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Neuroethics

, Volume 11, Issue 3, pp 337–346 | Cite as

Debates over Magnetic Resonance Imaging in Mental Health Evaluations at Guantánamo

  • Neil Krishan AggarwalEmail author
Original Paper

Abstract

Ethical debates over the use of mental health knowledge and practice at the Guantánamo Bay detention facility have mostly revolved around military clinicians sharing detainee medical information with interrogators, falsifying death certificates in interrogations, and disagreements over whether the Central Intelligence Agency’s (CIA) “enhanced interrogation techniques” violated bioethical principles to do no harm. However, debates over the use of magnetic resonance imaging (MRI) in the mental health evaluations of detainees have received little attention. This paper provides the first known analysis of such debates over MRI use in the case of Abd al-Rahim al- Nashiri. Through a close reading of open-source legal documents such as defense motions, prosecution motions, judge rulings, and al-Nashiri’s mental health evaluation, debates over MRI use become interpretive contests over the very meanings of mental illness and the extent to which MRI results can verify whether he was tortured in CIA custody. Such work can revitalize interest in the neuroethics of national security.

Keywords

Magnetic resonance imaging War on terror Mental health Psychology Psychiatry Guantánamo 

The Guantánamo Bay detention facility has elicited longstanding debates over the uses of medical knowledge and practices with War on Terror detainees. After the September 11, 2001 attacks, President George Bush contended that the Geneva Conventions only applied to soldiers from nation-states, not to Al Qaeda and the Taliban’s non-state “unlawful enemy combatants” [1]. Subsequently, the Department of Justice (DoJ) constructed biomedical definitions for physical torture as “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death” and mental torture as “significant psychological harm of significant duration, e.g. lasting for months or even years” [2]. Journalists and human rights organizations have criticized military clinicians for sharing detainee medical information with interrogators to exploit physical and mental ailments [3], falsifying death certificates in interrogations at Abu Ghraib and Guantánamo Bay [4, 5], and clearing detainees medically for violent interrogations [6]. The Senate Select Committee on Intelligence corroborated these findings in its 2014 executive summary on the Central Intelligence Agency’s (CIA) Rendition, Detention, and Interrogation (RDI) Program (2002–2007), noting that CIA psychiatrists and psychologists disagreed over whether “enhanced interrogation techniques” violated bioethical principles to do no harm and constituted torture under the DoJ’s own definitions [7]. To date, no psychiatrists involved in the CIA’s program have been named, though the declassification of what is widely known as “the torture memos” from the Bush Administration [2] has revealed the identities of the psychologists who consulted with the CIA to create the RDI program.

Bioethical debates have mostly centered on whether military clinicians have a primary fiduciary responsibility to detainees as patients or to the country in preventing terrorist attacks. Civilian bioethicists have argued that the bioethical principle to do no harm with patients extends to military clinicians [8, 9, 10]. Military officials have countered by differentiating a treating clinician’s responsibility to patients from a medical consultant’s responsibility to elicit actionable information during interrogations in order to protect civilians from future harm [11, 12]. Differences over the nature of the clinician-detainee relationship also correspond to guidelines issued from professional organizations. In 2006, the American Psychiatric Association prohibited psychiatrists from participating in detainee interrogations, which it defined as “a deliberate attempt to elicit information from a detainee for the purposes of incriminating the detainee, identifying other persons who have committed or may be planning to commit acts of violence or other crimes, or otherwise obtaining information that is believed to be of value for criminal justice or national security purposes” [13]. However, psychiatrists have been able to interview detainees as long as these interactions are authorized by a court and comply with international laws against torture, as they would normally conduct forensic assessments [13]. In contrast, the American Psychological Association defended the participation of psychologists in interrogations to ensure the safety of detainees until succumbing to pressure from member activists and banning participation in 2015 [14]. President Donald Trump’s executive order on January 30, 2018 to maintain detention operations at Guantánamo as “legal, safe, humane, and conducted consistent with United States and international law” [15] ensures that bioethical debates will continue.

Compared to the nature of the clinician-detainee relationship, disputes over the role of neuroimaging in the mental health evaluations of Guantánamo detainees have received little attention. In weighing the admissibility of neuroimaging evidence, federal courts in the United States consider three rules from the Federal Rules of Evidence standard: Rule 401 which requires the evidence to be relevant, Rule 702 which governs the admission of expert testimony derived from the US Supreme Court’s opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc, and Rule 403 which balances the probative value of evidence against competing concerns of confusion and unfair prejudice [16]. Although US federal courts have been willing to admit MRI evidence to show how structural abnormalities in the brain are related to trauma, injury, or illness, there has been great disagreement about the degree to which expert witnesses can make inferences about an individual’s behaviors from MRI results [17].

This paper examines how such debates on the use of magnetic resonance imaging (MRI) evolve in the case of a Guantánamo detainee named Abd al-Rahim al-Nashiri (b. 1965). Guantánamo’s Office of Military Commissions states:

“Al-Nashiri is charged with perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, terrorism, conspiracy, intentionally causing serious bodily injury, attacking civilians, attacking civilian objects, and hazarding a vessel. The charges arise out of an attempted attack on the USS THE SULLIVANS in January 2000, an attack on the USS COLE in October 2000, and an attack on the MV Limburg in October 2002” [18].

As part of a pre-trial investigation in 2015, Guantánamo’s judge ordered al-Nashiri to receive an MRI to determine possible mitigation during sentencing [19]. Since federal law forbids War on Terror detainees from being transferred to the United States for medical treatment, it took over 2 years for an MRI machine to reach Guantánamo in September 2017 [20]. Upon arrival, the Department of Defense (DoD) announced that the machine did not work despite spending $370,000 for its transport [21]. No detainee has yet received an MRI scan, but al-Nashiri’s case has set the precedent for how detainees and their attorneys can request neuroimaging studies in Guantánamo’s unique legal environment. Since laws on basic issues such as the admissibility of evidence and the qualifications for expert witnesses differ by jurisdiction, the legal system of a specific case must be analyzed in depth to determine the implications of neuroscience within that system [22]. Prior studies have observed a growing use of neuroimaging during the guilt and sentencing phases of a trial [23], especially when defendants suffer from traumatic brain injury [24], but these cases have taken place in routine courtrooms, not Guantánamo’s unique medicolegal environment. Studies on whether presenting neuroimaging results to mock jurors mitigates sentencing for defendants show mixed results [25, 26], which may be irrelevant for Guantánamo where a military judge makes decisions without a jury. Hence, al-Nashiri’s case provides a glimpse into the use of neuroimaging at a paradigmatic site in the War on Terror. This paper is laid out in three sections: the first covers mental health services and the legal standards of Guantánamo, the second delves into al-Nashiri’s case, and the third considers the neuroethics and neurolaw of neuroimaging more broadly at Guantánamo.

Mental Health Services at Guantánamo

Guantánamo’s health system consists of treatment services and a forensic referral process when concerns about mental illness are raised as legal cases proceed through the military commissions system. By August 2006, the Behavioral Services Division at Guantánamo announced that of 450 detainees in custody, approximately 50 (11%) received mental health treatment, with the following diagnostic breakdown: 44% - personality disorders, 20% - psychotic disorders, 18% - mood disorders, 16% - anxiety disorders, and the remainder unspecified [27]. Anyone except for a psychologist participating in interrogations can refer a detainee for psychotherapy or medication management to a system with 20 clinicians – including one psychiatrist and one psychologist – and a 16-bed inpatient facility in cases of imminent harm to oneself or others [27]. Guantánamo has housed 15 detainees under the age of 16 years [28], but psychologists and psychiatrists who have consulted with juvenile detainees note a lack of child and adolescent mental health services and rehabilitative programming [29]. The Behavioral Services Division has not updated its statistics even though only 41 detainees were present at Guantánamo as of January 2018 [30].

