The Guantanamo prisoner who is accused of plotting the bombing of the USS Cole suffers flashbacks, memory loss, and confusion from his torture by the CIA, a constellation of conditions that leave him mentally unfit for trial, a forensic psychiatrist testified this week.
Dr. Terry Kupers said he concluded that the mental illness of defendant Abd al-Rahim al-Nashiri, 61, coupled with brain damage that is visible on an MRI scan that was taken at Guantanamo in 2017, make him unable to competently assist in his own defense and understand the court proceedings against him.c
Al-Nashiri, a Saudi citizen, is accused of having a key role in the suicide bombing of the U.S. Navy warship off Aden, Yemen on Oct. 12, 2000. Seventeen U.S. sailors were killed in the al-Qaeda attack, and dozens more were wounded. Jury selection in the case is now scheduled to start Monday, Nov. 2.
Kupers was testifying this week, via video from California, as the first of up to five medical witnesses as part of an eve-of-trial competency hearing ordered by the judge, Army Col. Matthew Fitzgerald.
Al-Nashiri’s lawyers recently presented the judge with two expert opinions, including Kupers’, that declare the defendant mentally incompetent. In response, the judge ordered a military evaluation called a Sanity Board to be conducted. The Army sent a psychiatrist, Maj. Anthony Ralston, who found al-Nashiri fit for trial. Neither opinion has been made public.
Each psychiatrist spent a week at the base, talking to the prisoner and reading medical charts and other classified documents to draw their contrary conclusions.
Al-Nashiri’s mind is so scattered, Kupers said, that the doctor quickly abandoned the idea of administering a baseline, 20-question test used by mental health experts to determine whether a defendant understands enough of what is going on in court to assist in his own defense.
“He cannot track what’s going on in the courtroom,” Kupers said.
In 2013, two years after al-Nashiri was first charged, a military medical panel diagnosed al-Nashiri with Post Traumatic Stress Disorder and depression but declared him competent to face trial. He has been attending pretrial hearings since then, sitting passively in court with a headset offering translation of the proceedings or watching on a screen in a holding cell near the court. Many hearings put a focus on his four years in CIA custody, 2002-06.
In 2023, an earlier judge suppressed his confessions at Guantanamo as tainted by his torture, which included beatings, waterboarding, being kept naked, and threatened by revving a drill near his hooded head. Kupers said he diagnosed al-Nashiri with severe, chronic PTSD, multiple traumatic brain injuries, a neuro-cognitive disorder, and major depressive disorder.
The prisoner does not believe he is ill, Kupers said. But the doctor said five hours of conversations with the assistance of a trusted translator, as well as an examination of medical records and classified material, showed al-Nashiri suffers from memory loss and confusion that at times prevent him from linear thought and collaborative conversations.
Kuper listed a series of behaviors that underpinned his diagnoses:
- Al-Nashiri needs the lights left on in his solitary cell around the clock because he cannot sleep in the dark, a condition the doctor linked to a period when CIA interrogators kept him in a dark, cramped wooden kennel-like box and would rattle and pound on it from time to time.
- He has cut holes in a privacy curtain that guards installed near the toilet in his cell because he finds sitting behind it claustrophobic.
- He cannot follow his lawyers’ explanations of ongoing proceedings. When consulted on defense strategy, including whether he would plead guilty to avoid a death-penalty trial, he consistently replies “You decide.”
- He is prone to sudden disruptive outbursts when in the company of other former CIA prisoners on his cellblock.
- He has dementia-like deficits, does not recognize guards who should be familiar to him and has forgotten the names of lawyers with whom he has spent long stretches, and previously greeted in court with effusive hugs and handshakes.
- Heather Holmes, a psychologist who consulted on the case for the defense, said her first meeting with the prisoner was cordial and then in the next meeting, he yelled, cursed, and ranted for two hours. His hands trembled as he shouted his distrust of his lawyers and the guards.
A prosecutor questioned Kupers on whether the prisoner might be malingering, or tailoring his answers to the psychiatrist’s questions to elude justice. Kupers said the symptoms demonstrate his diagnoses. On a question from Allison Miller, the prisoner’s capital defender, Kupers said al-Nashiri does not acknowledge his mental disorders or deficits.
The two psychiatrists–Kupers and Ralston–visited on very different weeks.
Kupers testified that he observed the prisoner during a pretrial proceeding from the back of the court and spent nearly six hours with him in three separate meetings in an oversized holding cell near the courtroom. He also visited Camp 5, a maximum-security prison where all 15 prisoners are held at Guantanamo, and al-Nashiri showed him around.
Ralson visited during a week when there were no court hearings and so questioned al-Nashiri at the prison, not at the courthouse.
For his 10- to 15-minute ride to court, prison doctors medicate al-Nashiri with an anti-nausea drug to prevent him from vomiting on himself, and then give him a stimulant meant to treat Attention Deficit Hyperactivity Disorder, ADHD, to perk him up to participate in the proceedings.
Prosecutors have described the cocktail as addressing motion sickness. Defense lawyers have said that traveling in the windowless security van gives the prisoner flashbacks to periods of his torture, and one doctor suggested he is suffering vertigo related to a CIA “enhanced interrogation technique” of ramming a prisoner’s head into a wall to disorient him. The judge rejected a request from al-Nashiri’s lawyers to let him spend trial nights at the court complex, in an oversized, wheelchair-accessible holding cell.
This week’s testimony also put a spotlight on one of the longer-hidden practices the CIA used in its overseas network of black sites: rectal feeding.
Earlier medical testimony showed it was done to al-Nashiri in 2004. To carry it out, agency personnel used a tube that is designed to be put in a patient’s windpipe and instead, inserted it into al-Nashiri’s anus. Using a syringe, they injected a protein-enriched nutritional shake into his body.
The topic triggered sharp exchanges in court between the prosecutor and psychiatrist over whether it was torture or a sound medical response to hunger striking.
Navy Cmdr. Clayton Trivett, the lead prosecutor in the Cole case, told Kupers that two former presidents, James Garfield in 1881 and William McKinnley in 1901, were rectally rehydrated after they were both shot by assassins.
Kupers replied that one can be hydrated through a rectum but not nourished. He said the use of it on al-Nashiri served no medical purpose and was done without the patient’s consent. He called using the technique sadism in the guise of responding to a hunger strike and torture in the form of rape.
Trivett asked if the doctor believed that CIA staff carried it out “for the sexual gratification of those who did it.”
Kupers responded that rape is about power, not sex.
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