UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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UNITED STATES OF AMERICA,

-against- S10 98 Crim. 1023 (LAK)

AMHED KHALFAN GHAILANI,

Defendant.

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ORDER

LEWIS A. KAPLAN, District Judge.

On May 20, 2010, the Court directed that defendant be subjected to a psychiatric

examination, pursuant to 18 U.S.C. § 4247, in order to determine, among other things, his

competency to stand trial. The circumstances leading to that order are plain from the opinions dated

May 5 and June 14, 2010 and the transcript of the proceedings on May 18, 2010. They need not 1 2

be set out in further detail here. 

The Court now has had the benefit of a report and live testimony of Katherine

Porterfield, Ph.D., a clinical psychologist; the report of Gregory Brian Saathoff, M.D., a qualified

psychiatrist; its own observations of the defendant on those occasions on which he has been before

it; and at least one letter from the defendant to the Court. It has read also the classified reports of

mental status examinations while the defendant was in the custody of the Central Intelligence

Agency (“CIA”) and the Department of Defense as well as other classified materials provided to it

in connection with proceedings under the Classified Information Procedures Act. It notes also that

neither the government nor the defendant has requested an evidentiary hearing under chapter 313

of the Criminal Code, 218 U.S.C. §§ 4241 et seq. Both in fact have indicated their view that no such

hearing is required.3

1

United States v. Ghailani, ___ F. Supp. 2d ___, No. S10 98 Crim. 1023 (LAK), 2010 WL

1816010 (S.D.N.Y. May 5, 2010).

2

DI 962.

3

Tr., June 24, 2010, at 2.
2

Based on the entire record, including its assessment of the persuasiveness and

credibility of the sources before it, the Court makes the following findings of fact and conclusions

of law.

1. The defendant is not presently suffering from any mental disease or defect,

including any mental disease or defect rendering him mentally incompetent to the extent that he is

unable to understand the nature and consequences of the proceedings against him or to assist

properly in his defense. Without limiting the generality of the foregoing, the Court finds that

Ghailani has not suffered, and is not suffering from, post-traumatic stress disorder.

2. The defendant is now, and at all relevant times has been, fully competent to

waive such rights as he may have to be present in court in this case and to make any other decisions

with respect to these proceedings.

3. The visual search procedure employed by the Bureau of Prisons (“BoP”) to

which the defendant has objected has not interfered, and is not likely to interfere, with his ability to

assist properly in his defense.

4. There is credible evidence before the Court that suggests, and the Court finds,

that the defendant has absented himself from proceedings in this case at least in part in an effort to

frustrate this prosecution rather than in consequence of any reaction, attributable to post-traumatic 4

stress or other mental, emotional or psychological cause, to the BoP visual search procedure referred

to in paragraph 3. 

SO ORDERED.

Dated: July 1, 2010

At the June 24 hearing, defense counsel expressed an intention to submit an affidavit

concerning certain observations made by one of their number during Dr. Saathoff’s

psychiatric observation of the defendant and was directed to submit any such affidavit by

June 30, 2010. No such affidavit has been submitted.

4

Report of Gregory Brian Saathoff, M.D., at 22 and materials referred to therein. (The

cited portion of the report and the supporting materials on this point are classified.)