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O.K. v. BUSH

October 26, 2004.

O.K., et al., Petitioners,
v.
GEORGE W. BUSH, et al., Respondents.



The opinion of the court was delivered by: JOHN BATES, District Judge

MEMORANDUM OPINION

Petitioner O.K. is an eighteen-year old Canadian citizen who has been held by the United States since the age of fifteen in a detention facility at the United States Naval Base in Guantánamo Bay, Cuba.*fn1 His grandmother has filed a petition for a writ of habeas corpus on his behalf as his next friend challenging the fact of his confinement and the conditions in which he is detained. On September 21, 2004, pursuant to a Resolution of the Executive Session of this Court, the case was transferred to Senior Judge Joyce Hens Green for coordination and management with the other habeas petitions filed in this Court by more than 60 detainees at Guantánamo. The case was retained by this Court for all other purposes.

Presently before this Court is petitioners' emergency motion to compel the government to allow an independent medical evaluation and to produce the medical records of petitioner. Petitioners argue that he is in poor and deteriorating physical and mental health, and that the Court has the authority to issue an order under its inherent authority or the All Writs Act, 28 U.S.C. § 1651(a), to ensure that petitioner understands any charges that are filed against him and can participate meaningfully in his defense. The United States counters that the relief sought by petitioners would trespass on the separation of powers; that the Court lacks authority to issue such an order under the All Writs Act because an independent medical review or the production of medical information is not necessary to preserve the Court's jurisdiction; that the order is an inappropriate exercise of any authority the Court might be viewed to possess because no charges have been brought against petitioner, and accordingly there is no reason to undertake any inquiry into petitioner's mental competence; and that, in any event, petitioner has failed to establish that his medical or mental condition requires an independent medical evaluation.

  For the reasons set out in this memorandum opinion, the Court finds no basis for the emergency relief sought by petitioners at this time. In arriving at this conclusion, the scope of analysis is limited. The Court does not find it necessary to address the bounds of its authority under the All Writs Act (or any other constitutional or statutory source), or the extent to which that authority may be cabined in the circumstances of this case by the separation of powers. In addition, petitioner is no longer a minor, and the relief sought by this motion is prospective, and therefore the Court need not decide at this time the extent to which, if at all, a detainee's status as a minor alters the rights of the detainee or the responsibilities of the United States in administering his detention. Finally, and most importantly, the Court does not directly address the merits of the challenges to the legality of petitioner's detention or the conditions of his confinement.

  Instead, the Court's ruling is narrow, and pertains solely to the emergency request for an independent medical evaluation and the release of medical records. As to that request, the Court concludes that petitioners have identified no legal proceeding for which there is a legal right to a determination of mental competency at this time. Even if there were such a proceeding, moreover, the Court concludes that petitioners have failed to produce evidence that calls into question petitioner's mental competency such that the relief sought would be appropriate. Finally, the Court rejects petitioners' request, untethered to any substantive claim of a violation of legal rights, that the Court should intercede in the decision-making of medical personnel at Guantánamo.

  Accordingly, petitioners' emergency motion to compel the government to allow an independent medical evaluation and to produce medical records is denied.

  BACKGROUND

  A. Factual Background

  On September 11, 2001, the al Qaeda terrorist network used hijacked commercial airplanes to launch a vicious and coordinated attack on the United States. Approximately 3,000 people were killed in the terrorist attack. One week later, the Congress passed a resolution authorizing the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks." Authorization for Use of Military Force, Pub.L. 107-40, § 2, 115 Stat. 224. Pursuant to that authority, the President ordered United States Armed Forces to Afghanistan with the mission of subduing the al Qaeda network and the Taliban regime that supported it. In the course of that campaign, the United States and its allies captured a large number of individuals, many of them foreign nationals, and transported many to the United States Naval Base at Guantánamo Bay, Cuba ("Guantánamo") for detention. There are presently more than 500 alien detainees being held at Guantánamo. See Decl. of Dr. John S. Edmondson ("Edmondson Decl.") ¶ 1.

  One of those detainees is the petitioner in this case, a now eighteen-year old citizen of Canada. In the wake of the Supreme Court's ruling in Rasul v. Bush, 124 S. Ct. 2686 (2004), he filed a petition for a writ of habeas corpus on his own behalf and through his grandmother as his "next friend" (collectively, petitioner and his grandmother are referred to herein as "petitioners").*fn2 The petition challenges the legality of petitioner's detention and the conditions of his confinement under the Constitution, several federal statutes and regulations, and international law.

  Shortly after filing the habeas petition, petitioners filed an emergency motion asking this Court to instruct respondents*fn3 to allow an independent medical evaluation of petitioner at Guantánamo and to release his full medical records. The thrust of petitioners' argument as it has evolved is that this Court has an obligation to ensure petitioner's mental competency so that he can understand and participate in the defense of any charges that might be brought against him by military authorities. The motion also hints, at times, at a broader argument that the Court bears a more general duty to monitor the health and physical well-being of detainees at Guantánamo.

  Attached to the motion is a series of newspaper articles and website print-outs that generally address the conditions at Guantánamo, but do not specifically discuss petitioner's situation (except for a single article that mentions his confinement but does not discuss his health or living conditions). Somewhat more helpful is an affidavit submitted by petitioner's grandmother that is attached as an exhibit to the habeas petition. From this affidavit, as well as several submissions by respondents, the Court can piece together the circumstances of petitioner's capture and his detention that are relevant to this emergency motion.

