Rising 3L American University Washington College of Law student Mike Orlando represented NIMJ as an official observer in Guantanamo Bay this week. Here is his initial report:

The latest hearing in Noor Uthman Muhammed’s military commission convened yesterday morning. The Accused did not attend, and the hearing’s first few minutes were spent establishing that Noor’s absence was, indeed, knowing and voluntary. The hearing was set to discuss discovery, issues regarding the continuity of Noor’s representation by MAJ Amy Fitzgibbons, and a defense motion for the appointment of a psychological expert.

However, by the time the hearing began, the defense and the government had made sufficient progress regarding the discovery issues that neither party desired to argue those issues in court. MAJ Fitzgibbons’ status as one of Noor’s counsel was resolved in the days leading up to the hearing. MAJ Fitzgibbons had been taken off of Noor’s case by the Army when she changed jobs within the service. A new agreement allows MAJ Fitzgibbons to remain as Noor’s defense counsel. The only issue left to discuss was the defense motion to appoint a psychological expert consultant.

The court heard first from the defense, which made a point of asking for Dr. Ghannam specifically. LCDR Doxakis, the other military counsel assigned to Noor’s case, outlined several reasons for appointing this expert. First, the defense argued that Noor may be suffering from Post-Traumatic Stress Disorder and depression as a result of the “unique” conditions of confinement and interrogation to which Noor had been subjected. LCDR Doxakis also noted that Noor has been prescribed psychiatric medication, although there is no evidence he received a psychiatric evaluation. The second reason LCDR Doxakis cited for appointing Dr. Ghannam to the case was that Noor suffers from chronic pain, and that this could be a symptom of an undiagnosed mental health problem. Third, Dr. Ghannam would be utilized to assess the voluntariness of Noor’s statements made while under interrogation. In addition, Dr. Ghannam might be used in the sentencing phase of the commission to testify in mitigation, should Noor be convicted. LCDR Doxakis noted that Noor’s statements were the lynchpin of the government’s case against him, and that an expert was needed to adequately prepare for the introduction of those statements by the government. The defense noted that Dr. Ghannam was uniquely qualified to serve as an expert, because he had previously worked with detainees released from Guantanamo and speaks Arabic. Finally, the defense asked that Dr. Ghannam be pre-approved to provide 200 hours of work, so as to avoid the necessity of having a hearing to approve work every time the defense needed it.

The government took the position that the defense had not made a sufficient showing to support their request for an expert to be attached to their team. LCDR Arthur Gaston, the lead counsel for the government, also asserted that the motion should not be granted because the expert’s help in developing a theory of the case alone did not warrant spending taxpayer dollars. LCDR Gaston then argued that, if the defense could assert specifics about the case, that an examination should be made at an RMC 706 hearing to determine mental competency and responsibility.

The defense responded that they had provided enough specific information in their motion to support the appointment of a psychological expert and that the government had been given adequate time to suggest an alternative to Dr. Ghannam, which it was unable to do. With that, the judge announced that she would take the motion under advisement and rule at a later date. The next hearing in Noor’s case will take place in late September.

For a more in-depth analysis of this hearing, look for the next installment of NIMJ Reports from Guantanamo.

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