Pentagon blocks investigation into tortured Guantánamo prisoner

WASHINGTON – In his final days as Secretary of the Army, Ryan D. McCarthy thwarted a federal judge’s order to independently examine a mentally ill prisoner in Guantánamo Bay who had previously been tortured, the Justice Department said Friday.

The lawyers of the prisoner Mohammed al-Qahtani (45) had received orders in March that two foreign doctors and one from the US Army should examine the man in accordance with an army ordinance to determine whether he was going to his home Saudi Arabia for psychiatric purposes. Arabia should be returned care.

The Department of Defense has not allowed such a medical review since the detention center was set up in January 2002, and the order should become an early test for the Biden government as it contemplates resuming the Guantánamo release.

But on Friday, Justice Department attorneys told the U.S. District Court in Washington that Mr. McCarthy had signed a two-page memorandum on Monday excluding prisoners in Guantánamo the regulation that was the basis of the court order.

In March, Judge Rosemary M. Collyer ruled that the ordinance required a medical review and that she would order it if doctors found Mr. Qahtani’s return to Saudi Arabia was in his best interests.

The order rocked the Department of Defense, which has been fighting for nearly two decades to prevent civil courts from deciding questions about the detainees. Officials warned that others of the 40 detainees currently detained would seek medical repatriation upon examination.

Judge Collyer has since retired and another judge, Ellen Segal Huvelle, upheld the order in August. Over the next month, an appeals court turned down a government asking to postpone the exam, leaving the Trump administration with a dilemma: allow the first crucial external assessment of a Guantanamo detainee, or as previous administrations have done, to To avoid court orders to release a detainee Voluntarily transfer Mr. Qahtani to a mental hospital in Saudi Arabia.

Nor did it cite restrictions in Guantánamo during the coronavirus pandemic.

Given Mr McCarthy’s decision to amend the regulation, the Justice Department on Friday asked the court to overturn Judge Collyer’s order. “The entire legal basis on which this court’s regulation of March 2020 is based has evaporated,” it said.

As soon as Mr Biden takes office next week, his Department of Justice could keep the same position or withdraw the motion to the court.

Mr. Qahtani’s attorney Ramzi Kassem described the move as “a final attempt by the Trump administration to lure Joe Biden into a pathway to oppose the independent medical examination of a mentally ill man, which the government has admitted as torture” .

Mr. Qahtani, diagnosed with schizophrenia, was captured on the Pakistan-Afghanistan border three months after the September 11, 2001 terrorist attacks and brutally interrogated for two months at Camp X-Ray in Guantánamo Late 2002 and early 2003.

Leaked documents show that Mr. Qahtani was deprived of sleep and water, kept naked and threatened by dogs while he was being tended by military medics.

“There is no question that the test will confirm my client’s serious illness and result in his medical repatriation,” said Kassem, a law professor whose clinic represents Mr. Qahtani at the City University of New York.

Mr Qahtani was suspected of being one of several failed, ambitious 20th kidnappers in the 9/11 attacks. But he was never charged with a crime, partly because he was tortured.

Stephen I. Vladeck, a professor in the University of Texas Law School who is prosecuting the Guantánamo litigation, said the Army Secretary had power to amend an ordinance but would raise the issue the court is likely to face read: “Whether the amendment is procedurally valid and whether it can be applied retrospectively to this pending case. “

He also called the timing suspicious days before Mr. McCarthy was replaced as Army Secretary. “You lost the rule. So they changed the rule. “He called it” a pretty seedy way of solving the problem “.

A Pentagon spokesman, Mike Howard, declined to comment on the change, including whether or not the Department of Defense’s general counsel had been previously consulted.