these conditions.

April 13, 2009 (United States of America v. Mohammed Kamin 2009c)—The government motions that the court reject the defense motion:

The Government objects to the Defense’s request to inspect all documents and records pertaining to Mr. Kamin before they have been reviewed by national security agencies to determine, in accordance with RMC 701C(f) and MCRE 50S, if there is any protected and/or privileged information where disclosure would be harmful to national security. Once the information is deemed properly discoverable and receives the equity review, the Government will permit the Defense to inspect the records.

The prosecution’s application of clinical reasoning: National security must be maintained throughout Kamin’s case.

July 7, 2009 (United States of America v. Mohammed Kamin 2009d)—The defense motions for a second 706 hearing because of inadequacies with the first: