Court Sets Up Showdown Over Outside Health Review of Guantánamo Prisoners

Lawyers for Mr. Qahtani, and a psychiatrist who was consulted on the case, made a novel argument for enacting an Army regulation that includes medical-repatriation provisions of the Third Geneva Convention for prisoners of war. Their position is that Mr. Qahtani can only be effectively treated in his homeland.

Most claims of torture of Guantánamo detainees center on what happened in the C.I.A. prison network before their transfer to military custody. But leaked documents show that Mr. Qahtani was subjected to two months of continuous, brutal interrogations at Guantánamo’s Camp X-Ray — sleep deprivation, dehydration, nudity and being menaced by dogs — while under the care of military medics from the same prison operation that provides his medical care now.

The Defense Department views Guantánamo detainees as unprivileged enemy combatants, not classic prisoners of war, and therefore not entitled to the mixed medical commission.

A top Defense Department responsible for detainee affairs, Steven W. Dalbey, wrote in a declaration in May that he interpreted the Army regulation for a medical commission to mean Al Qaeda, not Saudi Arabia, would have a say in approving the foreign doctors. That would be at odds with the government’s policy “of not negotiating with terrorist groups,” he added.

In May, lawyers for another prisoner, Ammar al-Baluchi, who is accused of conspiring in the Sept 11, 2001, attacks, wrote Defense Secretary Mark T. Esper asking him to arrange a similar independent medical evaluation.

His lawyers argue that Mr. al-Baluchi, whose uncle is accused of being the mastermind of Sept. 11 attack, Khalid Shaikh Mohammed, suffers from post-traumatic stress disorder and a traumatic brain injury as a result of his torture by the C.I.A. Mr. Esper has not responded to the request, Mr. al-Baluchi’s lawyer, James G. Connell III, said on Tuesday.

Mr. Qahtani has been portrayed as a would-be 20th hijacker in the Sept. 11 attacks. He tried to enter the United States at Orlando International Airport in the summer of 2001 and was turned away by a border agent. He was captured after the attacks fleeing Afghanistan and was sent to Guantánamo, where a senior Pentagon official concluded his torture made him ineligible for trial in the Sept. 11 case.