United States District Court, D. Columbia
October 26, 2005.
MAJID ABDULLA AL-JOUDI, et al., Petitioners,
GEORGE W. BUSH, et al., Respondents. JARALLAH AL-MARRI, et al., Petitioners, v. GEORGE W. BUSH, et al., Respondents. MUHAMMAD AL-ADAHI, et al., Petitioners, v. GEORGE W. BUSH, et al., Respondents. HAMID AL RAZAK, et al., Petitioners, v. GEORGE W. BUSH, et al., Respondents.
The opinion of the court was delivered by: GLADYS KESSLER, District Judge
Petitioners originally filed a joint Emergency Motion to Compel
Access to Counsel and Information Related to Petitioners' Medical
Treatment ("Motion") in the above-captioned cases. The Court set
an expedited briefing schedule and ordered the parties to re-file
their briefs with relevant legal authority. Petitioners then
re-filed their Motion as a Preliminary Injunction. A hearing was
held on October 14, 2005. Upon consideration of the revised
Motion, Opposition, Reply, supplemental materials, and arguments
made at the Motion Hearing, Petitioners' Motion is granted in
part and denied in part.
Petitioners are citizens of Qatar, Saudi Arabia, Yemen and
Afghanistan. Between, November 2004 and August 2005, they
requested immediate issuance of a writ of habeas corpus,
challenging their detention at the U.S. Naval Base at Guantanamo
Bay, Cuba ("Guantanamo"). The Motion now before the Court arises
out of the most recent hunger strike taking place at Guantanamo.
On or around August 25, 2005, Petitioners' counsel learned that
the second of two recent hunger strikes had begun at Guantanamo.
According to Petitioners, this hunger strike arose because "(1)
military authorities had failed to meet the obligations agreed to
in an agreement between detainees and Respondents that had ended
a prior hunger strike just two months ago; (2) detainees continue
to be subject to physical, psychological and religious abuses; and (3) detainees continue to
be held without charge or adequate process." Pets.' Mot. to
Compel Access to Counsel and Info. Related to Medical Treatment
("Pets.' Mot.") at ¶ 14. When Petitioners filed their Motion,
they had information that between 131 and 210 detainees were
participating in the hunger strike, and that as of September 16,
20 were being "forcibly subject to involuntary medical
intervention via the introduction of intravenous fluids or
nasoenteric (nasal) tube feeding." Id. at ¶¶ 15-18.*fn1
In light of this information, Petitioners' counsel asked the
Government to provide information related to their clients'
health status and hospitalization records or, in the alternative,
permission to speak with their clients by telephone to ascertain
their condition. Id. at ¶¶ 7-8. Respondents refused to provide
client-specific information, claiming "GTMO is not in a position
to provide continuous updates on that situation to you or,
potentially, counsel for the more than 200 other habeas
petitioners at GTMO. Similarly, GTMO is not in a position to
support telephonic access to the detainees for such purposes. As
noted above, however, GTMO is appropriately monitoring and
providing medical treatment to detainees as warranted to preserve
detainees' lives and health." Id. at ¶ 32 and Ex. L. Petitioners
subsequently filed this Motion.*fn2
Petitioners assert that without judicial intervention, they
have no effective means of accessing their clients or
ascertaining information about their health status. Petitioners
each seek the same relief from the Court: 1) that representative
counsel be granted immediate access to Guantanamo, for the
purpose of assessing the medical condition of all Petitioners; 2)
that Petitioners' counsel be granted immediate telephone access
to their clients; 3) that Petitioners' counsel be granted
immediate telephone access to Petitioners' next friends or family
members; and 4) that Petitioners' counsel be given access to
records regarding Petitioners' medical treatment, meal schedules,
punishment and hospitalization, and Respondents' policies and
actions taken with respect to the current and previous hunger
strikes. Id. at ¶ 10.
