Case Coverage: Al Nashiri Case

2/4 Nashiri Hearing #6: A Medical Examination with Shackles, Guards, or Neither?

By Benjamin Wittes
Monday, February 4, 2013, 6:44 PM

The last motion of the day is AO135, a defense motion to allow a doctor named Sondra Crosby to do an examination of Nashiri without either guards present or the patient shackled. Reyes explains that she’s been retained to conduct a physical examination of Nashiri to discern the effects of his torture. But JTF-GTMO wants her to do the examination while Nashiri is restrained—or, in the alternative, with three guards present. She just can’t do that, he says, consistent with her professional judgment.

So you want a private, unshackled exam with no guards present, asks the Judge? Yep.

Is Dr. Crosby willing to sign a waiver? Yep

Is she willing to be observed by video (but not audio)? Yep.

And with guards outside of the chamber? Yep.

Maj. Chris Ruge---a new face for the prosecution---argues that the judge should defer to reasonable security arrangements by the facility commander. They’ve already made such an arrangement. And the defense is not asking for a little more. They’re asking for him to turn this into something the facility commander considers a completely unacceptable risk. He’s not just responsible for Dr. Crosby’s safety, but for the accused’s safety, and the guards’ safety.

Judge Pohl responds that this witness was approved by the Convening Authority and that in the witness's professional opinion, these are the conditions she needs to conduct the examination. She’s the only person at risk, he notes.

Ruge responds that he very much disagrees that she’s the only one at risk. And the fact that she’s been appointed as an expert to do the examination doesn’t mean reasonable limits can’t be placed on her performance of that function. She couldn’t say, for example, that she needs to do this in a meadow. There have to be reasonable limits. And in this case, the commander has looked at the risks and found what she proposes inherently unsafe. She’s elevating her privacy and the detainee’s over all else, he argues, and that’s not consistent with the case law.

Reyes responds that this is not an issue about privacy. It’s an issue about retraumatization. Dr. Crosby can’t conduct her exam in the manner JTF-GTMO proposes without causing retraumatization. This government held a gun to Nashiri’s head while he was naked and shackled. Dr. Crosby’s examination is inherently invasive. Nashiri may have to be unclothed. Do we really want to it while he’s shackled too? She just can’t do it without causing retraumatization. She’s done this numerous times in the past at Guantanamo without shackling the detainee.