In contrast, the forensic process for mental health evaluations has been routinely addressed through federal laws and statutes. The Military Commissions Act of 2006 (also known as “MCA 2006”) empowers Guantánamo commissions to try any “alien unlawful enemy combatant” for war crimes, with the commissions consisting of “any commissioned officer of the armed forces on active duty” [5, 31, p.]. MCA 2006 delimits the scope of mental health evaluations: “It is an affirmative defense in a trial by military commission under this chapter that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts” [17, 31, p.]. Detainees must prove that any mental disorder, if present, limited their responsibility for a criminal act: “The accused in a military commission under this chapter has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence” [17, 31, p.]. A judge directs the military commission to determine whether the detainee met this burden of defense: “The military judge shall instruct the members of the commission as to the defense of lack of mental responsibility under this section and shall charge them to find the accused— (1) guilty; (2) not guilty; or (3) subject to subsection (d), not guilty by reason of lack of mental responsibility” [17, 31, p.]. The last charge is only possible “if a majority of the members present at the time the vote is taken determines that the defense of lack of mental responsibility has been established” [17, 31, p.].

In 2006, the DoD published the Rules for Military Commissions (RMC) to specify the legal standards for evaluating a detainee’s lack of mental responsibility. Under Rule 504, a military commission can be convened by an official known as a “convening authority” such as the Secretary of Defense or an individual so designated by the Secretary [32]. Under Rule 706 – titled “Inquiry into the mental capacity or mental responsibility of the accused – a commission member, military judge, or participating counsel can apply for a mental examination [32]. A “706 Board” must consist “of one or more persons” and “[e]ach member of the board shall be either a physician or a clinical psychologist” [32, p. II-56]. The 706 Board must answer four questions:

“(A) At the time of the alleged criminal conduct, did the accused have a severe mental disease or defect? (The term “severe mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, or minor disorders such as nonpsychotic behavior disorders and personality defects.)

(B) What is the clinical psychiatric diagnosis?

(C) Was the accused, at the time of the alleged criminal conduct and as a result of such severe mental disease or defect, unable to appreciate the nature and quality or wrongfulness of his or her conduct?

(D) Is the accused presently suffering from a mental disease or defect rendering the accused unable to understand the nature of the proceedings against the accused or to conduct or cooperate intelligently in the defense?” [32, pp. II-56-57].

The board’s conclusions are circulated to the official who ordered the examination, the detainee’s confinement official, all counsel, the convening authority, and, if charges have been referred, to the military judge. The full report is released only to the defense team and medical personnel caring for the detainee, unless otherwise authorized by the convening authority or a military judge. Rule 909 allows the convening authority to hospitalize or treat the detainee if found incompetent and to reconvene the commission if competency is restored. The convening authority can also disagree with a conclusion of incompetence and continue the trial: “In making this determination, the military judge is not bound by the rules of evidence except with respect to privileges” [32, p. II-93].

Since MCA 2006’s passage, Guantánamo’s Office of Military Commissions has hosted a website (http://www.mc.mil/home.aspx) with legal documents on the laws governing trials as well as legal motions, rulings from judges, and redacted transcripts for all cases where detainees have been charged, including al-Nashiri’s. The process for requesting forensic mental health evaluations is unchanged in subsequent legal and policy documents such as MCA 2009 [33], a 2011 text on policies and procedures known as Regulation for Trial by Military Commission [34], a 2016 text on court instructions known as Military Commission Trial Judiciary Rules of Court [35], and a 2016 text that updates MCA 2009 known as the Manual for Military Commissions United States [36]. Nonetheless, detainee attorneys have raised concerns that 706 Boards do not issue guideline-based care. For example, Ramzi bin al Shibh, a detainee accused of the 9/11 attacks, was denied an independent evaluation in violation of the American Bar Association’s guidelines for capital sentencing cases, and a 706 Board ruled without examining Mohammed Kamin that his case could proceed in violation of the American Academy of Psychiatry and the Law’s guidelines for forensic evaluations recommending direct clinical exams [37]. Consequently, some have viewed mental health at Guantánamo as a “diagnostic competition” [38] where attorneys use mental illness instrumentally for legal ends, leading to “interpretive contests” [39] about the meanings of detainee symptoms. As we shall see in the next section, al-Nashiri’s case exhibits interpretive contests over the use of MRI to make claims about mental illnesses and his treatment under the CIA’s RDI Program.