A. Al-Joudi Petitioners
Julia Tarver, counsel for the Al-Joudi Petitioners, Majid
Abdulla Al-Joudi, Yousef Al Shehri, and Abdul-Rahman Shalabi,
submitted a Declaration detailing what she learned during her
visit to Guantanamo from September 30 to October 2,
2005.*fn3 The allegations are deeply troubling, and counsel's concern about the
welfare of her clients is understandable. However, it is also
true that none of those allegations have been tested in the
crucible of cross-examination. If the allegations are true and
they are all explicitly, specifically, and vigorously denied by
the Government they describe conduct of which the United States
can hardly be proud.
Yousef Al Shehri, who was detained when still a juvenile, was
"emaciated and had lost a disturbing amount of weight" since
counsel's last visit in July 2005. Suppl. Decl. of J. Tarver at ¶
7. "He had difficulty speaking because of lesions in his throat
that were a result of the involuntary force-feeding he had been
receiving through his nose and throat." Id.
Al Shehri informed counsel that with shackles or other
restraints on their arms, legs, waist, chest, knees and head,
detainees were being force fed by intravenous medication. This
process was "often quite painful as inexperienced medical
professionals seemed incapable of locating appropriate veins."
Id. at ¶ 8.
Al Shehri told his counsel that, at some point, he, along with
other detainees, started to be force fed through nasogastric
tubes that were inserted through the nose, down the throat, and
into the stomach. Al Shehri was "given no anesthesia or sedative
for the procedure; instead, two soldier [sic] restrained him one
holding his chin while the other held him back by his hair, and a
medical staff member forcefully inserted the tube in his nose and
down his throat. Much blood came out of his nose . . . he could
not speak for two days . . . [and] he could not sleep because of
the severe pain." Id. at ¶ 10. The procedure caused him and
other detainees to vomit "substantial amounts of blood." Id. at
¶ 11. "When they vomited up blood, the soldiers mocked and cursed
at them, and taunted them with statements like `look what your
religion has brought you.'" Id.
Al Shehri also told his counsel that he and other detainees
were transferred to a different location in which "the walls were
made of foam, and there were strange lights and a hole in the
floor in which to urinate." Id. at ¶ 13. Here the guards began
to insert thicker tubes into the detainees' noses. When this
thicker tube was removed from Al Shehri's nose, "blood came
gushing out of him. He fainted, and several of the other
detainees also lost consciousness." Id. at ¶ 14. Riot guards
forcibly removed these tubes by "placing a foot on one end of the
tube and yanking the detainee's head back by his hair." Id. at
Al Shehri also recounted that "in front of Guantanamo
physicians including the head of the detainee hospital the
guards took NG tubes from one detainee, and with no sanitization
whatsoever, re-inserted it into the nose of a different detainee
. . . [T]he detainees could see the blood and stomach bile from
other detainees remaining on the tubes." Id. at ¶ 16 (emphasis in
Petitioners assert that because of this needlessly cruel and
painful treatment, Al Shehri "can no longer walk. He has lost
some of his vision, and he is vomiting every day . . . [H]e has
severe headaches, and great pain in his ear. He is only able to
urinate once every few days . . . He has given  his last will
and testament, as he fully anticipates that he is going to die."
Id. at ¶ 18.
B. Al-Marri Petitioners
Jonathan L. Hafetz, counsel for Petitioner Al-Marri, met with
his client on July 26 and 27, 2005. Pets.' Mot. at 6, Ex. J,
Decl. of J. Hafetz at ¶ 3. Al-Marri informed him that during June
and July 2005, he refused to eat for 17 consecutive days, and
that he was hospitalized, connected to an IV, and treated for a
serious heart condition. Id. at ¶¶ 4-5. Counsel asserts that
Al-Marri has been denied adequate medical care and "presently
suffers from a number of medical conditions, including heart,
kidney, and bladder problems." Id. at ¶ 14.
During the hearing, counsel represented that Al-Marri has been
detained for almost four years, and for two years he has been in
"absolute solitary confinement with the lights on 24 hours a day,
seven days a week . . . He has lost over 30 pounds, and looks . . .
frail, gaunt and disheveled. . . ." Tr. at 64. C. Al-Adahi Petitioners
John Anderson, counsel for Al-Adahi Petitioner Muhammad Ali
Abdullah Bawazir, submitted a declaration detailing his visit to
Guantanamo in late September 2005. He observed that the floors of
Bawazir's cell were inexplicably "sopping wet," and that his
"physical appearance had changed so drastically from [the] last
meeting in June of 2005 that he was hardly recognizable." Suppl.
