Case Coverage: Al Nashiri Case

2/4 Nashiri Hearing #4: Wherein We Turn to Nashiri's Competence

By Benjamin Wittes
Monday, February 4, 2013, 5:56 PM

Next stop is AO140, the government’s motion for a competency board to examine Nashiri as a consequence of his previous colloquies with Judge Pohl.

CDR Andrea Lockhart explains that under Rule 706, such an inquiry is appropriate whenever any party comes to question the ability of the defendant to participate in his defense. The prosecution has come to have questions on this score, first, because the defense has asserted that Nashiri suffers from long-term post-traumatic stress disorder. Moreover, when he did a colloquy with Judge Pohl earlier, Nashiri made statements that gave the government concerns about alleged threats against him in detention---threats the government believes are fantasies.

A 706 inquiry, Lockhart stresses, is done by a neutral body of board-certified doctors. This board does not work for the prosecution or the defense, and its results do not get disclosed---except in summary---to the prosecution, which cannot use it except in rebuttal of defense attempts to do so. She and Judge Pohl have a lengthy exchange about the nature of the board, in which she objects to all defense efforts to influence the nature, mandate, and composition of the board. How long will this process take, Judge Pohl asks? After the court’s order, she responds, about three to four weeks. She notes that a request for a 706 inquiry will normally be granted unless frivolous or not made in good faith.

Kammen responds that this issue arose because Nashiri made statements that the government doesn’t believe are true about his treatment. Since they don’t believe the statements are true, the prosecutors are asking for the 706 board. But that brings up the need for discovery. Because if the statements are true, that would belie their request for 706 evaluation.

The evaluation is unnecessary, he says, because there’s no question of Nashiri's competency for trial or of his mental state at the time of the office. Yes, we say he has long-term PTSD. But so what? We don’t claim that at the time of the offense, there were any mental health issues. And we have never suggested that in terms of the very minimal requirements for competency, Nashiri is not competent. Judge Pohl reminds him that under military practice, either side can request a 706 board. Yes, Kammen says, but I don’t know of anything about Nashiri’s statements that would give anyone a reasonable suggestion that he’s not competent to stand trial. So if we don’t allege insanity and we don’t allege incompetence, and based only a statement on his part that might be true, that’s not really a good faith basis to look into his competence.

But what’s the problem, Pohl wants to know? You get the full report to do with what you like. The prosecution gets a one page summary. So if it helps your case, you use it, and if it doesn’t, you don’t. Kammen responds that he doesn’t trust the Convening Authority not to appoint hacks. And what if the document then becomes discoverable? This suggestion produces an exchange with Lockhart in which Judge Pohl tries to clarify the circumstances under which the report might become discoverable. They agree, in essence, that---as Judge Pohl puts it---the defense holds the keys to the report.

Kammen expresses one more concern---that the examination might interfere with the examination by his own experts---but the writing is on the wall that Judge Pohl is going to grant the government’s request. And besides, the whole thing does look like a pretty good deal for Kammen. Especially because, as he points out, the defense’s understanding is that the proceedings stop while the 706 review is under way. And the defense has just spent the entire morning trying to abate the proceedings.

Judge Pohl clarifies with Lockhart that she is not seeking to question Nashiri’s mental responsibility at the time of the offense, merely his competency now. And he clarifies as well that she understands that the proceedings will stop if he orders the review. She does. There’s really only one last thing separating the parties on this. Kammen wants Judge Pohl to hear from a potential witness, Vincent Iacopino, a doctor who works with torture victims, on what the 706 board should focus on and how it should proceed. The government does not. Kammen describes Iacopino as one of world’s leading authorities on victims of torture. He is one of authors of the Istanbul Protocol. He can certainly advise the court, if you’re going to do this, about the qualifications of the people you should appoint, Kammen argues. To give you a guide as to how this should work, he tells Judge Pohl, you should hear from Iacopino first.

Judge Pohl asks Lockhart whether Iacopino’s testimony would be useful. She says it is not relevant. The Istanbul Protocol, she notes, is about ensuring effective documentation for bringing perpetrators of torture to justice. That has nothing to do with a 706 inquiry into Nashiri’s competence to stand trial.

Judge Pohl announces a break before he turns to this question and another involving an expert medical examination.