In contrast to prior documents, the Manual for Military Commissions United States [36] specifies basic legal standards for the relevance and admissibility of evidence, as well as the admission of expert witness testimony, which are pertinent for defense attorneys wishing to use neuroimaging results. Rather than adopt the Federal Rules of Evidence, the manual clarifies that all questions about the qualifications of expert witnesses and standards for the admissibility of evidence are subject to the military judge’s discretion: “Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, the admissibility of evidence, an application for a continuance, whether to protect the identity of a witness… shall be determined by the military judge” [36, p. III-2]. The military judge can also exercise discretion to make decisions about the condition of facts and the probative value of evidence: “When the probative value of evidence depends upon the fulfillment of a condition of fact, the military judge shall admit the evidence upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. A ruling on the sufficiency of evidence to support a finding of fulfillment of a condition of fact is the sole responsibility of the military judge” [36, p. III-2].

Notably, the manual makes a provision for excluding evidence that was obtained through torture: “No statement, obtained by the use of torture, or by cruel, inhuman, or degrading treatment (as defined by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), whether or not under color of law, shall be admissible in a trial by military commission, except against a person accused of torture” [36, p. III-7-8]. Here, the manual defines the term “torture, or by cruel, inhuman, or degrading treatment” as “the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984, without geographical limitation” [36, p. III-10]. Herein lies a discrepancy about the definition for “torture” at Guantánamo: President Bush has written about his desire to house enemy combatants at Guantánamo and redefine physical and mental torture rather than rely on the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment. However, the Manual for Military Commissions United States applies the standard present in the US Constitution and extends this standard to Guantánamo. Legal documents from al-Nashiri’s case demonstrate how the Guantánamo military commissions have addressed questions around expert witness testimony, the admissibility of evidence, and torture in practice.

Debates over Mental Illness and MRI Use in Abd al-Rahim al-Nashiri’s Trial

Questions about mental illness first arose after al-Nashiri’s attorneys warned that he could not cooperate in his defense upon refusing to be transported to the Guantánamo courtroom in shackles. On September 28, 2011, the military commissions issued the above charges against al-Nashiri [40]. On March 9, 2012, his defense attorneys requested that he be unshackled during meetings, positing that shackles would reactivate traumas that first occurred when he was in CIA custody: “During his incarceration with the CIA, the accused was tortured while shackled. As a result of the torture, the use of restraints is a retraumatization of his torture and interferes with his communications with his counsel and in light of his behavior with counsel and in court is unnecessary” [1, 41, p.]. His attorneys suggested that he suffers from Posttraumatic Stress Disorder [PTSD]: “As a victim of torture, it is likely that the accused suffers from Posttraumatic Stress Disorder. One of the hallmarks of PTSD is the presence of ‘intrusive memories’ or flashbacks of the traumatic event… The use of shackles during legal visits acts as a reminder of these past horrors and amounts to the retraumatization of the torture. Furthermore, this retraumatization significantly interferes with the accused’s ability to assist in his defense” [5, 41, p.]. In response, the prosecution disputed that al-Nashiri’s mental illness had been established as a relevant fact as defense attorneys had suggested, motioning for access to his mental health records: “Because the defense has placed the mental health of the accused at issue, it waived any potential patient-psychotherapist privilege protecting the accused’s mental-health records from disclosure” [2, 42, p.]. al-Nashiri’s attorneys disputed that mental illness was relevant to his trial: “The defense will not put on evidence purporting to diagnose Mr. Nashiri nor otherwise make mental health claims beyond the common sense and readily perceivable traumatic effects that a human being would suffer under prolonged torture” [7, 43, p.]. A request to remove shackles becomes an interpretive contest over the very nature of PTSD, “common sense” psychological responses to torture, and whether such “common sense” would need to be established through the evidentiary rules of Guantánamo’s military commissions.

The request for a mental health evaluation also becomes an interpretive contest over the intent behind al-Nashiri’s statements. The request for a 706 Board evaluation was initiated after prosecution attorneys highlighted in November 2012 that al-Nashiri said, “I might be going under threats so I don’t come here and talk about things” and “My nerves are also bad” in explaining why he had refused to attend all of his court hearings [44]. al-Nashiri’s attorneys objected to the 706 Board evaluation, stating that just because he suffered from PTSD did not mean that he could not participate in his defense [45]. In February 2013, the presiding judge ordered that al-Nashiri receive a 706 Board evaluation [46]. On March 18, 2013, the 706 Board found that al-Nashiri could understand his proceedings, cooperate in his defense, and qualified for the diagnoses of PTSD; Major depressive disorder, recurrent, moderate, chronic; and Narcissistic, antisocial, and histrionic personality features [47]. The 706 Board did not address whether al-Nashiri, at the time of his alleged criminal conduct and as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or wrongfulness of his conduct.

