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Al-Ghizzawi v. Bush

October 2, 2006

ABDUL HAMID ABDUL SALAM AL-GHIZZAWI, PETITIONER,
v.
GEORGE W. BUSH, ET AL., RESPONDENTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION & ORDER

Petitioner Abdul Hamid Abdul Salam Al-Ghizzawi, a citizen of Libya, is currently detained by the United States at the United States Naval Base in Guantanamo Bay, Cuba ("Guantanamo"), and has challenged the legality of his confinement in a petition for a writ of habeas corpus. The Court ordered a stay in this case pending resolution of the appeals in In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443 (D.D.C. 2005), and Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005). See Al-Ghizzawi v. Bush, No. 05-cv-2378, Order (July 19, 2006) (staying case). This opinion resolves only petitioner's recently-filed emergency motion to compel access to medical records and to require emergency medical treatment.

As a preliminary matter, respondents argue that the United States Court of Appeals for the District of Columbia Circuit is vested with exclusive jurisdiction over petitioner's motion. The impact of the Detainee Treatment Act of 2005, Pub. L. No. 109-148, § 1005(e), 119 Stat. 2739, 2742, on this Court's jurisdiction over pending habeas cases is one of the issues now pending before the Court of Appeals. Moreover, new legislation entitled the Military Commissions Act of 2006, S.3930, 109th Cong. (2006), has just been passed by Congress but has not yet been signed by the President; it, too, raises a serious question regarding this Court's continuing jurisdiction over this and other Guantanamo detainee cases. The Court does not find it necessary to resolve that jurisdictional question for purposes of this motion because, for the reasons that follow, petitioner clearly is not entitled to the relief he seeks.

BACKGROUND

Petitioner, a man in his mid-forties, has been in the custody of the United States since late 2001, Pet'r's Mem. at 2, and arrived at Guantanamo in June 2002, Resp'ts' Opp'n Ex. 1 (Decl. of Captain Ronald L. Sollock, M.D., Ph. D. ("Sollock Decl.")) ¶ 10. Because petitioner alleges that he is being provided with inadequate medical care, it is necessary to detail the parties' accounts of petitioner's physical condition, the medical treatment petitioner has been receiving, and the course of treatment petitioner now requests.*fn1

Petitioner states that his health has deteriorated steadily over the course of his detention. Pet'r's Mem. Ex. B (Aff. of Attorney H. Candace Gorman ("Gorman Aff.")) ¶ 4. At a meeting with counsel in July 2006, petitioner described his symptoms of poor health, which include weight loss of between ten to fifteen kilos (twenty-two to thirty-three pounds); constant and severe abdominal, back, and leg pain; stomach bloating and the appearance of two black lines on his stomach; and digestive problems, including vomiting and diarrhea. Id. ¶ 5. Petitioner also complained to counsel of pain so severe in recent months that it renders him unable to stand or run, and on one occasion caused him to pass out. Id. Petitioner's counsel further asserts that petitioner appeared to be jaundiced and in pain during their July 2006 meeting. Id. ¶ 7.

Petitioner informed his counsel that he had been to the medical clinic at Guantanamo on several occasions and had been given pain medication by a nurse on at least one occasion. Id. ¶¶ 11, 12. Petitioner asserts, however, that he "was not treated" for his health problems during his clinic visits. Id. ¶ 11.

According to Captain Ronald L. Sollock, Commander of the Naval Hospital at Guantanamo, detainees are treated at a twenty-bed facility with a medical staff consisting of approximately one hundred military personnel, including five medical doctors, one physician's assistant, and myriad technicians and nurses. Sollock Decl. ¶ 3. For medical treatment beyond the capability of the detention hospital, detainees are transferred to the Naval Base Hospital at Guantanamo, where they can also be seen by outside specialists if the care even at the Naval Base Hospital is insufficient. Id. ¶ 5. All detainees are given a complete physical examination upon their arrival at Guantanamo, and they can obtain medical care at any time by making a request to a guard or to one of the medical personnel who make rounds on the cellblock every day. Id. ¶ 4.

Contrary to petitioner's claims, respondents assert that petitioner has been in good health since his arrival at Guantanamo, id. ¶ 10, and has in fact gained over ten pounds during his detention, id. ¶ 11. Respondents also assert that petitioner has not complained to medical staff about stomach bloating or digestive problems, and that petitioner is able to stand.*fn2 Id. ¶ 17.

During petitioner's initial physical examination at Guantanamo, medical personnel noted mild abdominal tenderness. Id. ¶ 12. Because of his history of Hepatitis B, which was confirmed shortly after the initial physical exam, petitioner has been given routine evaluations that include ultrasound evaluations and serum laboratory testing in accordance with guidelines issued by Guantanamo's gastroenterology department.*fn3 Id. The results of petitioner's most recent liver test in February 2006 and ultrasounds performed on petitioner's abdomen in October 2002 and May 2003 were all interpreted as normal. Id. Respondents assert that petitioner was given an opportunity for a follow-up ultrasound in January 2006 but refused. Id.

According to Captain Sollock, petitioner was given another physical examination on June 28, 2006, following complaints of abdominal pain. Id. ¶ 14. That examination produced no evidence of jaundice or other indications of liver problems, and petitioner allegedly declined further testing. Id. A routine follow-up evaluation was performed on September 5, 2006, during which mild abdominal pain was again noted. Id. ¶ 15. Medical personnel conducted additional blood work,*fn4 the results of which were either normal or were still pending as of September 8, 2006. Id. Respondents state that petitioner will also be scheduled for the next available appointment for an abdominal ultrasound. Id.

In support of his allegations of inadequate medical care, petitioner has submitted affidavits from two medical doctors who specialize in liver disease. The affidavit accompanying petitioner's motion is from Dr. Donald Jensen, a professor of medicine at the University of Chicago and Director of the Center for Liver Diseases Section of Gastroenterology at the University of Chicago Hospitals. See Pet'r Mem. Ex. C (Aff. of Dr. Donald Jensen ("Jensen Aff.")) ¶ 1. Dr. Jensen reviewed a list of the symptoms that petitioner described in his July 2006 meeting with counsel. Id. ¶ 9. Based on those symptoms, plus the additional symptoms of chilling easily and having a possible history of Hepatitis B, and with the caveat that it is difficult to diagnose petitioner without reviewing his medical records, Dr. Jensen suggested that petitioner might be suffering from liver cancer. Id. ¶ 12. Dr. Jensen described a range of blood and urine tests that he typically would perform on a patient presenting the symptoms described by petitioner.*fn5 See id. ¶ 13.

Dr. Jensen submitted a supplementary affidavit after he reviewed Captain Sollock's description of the medical care petitioner has been receiving at the detention hospital. See Pet'r's Reply Ex. D (Supplemental Aff. of Dr. Donald Jensen ("Jensen Suppl. Aff.")) ¶ 15. Based on that description, Dr. Jensen stated that the guidelines for a patient with chronic Hepatitis B, which call for regular monitoring that includes ultrasound testing, are not being followed in petitioner's case. Id. ¶16. Dr. Jensen also suggests that petitioner should be tested for Hepatitis C and delta, and undergo an upper endoscopy to rule out gastrointestinal diseases that might be related to his abdominal pain.*fn6 Id. ΒΆΒΆ 17, 18, 20. Identical observations were made by petitioner's second ...


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