By Stephen N. Xenakis
Sunday, December 5, 2010;
The case of Omar Khadr was the first war crimes prosecution of the Obama administration, and it could set a dangerous precedent for how mental health professionals are used in terrorism trials.
I attended the proceedings in October - the first American tribunal for a child soldier since World War II - because I had been working with Khadr's defense team for two years. I am a child and adolescent psychiatrist and a retired Army brigadier general; the defense had asked me to evaluate Khadr's physical and mental health, as well as advise on military procedure.
As I listened to the prosecution's expert testimony depicting Khadr's state of mind, I was reminded of psychiatry and the politicization of mental health under the Soviet regime. Those were the years when political dissidents were accused of insanity simply because they had the audacity to challenge the Soviet system. The medical profession, especially psychiatry, was a political instrument of control and repression.
Prosecutors from the military and the Justice Department built their case against Khadr largely on testimony from their expert witness, forensic psychiatrist Michael Welner, whom they called upon to offer a medical opinion on Khadr's mental condition. Welner, a physician in private practice in New York and a professor at New York University, is developing the Depravity Scale, a tool that is intended to help juries judge the heinous or evil nature of a crime.
Painting a broad picture of the defendant, prosecutors portrayed Khadr as an unrepentant and dangerous warrior who threw a grenade that killed a special forces medic during a firefight in Afghanistan in 2002. Khadr was 15 years old at the time. Army medics saved his life after he was shot in the back twice and the compound where he lived was bombed to rubble.
During the trial, according to my notes and observations, Welner depicted Khadr as a continuing risk to society. "In my professional opinion, Omar Khadr is at a high risk of dangerousness as a radical jihadist," Welner said. Based on hundreds of hours of reviewing records and interviewing witnesses, and 7 to 8 hours of examining the prisoner, the doctor said he concluded that Khadr was a radical jihadist who was at risk of inspiring others to violent acts in the future.
But radical jihadism is not a clinical condition, and diagnosing it is not within the domain of psychiatric experts. Radical jihadism is an ideology - and can be embraced by the psychiatrically sane and insane alike.
Beyond being simply unscientific, however, the testimony had another troubling aspect. Welner relied, in part, on the research of a particularly egregious source: Danish educational psychologist Nicolai Sennels.
Welner noted that there are few academic or medical sources on the "future dangerousness" of "radical jihadists who have been apprehended and detained." Sennels, he said, is an exception. Welner described the lengthy conversation the two men had held and said his perspective was informed in part by Sennels's research on Muslim youth whom he treated as a prison psychologist. But Welner wasn't familiar with all of Sennels's written work. As the defense explained during cross-examination, Sennels is also known for inflammatory views on Islam, having claimed that "massive inbreeding within the Muslim culture during the last 1,400 years may have done catastrophic damage to their gene pool." Sennels has described the Koran as "a criminal book that forces people to do criminal things." Welner specifically repudiated these views in court.
In making its case against Khadr, the government relied on Welner's professional status as a forensic psychiatrist to put a scientific sheen on what were essentially lay opinions. The prosecutors depicted Khadr as a probably violent and radical charismatic leader. He had pleaded guilty to murder (albeit in a firefight when he was 15), was a devout Muslim and was well-liked by both detainees and guards, so he had to be dangerous. Through testimony disguised as expert psychiatric opinion, the prosecution portrayed Khadr as having "marinated" in jihadi thinking before and during his long internment at Guantanamo, and described him as a "rock star" who, as the son of a close lieutenant of Osama bin Laden's, enjoyed the adulation of other detainees.
How should Khadr be treated, then, according to the prosecution? He was a candidate for what they called "deradicalization," much like Saudi Arabia has carried out with other detainees who have returned from Guantanamo. Unfortunately, they noted, such programs are not available in the United States or Canada.
Khadr's attorneys, who were concerned that the trial could degenerate into a battle between experts, chose not to call the defense mental health experts who know him well. That means I didn't get to take the stand. If I had, I would have said - without violating the confidentiality of my work for more than two years with Khadr, and after spending more than 200 clinical hours with him - that he does not need "deradicalization" and does not show any proclivity toward committing terrorist acts. What he needs and deserves is physical and mental health treatment. He suffered extensive wounds, had multiple surgeries, is blind in his left eye and lives with the aftereffects of his injuries and interrogations.
The defense opted instead to allow Khadr to make the statement that he wanted to make, believing that his words would be more powerful than anything a mental health expert could say. Khadr apologized to the medic's widow and gave a moving repudiation of hate and violence.
In the end, considerations about Khadr's mental health might not have mattered to the jury as they determined his sentence: 40 years in prison, though, per a plea bargain, he will serve no more than eight additional years at Guantanamo or in a Canadian prison.
The military panel also heard testimony from the medic's widow. She read a letter from her 11-year-old daughter, only four years younger than Khadr was when he threw the grenade, condemning him as a murderer. Her voice may have had more of an impact on Khadr's fate than Welner's testimony.
But a doctor's words, and the pseudoscience of radicalism, could have a particularly insidious effect. In totalitarian regimes, the government often exploited psychiatrists to label citizens as "enemies of the state" without substantive clinical data. I don't believe that happened here. Radical jihadism is a serious threat, and we must use every resource available to combat it. But we should be cautious that if we misuse the science of mental health in the process, we are slipping closer to those totalitarian states. And that could be a greater threat to our national security than Omar Khadr ever was.
Stephen N. Xenakis is a child and adolescent psychiatrist and a retired Army brigadier general.