Guantanamo argument: Does USS Cole defendant have brain damage?

Defense and prosecution lawyers sparred Wednesday over whether the accused USS Cole bomber should get an MRI of his brain before his death-penalty trial.

The request presented both a logistical and political challenge to the U.S. military. Congress forbids the transfer of Guantanamo detainees to U.S. soil even for medical emergency. Also, although the prison ordered a $1.65 million magnetic resonance imaging machine nearly two years ago, it never arrived.

Abd al-Rahim al-Nashiri, 49, is accused of orchestrating al-Qaida's Oct. 12, 2000, suicide attack on the USS Cole warship off Yemen that killed 17 American sailors. U.S. agents waterboarded him and interrogated him with threats of a power drill and a handgun.

For the defense, al-Nashiri attorney Rick Kammen argued that his side needed the scan to investigate for "organic brain damage," as potential mitigation evidence at the war crimes tribunal of the man whom a U.S. military medical panel has diagnosed as suffering post-traumatic stress disorder.

In addition, a defense team torture expert, internist Dr. Sondra Crosby, testified in April that al-Nashiri was a victim of "physical, psychological and sexual torture." She recommended the military conduct the scan to evaluate PTSD-related memory loss and care for him properly.

To do otherwise, Kammen told the judge, Air Force Col. Vance Spath, would be willfully indifferent to his medical needs and would be providing ineffective assistance of counsel.

Interestingly, that very issue has cast a cloud over a death-penalty case the judge handled as an Air Force prosecutor. A military appeals court criticized attorneys for Senior Airman Andrew Witt for not exploring the possibility that Witt suffered traumatic brain injury in a motorcycle crash four months before he brutally murdered a couple at Robins Air Force base in Georgia in 2004. He's on military Death Row but Spath says he no longer follows the ongoing appeal of his most-high profile victory as an Air Force prosecutor.

A case prosecutor, Army Col. Robert Moscati, disputed the need for the brain scan and defended the mental-health treatment al-Nashiri has received at Guantanamo since arriving from four years of CIA secret prison custody in September 2006.

Moscati argued that U.S. military prison doctors don't think an MRI is "medically indicated," would not confirm Crosby's diagnosis of memory loss and wouldn't put a time frame on any brain damage it may show.

"Mr. Nashiri could've fallen off his bike when he was 3," said Moscati, the deputy chief Pentagon war crimes prosecutor who in civilian life is a federal prosecutor in Buffalo, N.Y.

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Guantanamo argument: Does USS Cole defendant have brain damage?