Decl. of J. Anderson at ¶¶ 5-6. He was so weak that counsel cut
short their meeting with him as he was "visibly exhausted and was
suffering from the effort of sitting up." Id. at ¶ 11.
During the hearing, John Chandler, who visited Bawazir along
with Mr. Anderson, added that it was only upon his arrival at
Guantanamo that he learned for the first time that his client was
participating in the hunger strike. Tr. at 31. Counsel observed
that Bawazir was "shackled . . . to a wheelchair," and shivering,
and that he had lost a significant amount of weight. Id.
D. Al-Razak Petitioners
Counsel for the Al-Razak Petitioners has not yet received a
security clearance, and therefore has been unable to visit his
client. He believes, based on information from the press and
communications with other counsel, that his client may be
participating in the hunger strike. Pets.' Mot. at 7, Ex. K,
Decl. of A. Sussman at ¶¶ 2-4. E. The Government's Opposition
In opposition to Petitioners' Motion, the Government submitted
the Declaration of Major General Jay Hood, Commander, Joint Task
Force-Guantanamo, Guantanamo Bay, Cuba, to establish that there
are adequate procedures in place at Guantanamo to protect
detainees' health. The Declaration states, "our detention mission
is conducted in a humane manner that protects the security of
both detainees and JTF personnel at GTMO." Resps.' Opp'n to
Pets.' Mot. ("Opp'n"), Ex. A, ¶ 1. It is Guantanamo policy to
"prevent unnecessary loss of life of detainees through standard
medical intervention, including involuntary medical intervention
when necessary to overcome a detainee's desire to commit suicide,
using means that are clinically appropriate." Id. at ¶ 2.
This policy involves monitoring each detainee's intake of food
and water. If a detainee misses nine consecutive meals or has
refused food and water for more than two days, medical personnel
are notified. Id. at ¶ 5. If medical personnel determine that
continuation of the hunger strike could endanger a detainee's
health, or life, the detainee is admitted to the hospital, where
he receives continuous observation and counseling regarding the
risks of participating in the hunger strike. Id. at ¶ 6.
"Interventions of an involuntary manner are deferred . . . until
there is a clear medical determination by the attending physician
that continued fasting would impair the health seriously or
jeopardize the life of a detainee." Id. at ¶ 8. The Government also submitted the Declaration of Dr. John S.
Edmondson, M.D., Commander of the U.S. Navy Hospital at
Guantanamo, Task Force Surgeon for Joint Task Force-Guantanamo,
and head of the Guantanamo detainee hospital. Dr. Edmondson
specifically denies each and every one of Petitioners'
allegations regarding the procedures being used to handle the
hunger striking detainees.
Dr. Edmondson asserts that nasogastric feeding tubes are
inserted only by trained and experienced physicians and
credentialed registered nurses.*fn4 Resps.' Suppl. Opp'n at
3, Ex. A, ¶ 5. He maintains that the tubes are always inserted
with a lubricant, and that "in all cases, a topical anaesthetic
such as lidocaine is offered." Id. at ¶ 6. In contradiction of
Al Shehri's complaints regarding the width of the feeding tubes,
Dr. Edmondson states that "[c]urrently only 10 french (3 mm. in
diameter) nasogastric tubes are used on all patients."*fn5
Id. at ¶ 9. He concludes that insertion and removal of feeding
tubes is not done "in a manner intentionally designed to inflict
pain or harm on the detainee." Id. at ¶ 6.
Dr. Edmondson specifically contests Petitioners' claims about
the unsanitary use of feeding tubes. "Current protocols require that a new sterile nasogastric tube be utilized for every
insertion . . . Nasogastric tubes are not and were not ever
inserted in one patient and then used again in another
patient."*fn6 Id. at ¶ 8. Dr. Edmondson states that
although "[o]ccasional sores may occur in the throat . . . [t]he
sores have not kept the patients from talking or otherwise
functioning within the camp or the detention hospital," and notes
that detainees are offered pain relievers if they are in
discomfort. Id. at ¶ 14.
