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GUANTANAMO BAY NAVY BASE, Cuba -- An Army judge is giving a military mental-health board access to an alleged al-Qaida deputy's secret CIA file, covering the time when agents waterboarded the man and subjected him to a mock execution with a power drill, to help evaluate whether he can go on trial.
Saudi-born captive Abd al Rahim al Nashiri, 48, is facing a death-penalty trial as accused mastermind of the Oct. 12, 2000, suicide bombing of the USS Cole off Yemen in which 17 American sailors were killed. The trial could start next year.
The prosecution persuaded Army Col. James Pohl, the judge, to order the mental-health evaluation by an undisclosed medical panel.
The examiners will include three or more physicians or clinical psychologists, Pohl wrote in an order dated Thursday but obtained by The Miami Herald on Friday. One must be a psychiatrist or clinical psychologist and none can be mental-health counselors who have already worked with Nashiri.
At issue is whether the man whom agents sought to break through waterboarding, threatening to rape his mother in front of him and staging his mock execution with a drill while he was naked and hooded is mentally competent to stand trial.
His defense lawyers have never argued he's too damaged for trial, but often argue in court that he suffers from post-traumatic stress disorder that's compounded by shackling and other current prison practices that re-traumatize him.
So the judge's order charges a two-star general at The Walter Reed National Military Medical Center in Bethesda, Md., which treats wounded U.S. troops, with assembling a team to diagnose Nashiri and answer two questions:
-- "Is the accused presently suffering from a mental disease or defect?"
-- "Does the mental disease or defect render the accused mentally incompetent to understand the nature of the proceedings against him or cooperate intelligently in or conduct his defense."
He wants their report by April 1.
In the order, the judge lets the mental-health board decide whether and how to shackle Nashiri during their meetings and authorizes the team to conduct "medical tests to determine the extent of any organic brain damage, if any, if such testing is medically indicated."
The board also gets to pore over, without asking, his four-year CIA file.
A case prosecutor, Navy Cmdr Andrea Lockhart, had argued in court that the panel could request "whatever material they need in order to conduct the inquiry per their judgment" -- leaving open the possibility that the mental-health board would decide competence without looking into his abuse at the CIA prisons.
The judge, however, affirmatively instructed the panel to review "relevant medical records and detention history of the accused, including classified records reflecting the nature of post-capture detention prior to surrender to Department of Defense detention."
The military only got custody of Nashiri in September 2006. From his capture in the United Arab Emirates in 2002, the CIA held him in "black-site" lockups in Afghanistan, Thailand, Poland, Morocco and Romania, according to a series of independent investigators, from the United Nations to The Open Society Foundation.
It was during that period that he was subjected to the so-called "enhanced interrogation techniques" used during the Bush era but forbidden by President Barack Obama.
On Tuesday, survivors of the USS Cole attack expressed frustration at the limited news coverage of the hearings and that Nashiri's mental health was a focus.