Debates over MRI use began upon release of the 706 Board’s results. In a single motion, defense attorneys attempted to establish the expertise of an internist named Dr. Sondra Crosby and to articulate the need for neuroimaging in June 2014. First came a written declaration in which Dr. Crosby established her expertise, which defense attorneys included in their motion:

“I was accepted by this Commission as an expert in the field of diagnosing and treating torture survivors on 24 April 2014. I am an internist, licensed by the Commonwealth of Massachusetts, with experience in treating hundreds of victims of torture. I have seen Mr. al-Nashiri on three occasions, totaling over 30 h. My examinations consisted of (1) taking torture histories, (2) inventorying symptoms, and (3) conducting physical examinations. I can say, to a reasonable degree of medical certainty, that Mr. al-Nashiri is a victim of torture. I can also say, to a reasonable degree of medical certainty, that Mr. al-Nashiri suffers from chronic, complex Post-Traumatic Stress Disorder (PTSD) as a result of his abuse” [11, 48, p.]

Next, defense attorneys used her expertise to petition the court for an MRI of al-Nashiri. Here, defense attorneys attempted to establish several conditions of fact – that al-Nashiri has suffered torture, has a diagnosis of PTSD, and that such torture has led to memory loss – in arguing for him to receive an MRI scan:

“She [Dr. Crosby] can say, with a reasonable degree of medical certainty, that Mr. Al-Nashiri is a victim of torture; suffers from chronic, complex Post-Traumatic Stress Disorder (PTSD); and has memory loss associated with his torture. But Dr. Crosby cannot characterize the extent of Mr. Al-Nashiri’s memory loss or identify other contributing causes to his memory loss, such as traumatic brain injury, without further testing. Therefore, Dr. Crosby recommends that Mr. Al-Nashiri undergo brain imaging, i.e. an MRI to determine the extent of the damage done to his brain, the scope of his memory loss, and the possible existence of a traumatic brain injury (TBI)” [1, 48, p.].

In its rebuttal, prosecution attorneys challenged the relevance of MRI evidence to al-Nashiri’s case by disputing the assertions made by his attorneys. First, they questioned how an MRI scan would alter al-Nashiri’s treatment: “The defense fails to show that an MRI, or any other diagnostic scan, would change the accused’s medical treatment” [1, 49, p.]. In fact, prosecution attorneys invoked the expertise of al-Nashiri’s clinicians who did not think that there was a medical indication for an MRI: “According to his current treating medical team, an MRI – which is not available onboard U.S. Naval Station Guantanamo Bay – is not clinically required to provide the accused with appropriate medical treatment” [3, 49, p.]. Furthermore, prosecution attorneys held that the defense did not raise al-Nashiri’s mental illness as a condition impairing his competence to stand trial: “The defense does not allege, and has not alleged, that the accused is not able to participate in his defense at the present time – were that the case, the defense would obliged to file a motion under R.M.C. 909, which it has not” [5, 49, p.]. Finally, the prosecution challenged the relevance of an MRI scan in clarifying the source of al-Nashiri’s symptoms: “The accused has been diagnosed with PTSD by an R.M.C. 706 Board and by the defense’s own expert. Yet, there is no evidence that an MRI would show that any potential memory loss was caused by PTSD” [8, 49, p.]. By offering a series of counterarguments, the prosecution held that MRI results would not be relevant to al-Nashiri’s current diagnostic and treatment planning.

