Court sets up showdown over outside health review of Guantánamo prisoners
By Carol Rosenberg
A federal appeals panel refused on Tuesday to delay a court-ordered, independent medical examination of a mentally ill prisoner who was tortured at Guantánamo Bay, Cuba, to decide whether he should be repatriated to psychiatric care in Saudi Arabia.
The decision in the case of Mohammed al-Qahtani by the U.S. Court of Appeals for the District of Columbia Circuit sets the stage for a showdown between the Trump administration and a federal judge over outside evaluation of health care at the prison, which holds 40 people.
Justice Department lawyers have warned that the first use of a mixed medical commission — one doctor from the U.S. Army and two from a neutral country chosen by the International Red Cross and approved by the United States and Saudi Arabia — would be disruptive and unleash more requests by other prisoners.
Al-Qahtani, who is in his 40s, suffered an acute psychotic break attributed to schizophrenia in his homeland long before he was taken to Guantánamo. His lawyers argue he is too profoundly ill to be treated by U.S. military medical personnel there, and requires inpatient care in Saudi Arabia.
In March, Judge Rosemary M. Collyer of U.S. District Court ordered the government to establish a mixed medical commission to evaluate al-Qahtani and his claim of inadequate treatment. She said she would honor the panel’s recommendation and order his release if it concluded repatriation was in his best medical interests.
She has since retired. Judge Ellen Segal Huvelle took up the case in August and she renewed the order, which comes as the coronavirus pandemic has twice prompted the International Red Cross to cancel travel to the remote base in southeast Cuba.
The order has rattled the Defense Department, which considers the Guantánamo detention center its domain and any Red Cross role as advisory. The current prison commander, Rear Adm. Timothy C. Kuehhas, predicted in a court filing in April that the detainees would exploit the creation of a mixed medical commission “to undermine their health or injure themselves,” to seek medical repatriation, and “jeopardize the safety of the guard force.”
But the three-judge panel at the circuit appeals court ruled that the decision to conduct a fact-finding in the context of a habeas corpus petition was not subject to review by the higher court. The judges — Karen LeCraft Henderson, Judith W. Rogers and David S. Tatel — added that, even if it was, the government did not demonstrate in its filings that conducting a mixed medical commission at Guantánamo “might have a ‘serious, perhaps irreparable, consequence.’”
The makeup of the panel was entirely different from a three-judge panel in the same court that found last month that Guantánamo detainees are not entitled to invoke the due process protections of the Constitution, suggesting that the administration might ask the full court to consider the question.
Lawyers for al-Qahtani, and a psychiatrist who was consulted on the case, made a novel argument for enacting an Army regulation that includes medical-repatriation provisions of the Third Geneva Convention for prisoners of war. Their position is that al-Qahtani can only be effectively treated in his homeland.
Most claims of torture of Guantánamo detainees center on what happened in the CIA prison network before their transfer to military custody. But leaked documents show that al-Qahtani was subjected to two months of continuous, brutal interrogations at Guantánamo’s Camp X-Ray — sleep deprivation, dehydration, nudity and being menaced by dogs — while under the care of military medics from the same prison operation that provides his medical care now.
The Defense Department views Guantánamo detainees as unprivileged enemy combatants, not classic prisoners of war, and therefore not entitled to the mixed medical commission.
A top Defense Department responsible for detainee affairs, Steven W. Dalbey, wrote in a declaration in May that he interpreted the Army regulation for a medical commission to mean al-Qaida, not Saudi Arabia, would have a say in approving the foreign doctors. That would be at odds with the government’s policy “of not negotiating with terrorist groups,” he added.
In May, lawyers for another prisoner, Ammar al-Baluchi, who is accused of conspiring in the Sept. 11, 2001, terrorist attacks, wrote Defense Secretary Mark T. Esper asking him to arrange a similar independent medical evaluation.
His lawyers argue that al-Baluchi, whose uncle is accused of being the mastermind of the Sept. 11 attacks, Khalid Sheikh Mohammed, suffers from post-traumatic stress disorder and a traumatic brain injury as a result of his torture by the CIA. Esper has not responded to the request, al-Baluchi’s lawyer, James G. Connell III, said on Tuesday.
Al-Qahtani has been portrayed as a would-be 20th hijacker in the Sept. 11 attacks. He tried to enter the United States at Orlando International Airport in the summer of 2001 and was turned away by a border agent. He was captured after the attacks fleeing Afghanistan and was sent to Guantánamo, where a senior Pentagon official concluded his torture made him ineligible for trial in the Sept. 11 case.