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AL-JOUDI v. BUSH

October 26, 2005.

MAJID ABDULLA AL-JOUDI, et al., Petitioners,
v.
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

MEMORANDUM OPINION

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.

I. BACKGROUND

  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 ¶ 15.

  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 original).

  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 ...


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