Dr. Edmondson challenges the assertions of Petitioners Al
Shehri and Bawazir. He claims that although both have experienced
"demonstrable weight loss due to their choice to participate in
the hunger strike," their condition is stable and their prognosis
is good. Id. at ¶¶ 17-18.
II. STANDARD OF REVIEW
It is undisputed that the granting of preliminary injunctive
relief is an extraordinary measure, and that the power to issue
such exceptional relief "should be sparingly exercised."
Dorfmann v. Boozer, 414 F.2d 1168, 1173 (D.C. Cir. 1969)
(internal citation omitted). To obtain preliminary injunctive
relief, a plaintiff has the burden of demonstrating: "1) a
substantial likelihood of success on the merits, 2) that
[plaintiff] would suffer irreparable injury if the injunction is
not granted, 3) that any injunction would not substantially injure other interested parties, and 4)
that the public interest would be served by the injunction."
Katz v. Georgetown Univ., 246 F.3d 685, 687-88 (D.C. Cir.
2001). The threat of irreparable injury must be "real and
imminent." Getty Images New Servs. Corp v. Dep't of Defense,
193 F. Supp. 2d 112, 122 (D.D.C. 2002) (citing Wisconsin Gas Co.
v. F.E.R.C., 758 F.2d 669, 674 (D.C. Cir. 1985)).
"These factors interrelate on a sliding scale and must be
balanced against each other." Serono Labs, Inc. v. Shalala,
158 F.3d 1313, 1318 (D.C. Cir. 1998). "If the arguments for one
factor are particularly strong, an injunction may issue even if
the arguments in the other areas are rather weak." City Fed.
Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746
(D.C. Cir. 1995).
A. Irreparable Injury
Petitioners argue that immediate injunctive relief is necessary
to "ensure that [they] have access to counsel and the Court."
Pets.' Mot. at ¶ 35. Counsel's main argument is that "Petitioners
risk death or permanent physical injury due to their
participation in the hunger strike consequences which may be
avoided if they are afforded the opportunity to meaningfully
confer with counsel and able to therefore access the Court in
order to enforce their rights." Id. at ¶ 39. The Government responds that "Guantanamo personnel have
policies and practices in place for responding appropriately to
hunger strikes such that no detainee's life or health will be
endangered." Opp'n at 4. The Government further claims that
because certain counsel have recently made trips to Guantanamo,
or have trips planned in the near future, immediate access to
their clients is unnecessary. However, as Petitioners' counsel
argued at the hearing, "the access issue is not solved after one
visit" since the detainees' conditions vary, and can deteriorate
very rapidly. Tr. at 24.
Finally, the Government points out that, thus far, "no one has
died." Id. at 43. It goes without saying that this Court need
not wait to issue injunctive relief until a detainee has died. It
can hardly serve either the national security interests of this
country or enhance its image throughout the world to contribute
in any way to the death of a detainee in its custody.
Facing requests for preliminary injunctive relief, courts often
find a showing of irreparable harm where the movant's health is
in imminent danger. See, e.g., Blackman v. District of
Columbia, 185 F.R.D. 4, 6-7 (D.D.C. 1999) (referring to related
case in which court found plaintiff had established irreparable
harm where defendant was not administering necessary medication
and catheterization to child); Wilson v. Group Hosp. & Med.
Servs., Inc., 791 F. Supp. 309, 314 (D.D.C. 1992) (granting
preliminary injunction where cancer patient's "health and future
remain[ed] in serious doubt" and insurance carrier refused to pay for the only
treatment that could save her life).
Although these cases are distinguishable on the facts, they
support the proposition that where the health of a legally
incompetent or vulnerable person is at stake, irreparable harm
can be established. While Petitioners do not lack legal
competence as children do, they are indeed vulnerable to further
physical deterioration, and possibly death, by virtue of their
custodial status at Guantanamo and weakened physical condition.