In response, al-Nashiri’s attorneys disputed two points in the prosecution’s motion, underscoring how the reasons for ordering an MRI have also become interpretive contests over the nature of mental illnesses and the evidence used to support such diagnoses. First, they emphasized that an MRI scan could confirm abuse by the CIA: “The defense is not request[ing] an MRI to confirm Mr. Al-Nashiri’s PTSD diagnosis. Rather, the defense is requesting an MRI because it believes that Mr. Al-Nashiri received a traumatic brain injury (TBI) from CIA agents while in the custody of the CIA from 2002 to 2006.” [2, 50, p.]. The cause of the TBI here is crucial since it establishes the fact that al-Nashiri’s treatment under the CIA’s RDI program could constitute torture or cruel, inhuman, or degrading treatment. MRI results could then be used to mitigate sentencing: “The existence of severe, possibly personality-alternating injury while in U.S. custody prior to trial would clearly be mitigating evidence. If convicted, it would demonstrate both the punishment he has already garnered for his crimes and the lack of adequate medical care administered after his mistreatment” [2, 50, p.]. In contrast to the prosecution’s arguments, defense attorneys wanted to use MRI results to claim that a TBI could have resulted from the CIA’s enhanced interrogation techniques – which would constitute physical torture under the Bush Administration’s definition of “serious physical injury” [2] – and that al-Nashiri’s subsequent medical care has been inadequate. MRI therefore becomes symbolic of technology’s capacity to reveal the traces of CIA abuses in the War on Terror and their mental health impacts on detainees.

On April 9, 2015, the judge accepted the defense’s arguments that al-Nashiri should receive an MRI scan to determine possible mitigation in sentencing. First, the MRI scan could produce evidence of his abuse in CIA custody: “The Accused’s alleged past or current brain trauma, to include memory loss as a result of prior abuse by the Government, if true, such facts would indeed be mitigating factors and well within the broad scope of R.M.C. 1004” [3, 51, p.]. Second, any evidence of trauma would verify that al-Nashiri has, in effect, paid for his crimes: “The Defense’s position that such evidence may ‘buttress the defense’s arguments to suppress past statements of the accused, support arguments for pre-trial confinement credit, and demonstrate to members the extent of the punishment already administered to [the Accused]’ is persuasive” [3, 51, p.]. On October 13, 2017, the government also allowed MRI to be used with the five detainees accused of the September 11, 2001 attacks [52]. At the time of this writing in May 2018 – nearly 3 years after the initial ruling for al-Nashiri – no detainee has received an MRI scan.

The Neuroethics and Neurolaw of Neuroimaging at Guantánamo

This article has situated debates over MRI use in the case of Abd al-Rahim al-Nashiri within Guantánamo’s distinctive mental health and legal system. A longitudinal view unearths the interpretive contests over his behaviors and mental illnesses in general: shackles which elicit alarms of disciplinary intransigence or severe retraumatization, the extent to which it is “common sense” or needs to be established as a legal fact that PTSD emerges after trauma, and the defense team’s initially wavering positions on connecting al-Nashiri’s mental illness to his legal proceedings which was only resolved to the military judge’s satisfaction after a 706 Board evaluation. Contrary to the Rules for Military Commissions, the 706 Board did not address the fundamental question of whether al-Nashiri experienced a mental illness at the time of his alleged criminal conduct and was therefore unable to appreciate the nature and quality or wrongfulness of his actions. This discrepancy suggests that Guantánamo’s military commissions function with a degree of arbitrariness in which all of the Rules for Military Commissions are not implemented in actual practice.

In 2014, the Senate Select Committee on Intelligence released its executive summary, which declassified instances of al-Nashiri’s treatment by the CIA. He was waterboarded three times, ordered in standing stress positions for 2.5 days at another rendition site, and intimidated with a pistol at his head while blindfolded [7]. From June 2003 to September 2006, al-Nashiri was transferred to five facilities and diagnosed by CIA psychologists with an anxiety disorder and major depressive disorder [7]. In July 2005, CIA Headquarters even expressed concern over his continued state of depression and uncooperative attitude” [7, p., 140]. These details surfaced after the prosecution and defense teams debated the terms of MRI use, and al-Nashiri’s case exemplifies a trend that psychiatrists have warned against: the assumption that brain imaging can unequivocally demonstrate proof of causality in isolation from all other types of evidence because of the social authority that is customarily accorded to medical technologies [53].