  Petitioner is a Canadian citizen born in Ottawa on September 19, 1986. See Petition ¶¶ 3, 13; Aff. of Fatmah Elsamnah ("Elsamnah Aff.") ¶ 11. After living in Canada and Pakistan for portions of his childhood, he moved with his family to Kabul, Afghanistan in 1997. See Petition ¶ 13; Elsamnah Aff. ¶¶ 15-32. In July of 2002, petitioner was captured during a battle with American forces in Kabul. See Petition ¶ 13; Elsamnah Aff. ¶ 47. At least one American soldier died in the battle.*fn4 See Elsamnah Aff. ¶ 46; Return at 11. At the time of his capture, petitioner was fifteen years of age and seriously injured, with shrapnel wounds to several parts of his body, including one to his left eye that has led to the loss of much of his vision in the eye. See Elsamnah Aff. ¶ 46; ____________________.

  Petitioner was transported to Guantánamo in the late fall of 2002. See Petition ¶ 13; Letter from Dep. Ass't Att'y Gen. Thomas Lee to Senior Judge Joyce Hens Green, Sept. 3, 2004, at 2 n. 1 ("Sept. 3 Lee Letter"); Resp'ts' Resp. Emergency Mot. Compel ("Resp."), Ex. A (Healthcare Services Evaluation). He was sixteen years old when he arrived at Guantánamo. See Sept. 3 Lee Letter at 2 n. 1. The petition for a writ of habeas corpus represents that petitioner has since been held "virtually incommunicado" at Guantánamo, "separated from his mother and other family members, and without access to counsel." Pet'rs' Memo. Supp. Emergency Mot. ("Pet. Mem.") at 4. He is now eighteen years of age, and is still detained at Guantánamo at this time.

  Petitioner has been housed in general population since he arrived at Guantánamo. See Sept. 3 Lee Letter at 2 n. 1; Elsamnah Aff. ¶ 49. According to newspaper accounts, each detainee in general population lives in a separate cell that is 6 feet 8 inches by 8 feet and, as a general rule, is allowed out of the cell three times a week for 20 minutes of solitary exercise, followed by a 5-minute shower. See Pet. Mem., Ex. C (Ted Conover, In the Land of Guantanamo, N.Y. Times Magazine, June 29, 2003 ("New York Times Article")) at 3. There is a separate detention facility at Guantánamo called Camp Iguana, reserved for detainees under the age of sixteen, that is modified to meet the needs of juveniles. See Sept. 3 Lee Letter at 1. Detainees at Camp Iguana participate in group counseling and meet with specialists to address their behavioral and educational needs. They are also provided with an opportunity to learn mathematics and improve their literacy, as well as participate in physical exercise. See id. at 1-2; New York Times Article at 1-2. Petitioner has never been housed at Camp Iguana. The respondents explain that this is because he did not arrive at Guantánamo until after his sixteenth birthday. See Sept. 3 Lee Letter at 2 n. 1.*fn5

  According to a declaration submitted by Dr. John S. Edmondson, a Captain in the United States Navy who oversees the hospital that provides medical care to the detainees at Guantánamo, all detainees arriving at Guantánamo are given a complete physical examination upon arrival, and continue to receive medical attention throughout their detention. See Edmondson Decl. ¶¶ 5-6. A detainee can obtain medical care at any time by making a request to a guard or to medical personnel who make rounds on the cellblocks every other day. See id. ¶ 5. From January 2002 to December 2003, the hospital staff conducted over 30,000 outpatient visits. See id.

  The detention hospital has eighteen beds and a medical staff of seventy, as well as a twenty-one member behavioral health services staff. See id. ¶¶ 3-4. For medical procedures beyond the means of the detention hospital, Dr. Edmondson says that detainees are transferred to the Naval Base Hospital at Guantánamo, and specialists are occasionally flown in to provide care to detainees when the care even at the Naval Base Hospital is insufficient. See id. ¶ 6. Dr. Edmondson reports that detainees at Guantánamo have been treated for a variety of medical conditions, among them hepatitis, diabetes, tuberculosis, malaria, and malnutrition. See id. ¶ 7. The medical staff has provided prescription drugs as well as prescription eyeglasses and prosthetic limbs. See id. ¶ 7. Since January 2002, the staff has performed over 160 surgical procedures on detainees, ranging from the removal of an appendix to coronary artery stent replacement. See id. ¶ 9.

  Finally, in a portion of the declaration filed under seal for reasons of privacy,*fn6 Dr. Edmondson states that he has reviewed the medical records of petitioner, and concludes that ________________________________________________________________________. See id. ¶ 10. Dr. Edmondson states that petitioner "has a history of _______________________ ______________________________________________________________________ _" Dr. Edmondson also emphasizes that at "no time was [petitioner] denied medical care as a consequence of not cooperating in interrogations." Id. Along with Dr. Edmondson's declaration, the respondents submitted under seal a "Healthcare Services Evaluation" that summarizes the treatment of petitioner for his battle wounds and several minor medical problems, and concludes that he has ____________________________________________________________________ __________________. Healthcare Services Evaluation at 1-2. The Healthcare Services Evaluation notes that petitioner "has been followed by Behavioral Health Services for a diagnosis of ________________________________ but is "currently not being followed by BHS." Id. at 2.

  Petitioners do not submit any evidence specifically refuting Dr. Edmondson's account of the medical facilities at Guantánamo.*fn7 Nevertheless, they express concern about the actual nature of the medical care that has been given to petitioner and his current physical and mental condition. Petitioner's grandmother states in an affidavit that petitioner's older brother Abdurahman, who was detained in Guantánamo for several months, was able to talk to petitioner:
I am advised that Abdurahman never saw [petitioner]. However, they did speak one time through a fence. [Petitioner] expressed concerns over his health and the fact that, without medical attention, he would completely lose the sight in his left eye.
Elsamnah Aff. ¶¶ 33-36, 46, 48. The affidavit does not explain how petitioner's grandmother came to be aware of this conversation, and it does not provide any more information about petitioner's ...

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