International law and mental health evaluations at Guantanamo: Is medical repatriation a solution for most detainees?. (May 2021)

• Record Type: Journal Article
• Authors: Aggarwal, Neil Krishan
• Is Part Of: International journal of law and psychiatry. Volume 76(2021)
• Publication Date: 2021-05
• Subjects: Forensic psychiatry -- Forensic mental health -- War on terror -- Guantanamo -- Geneva convention -- Medical repatriation -- Culture; Forensic psychiatry -- Periodicals; Insanity (Law) -- Periodicals; Criminal psychology -- Periodicals; Forensic Psychiatry -- Periodicals; Psychiatrie médico-légale -- Périodiques; Aliénation mentale -- Périodiques; Gerechtelijke psychiatrie; Electronic journals; 614.15
• DOI: 10.1016/j.ijlp.2021.101682
• Languages: English
• ISSNs: 0160-2527

Abstract

Abstract: This article analyzes the ruling in al-Qahtani v. Trump which establishes a new legal mechanism for Guantanamo detainees being held in indefinite detention to receive independent psychiatric evaluations from mixed medical commissions in order to determine eligibility for repatriation on humanitarian grounds. The article first reviews how the U.S. government created a legal framework for Global War on Terror detainees that differs from established conventions under international humanitarian law to protect prisoners of war. It discusses the circumstances of a Guantanamo detainee named Mohammed al-Qahtani who was tortured in U.S. custody, according to Guantanamo's top official. The U.S. government has declined to refer legal charges against him but also refused to release him since he has been considered a threat to U.S. national security. The article analyzes how al-Qahtani's attorneys challenged the legality of his detention and referred to an independent psychiatric evaluation played to establish the legal basis for "irreparable harm." al-Qahtani's independent psychiatric evaluation asserted that he displayed symptoms consistent with those exhibited by survivors of torture. Legally, the ruling establishes a precedent for Guantanamo detainees who are being held in indefinite detention to compel the U.S. government to clarify their legal status or arrange an examination by a mixed medical commission. Twenty-two other detainees out of the forty still at Guantanamo fall in this legal category, so the precedent has far-reaching consequences. Finally, the prospect of mixed medical commissions composed of international experts who are collaborating to render a medical opinion raises questions about how independent psychiatric evaluations would be conducted in practice.