Finally, the Court is cognizant of the fact that Petitioners
have voluntarily decided to participate in the hunger strike.
Petitioners claim, however, that their voluntary participation
is, in fact, a desperate protest against what they perceive as a
long, potentially indefinite, confinement without final
adjudication of their status.*fn7 The legal analysis for
irreparable harm must focus not on the cause of the injury, but
rather on the degree and imminence of harm that will result if
the Court does not issue emergency relief.
The Court concludes that Petitioners have provided sufficient
facts, based both on counsel's personal observations over a
period of time, and the detainees' accounts of their own
experiences, to establish that the threat of death or serious
physical deterioration is real and imminent, and that Petitioners
have satisfied the requirement of facing irreparable harm unless
injunctive relief is granted. See Getty,
193 F. Supp. 2d at 122.
B. Likelihood of Success on the Merits
Petitioners argue that detainees seeking habeas relief have
an established right to "present their own cases," and that
courts are "empowered to requir[e] additional measures to assure"
that right is provided. Bounds v. Smith, 430 U.S. 817, 824
(1977). The Government argues in response that there is no
adequate legal basis for Petitioners' requested relief. The
Government characterizes Petitioners' request as one for judicial
oversight of executive policies and procedures at Guantanamo that
amounts to nothing more than "second-guessing of the judgment of
the military's medical professionals." Opp'n at 12.
In Rasul v. Bush, 124 S.Ct. 2686, 2699 (2004), the Supreme
Court held that "the federal courts have jurisdiction to
determine the legality of the Executive's potentially indefinite
detention of individuals who claim to be wholly innocent of
wrongdoing."*fn8 The Court noted that the "courts of the
United States have traditionally been open to nonresident
aliens," id. at 2698, and that none of its prior decisions
"categorically exclude aliens detained in military custody
outside the United States from the `privilege of litigation' in
U.S. courts." Id. (internal quotations and citations omitted);
see also id. at 2700 (Kennedy, J., concurring) ("there are circumstances in which the courts
maintain the power and the responsibility to protect persons from
unlawful detention even where military affairs are implicated").
In order to give meaning to the Supreme Court's decision in
Rasul, and to allow Petitioners "the privilege of litigation in
the U.S. courts," procedures must be fashioned, as necessary and
appropriate, to facilitate Petitioners' access to their counsel
and the Court, as well as counsel's access to their clients, so
that Petitioners have the tools to "present their own cases."
As Judge Kollar-Kotelly reasoned in Al Odah v. United States,
02-828 (October 20, 2004 Mem. Op. at 8-9), the case law
pertaining to both the federal habeas statute and the analogous
state habeas statute, 28 U.S.C. § 2254, as well as the All Writs
Act, 28 U.S.C. § 1651, "permits this Court to fashion procedures,
by analogy to existing procedures, in aid of the Court's
jurisdiction and in order to develop a factual record as
necessary for the Court to make a decision on the merits of
Petitioners' habeas claims."
In Harris v. Nelson, 394 U.S. 286, 299 (1969), the Supreme
Court held that "a district court may, in an appropriate case,
arrange for proceedings which will allow development . . . of the
facts relevant to disposition of a habeas corpus petition." The
Court explained that such proceedings are necessary in order to
allow habeas petitioners "careful consideration and plenary
process of their claims including full opportunity for
presentation of the relevant facts." Id. at 299. Relying on the
All Writs Act, the Supreme Court ruled that "when the Court
considers that it is necessary to do so in order that a fair and meaningful
evidentiary hearing may be heard," it "may . . . authorize such
proceedings with respect to development . . . of the facts . . .
as may be necessary or appropriate in aid of [its jurisdiction]."
Id. at 300.