From this perspective, it is worth considering the probative value of neuroimaging results as they relate to al-Nashiri’s treatment in the CIA’s RDI program. First, if al-Nashiri’s MRI results showed evidence of TBI, how would that confirm evidence that he was abused in CIA custody? It seems that defense attorneys and the trial judge have not considered the possibility that any neuroanatomical lesions could have resulted from his alleged attacks in 2000, 2002, or other acts of militancy. Second, would MRI results not showing evidence of TBI undermine claims about the severity of his abuse in CIA custody? The Bush Administration redefined physical torture as “impairment of bodily function [2],” and enhanced interrogation techniques were designed not to leave biological traces of end-organ damage [7]. Hence, there is no necessarily direct relationship between the intensity with which enhanced interrogation techniques were used and their subsequent detection through MRI results. In this sense, the defense and prosecution teams are arguing over the probative value of MRI results in al-Nashiri’s case, with the defense contending that such results could show evidence of memory loss resulting from a TBI when al-Nashiri was abused in CIA custody and the prosecution casting doubts that his memory loss is linked to a diagnosis of PTSD. If MRI results revealed evidence of gross trauma that could be interpreted as torture while al-Nashiri was in CIA custody, it is possible that his attorneys would motion to declare any statements that he made then to be inadmissible on grounds of being obtained by the use of torture, or by cruel, inhuman, or degrading treatment, as his judge acknowledged.

It also remains to be seen how the military judge will make decisions on the qualifications needed for interpreting al-Nashiri’s neuroimaging results. Based on Daubert v. Merrell Dow Pharmaceuticals, Inc., federal judges must assess whether a testimony’s reasoning or methodology is scientifically valid and applies relevantly to facts at issue, which is difficult to apply for neuroscientific results that are often about groups instead of individuals and obtained in controlled laboratory conditions rather than real world circumstances [54]. The qualifications needed to interpret neuroscientific findings and make inferences about individual-level behaviors remain unspecified in forensic psychiatry since psychiatrists are not typically trained in neuroradiology and neuroradiologists are not trained in clinical psychiatry [55]. In a systematic review of all civil cases using MRI results until since the Daubert standards were introduced, attorneys have defined qualifications for expert testimony based on board certifications, current positions in relevant fields, years of experience in the field, estimated number of MRI-based diagnoses and treatments conducted, and references to supporting medical literature, with no clear trends on how courts assessed whether a testimony’s reasoning or methodology was scientifically valid; notably, basic relevance was not judged to be in doubt for 80% of the cases [56]. Guantánamo’s laws grant military judges wide latitude to determine the qualifications needed for providing expert testimony, and no prosecution or defense motions have been filed yet to nominate experts who can interpret al-Nashiri’s results.

More generally, legal debates over MRI use at the Guantánamo Bay detention facility provide an opportunity to reconsider an older scholarship on neuroscience and natural security through empirical data. In an early contribution, Turhan Canli and colleagues questioned who would retain ownership over neuroimages of people for whom the government classifies information [57]. This question remains pertinent to detainees whose health information has already been shared with interrogators as part of the CIA’s RDI Program; it is unlikely that Guantánamo’s military commissions system would allow al-Nashiri and other detainees to prevent release of their MRI results if they chose not to, and Guantánamo’s online database of documents allow us to analyze if this issue arises in any proceedings. Some observers strongly oppose using medical technologies to advance national security interests due to concerns of violating “principles of medical professionalism that require physicians to always act in the best interests of their patients” [23, 58, p.]. However, physicians in forensic contexts do not establish fiduciary interests to patients – their fiduciary interest is to the process of answering a legal question, and principles of medical professionalism emphasize honesty and objectivity to this process [59, 60]. Finally, the injunction that “neuroscientific techniques should not be applied to judicial decisions at all” [37, 61, p.] is outmoded because neuroscientific results are increasingly used in American courts [23, 24]. Instead, a more contemporary agenda could examine what claims attorneys make, how neuroscience is invoked as an authoritative body of knowledge, and how neuroscientific data are mobilized along with other types of evidence in judicial decisions during the War on Terror. The MRI results of Guantánamo detainees can advance this effort, if and when they appear.

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Copyright information

© Springer Nature B.V. 2018

Authors and Affiliations

  1. 1.Columbia University Department of Psychiatry and the New York State Psychiatric InstituteNew YorkUSA

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