Based on this authority, Judge Kollar-Kotelly reasoned that
"Petitioners are entitled to present the facts surrounding their
confinement to the Court. It is equally clear that the Court is
authorized to craft the procedures necessary to make this
possible, in order that the Court might fully consider
Petitioners' challenge to their detention." Al Odah, 02-828
(October 20, 2004 Mem. Op. at 10). She then concluded that the
District Court has the authority to appoint counsel to represent
It follows that in order to properly represent Petitioners,
their counsel must have access to them, must be able to
communicate with them, and must be made aware if their clients
are in such fragile physical condition that their future ability
to communicate is in imminent danger. In Battle v. Armontrout,
902 F.2d 701, 702 (8th Cir. 1990), the Eighth Circuit concluded
that a petitioner appealing a state habeas ruling was entitled to
be represented by counsel because his ability to investigate the
facts was "seriously impaired by his incarceration," and "the
factual and legal issues [were] sufficiently complex" that
counsel was necessary "to develop [petitioner's] arguments and
focus the court's analysis." Id. at 702. The reasoning of the Eighth Circuit is directly applicable to
the present circumstances. Unless Petitioners' counsel can have
access to their clients, and know their true medical conditions,
including whether they are in imminent danger of death, so as to
counsel them in order to persuade them to stay alive, it is
obvious that their ability to present their claims to the Court
will be irreparably compromised.
In Bounds, the Supreme Court reaffirmed its prior decisions
that "prisoners have a constitutional right of access to the
courts," and that such access must be "adequate, effective, and
meaningful." 430 U.S. at 821-22. While Bounds dealt with the
obligation of prisons to "assist inmates in the preparation and
filing of meaningful legal papers through the establishment of
adequate law libraries or other means," id. at 828, its
underlying principles are applicable here.
In these circumstances in particular, access to the Court means
nothing without access to counsel. Petitioners are from foreign
countries, most, if not all, have been detained for close to four
years, do not speak English, and are in all likelihood totally
unfamiliar with the United States legal system. As such, they
have "no alternative form of legal assistance available to them."
Id. at 823 (citing Johnson v. Avery, 393 U.S. 483 (1969)). In
sum, access to counsel by Petitioners is illusory unless counsel
have sufficient access to their clients to be informed about
their current physical condition. For all these reasons, the Court concludes that Petitioners
have a substantial likelihood of success on their access to
C. Injury to the Government
The Government has made no representation that the national
interest will be threatened or burdened by granting Petitioners
certain narrowly tailored relief.*fn9 The Court is keenly
aware of the logistical burdens associated with monitoring and
providing medical care for those participating in the hunger
strike. See Tr. at 46-47. However, considering that, at least
as of the day of the hearing, there were only 24 detainees
participating in the hunger strike, this logistical burden is
simply not substantial when weighed against the irreparable
injury Petitioners face.
D. Public Interest Concerns
The Court finds the public interest will be served by ensuring
that habeas petitioners have access to counsel so that they can
meaningfully challenge their detention, and the courts can
adjudicate their claims. While it is true that the "public has a
strong interest in assuring that the military operations and
medical care provided at Guantanamo are not interrupted,
overly-burdened, and second-guessed," Opp'n at 18, and that the
courts should not be "in the business of running prisons,"
Inmates of Occoquan v. Barry, 844 F.2d 828, 841 (D.C. Cir. 1988), the
relief granted herein is narrowly drawn so as not to unduly
interfere in the day-to-day operations at Guantanamo, and will
cause only minimal clerical burdens to the Government.
The Supreme Court has granted Petitioners the right to
challenge their detentions. In order to do so in a meaningful
way, they must have access to counsel and to the Court. Such
access is particularly necessary where a detainee's life and
health are in serious danger.
Accordingly, balancing the imminent and irreparable harm
Petitioners face, as well as their right to counsel, which
requires that counsel be able to communicate with them, against
the lack of any prejudice to the Government and our national
security interests, as well as the minimal burden placed on
personnel at Guantanamo, the Court concludes that Petitioners are
entitled to the following limited relief:
(1) The Government shall provide notice to Petitioners' counsel
within 24 hours of the commencement of any forced feeding of
(2) For those Petitioners who are being force fed, the
Government shall provide to Petitioners' counsel:
a. medical records spanning the period beginning one week prior
to the date forced feeding commenced; and b. provision of medical records shall continue, at a minimum,
on a weekly basis until forced feeding concludes.*fn10
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