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Salam Al-Ghizzawi v. Bush

April 8, 2008

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 at the United States Naval Base in Guantanamo Bay, Cuba ("Guantanamo"), and he has challenged the legality of his confinement in a petition for a writ of habeas corpus. This Court previously ordered a stay in this case pending resolution of related appeals in the D.C. Circuit, see July 19, 2006 Order, and the Court is now awaiting the Supreme Court's decision in Boumediene v. Bush, 476 F.3d 981 (2007), cert. granted, 127 S.Ct. 3078 (June 29, 2007), which was argued on December 5, 2007.

Currently before the Court is Al-Ghizzawi's New Emergency Motion for Medical Treatment and Medical Records. As the title implies, this is not the first time Al-Ghizzawi has requested preliminary injunctive relief seeking this Court's direct intervention into the medical treatment provided to individuals in United States custody at Guantanamo. After careful consideration, the Court previously denied Al-Ghizzawi's similar motion filed in August 2006, finding that he had "not provided evidence of misconduct on the part of respondents with respect to his medical care." Al-Ghizzawi v. Bush, 2006 WL 2844781, at *4 (D.D.C. Oct. 2, 2006). And the Court previously denied his October 2006 motion for reconsideration, stating that "the Court still cannot conclude that petitioner's health is in immediate danger from deficient medical treatment." Nov. 2, 2006 Mem. Op. & Order at 5 (Dkt. No. 56). Now, once again, Al-Ghizzawi has failed to demonstrate on this most recent occasion that he is not receiving thorough, appropriate, professional medical care. The Court will therefore deny his new emergency motion.*fn1

BACKGROUND

Al-Ghizzawi, a man in his mid-forties who has been in the custody of the United States since late 2001, arrived at Guantanamo in June 2002. Pet'r's Mot. Ex. C (Aff. of Attorney H. Candace Gorman) ¶¶ 1, 5. In his opening brief to this Court, Al-Ghizzawi made grave accusations about the U.S. government's failure to provide any medication or treatment for his alleged "life threatening illnesses." Pet'r's Mot. at 3. As the briefing progressed, however, his accusations regarding the lack of medical care weakened, and he was forced to concede that his most serious allegation was, in fact, inaccurate. Because he still maintains that the government is providing inadequate medical care, however, it is necessary to detail the parties' accounts of his physical condition, the medical treatment he has been offered and is (or is not) receiving, and the relief he now requests.

Al-Ghizzawi first makes the serious allegation that Guantanamo medical personnel diagnosed him with acquired immune deficiency syndrome ("AIDS") and offered him no medication or treatment for this condition. Id. at 2, 9. Contrary to Al-Ghizzawi's unsubstantiated assertions, however, the sworn declaration of Dr. Bruce C. Meneley, the Commanding Officer, Naval Hospital, Commander, Joint Medical Group, Guantanamo Bay, Cuba, states that "Mr. AlGhizzawi is not correct." Resp'ts' Opp. Ex. B (Declaration of Captain Bruce C. Meneley, M.D. ("Meneley Decl.")) ¶ 5. As is the typical processing procedure, Al-Ghizzawi was tested for human immunodeficiency virus ("HIV") upon his arrival at Guantanamo, and the result was negative. Resp'ts' Response Ex. C (Declaration of Captain Bruce C. Meneley, M.D. ("Second Meneley Decl.")) ¶ 7. In case a detainee contracted HIV just before his arrival at Guantanamo, which would be too recent to show up on the first round of testing, each detainee is tested again several weeks later. Id. Al-Ghizzawi's test result was again negative. Id. According to Dr. Meneley, "[s]ubsequent HIV tests were performed in an attempt to reassure Mr. Al-Ghizzawi that he is not HIV positive." Id.

Each and every test result has been negative, and Al-Ghizzawi has been informed of these results. Meneley Decl. ¶ 5. Although Al-Ghizzawi contends that the medical staff told him he was HIV positive, there is no evidence of this, other than Al-Ghizzawi's unsubstantiated assertions, and his medical file contains multiple notations "stating that he does not believe the physicians who have told him he is HIV negative." Id. As Dr. Meneley points out, to tell AlGhizzawi anything other than a truthful diagnosis would violate the rules and protocols under which the Guantanamo medical staff operate. Id. Respondents therefore argue that Al-Ghizzawi "is simply not telling the truth or has somehow deceived himself into believing something that is not true." Resp'ts' Opp. at 16. The Court need not determine the source of confusion over this serious issue, however, because Al-Ghizzawi seeks relief for his medical conditions -- and AIDS is not one of his medical conditions. Al-Ghizzawi's counsel now accepts Dr. Meneley's representations and concedes "that Al-Ghizzawi does not, in fact, suffer from AIDS." Pet'r's Supp. Mem. at 1. Hence, this issue, which sounded so alarming at first, does not warrant this Court's further attention.

Al-Ghizzawi next asserts that he has been diagnosed with a severe liver infection, has not been given any medication or treatment for this ailment, and was "scared out of having a liver biopsy provided by camp medical staff at Guantanamo." Pet'r's Mot. at 9 (citing Ex. A, Affidavit of Abdul Hamid Al-Ghizzawi). Al-Ghizzawi's status as a Hepatitis B carrier was confirmed shortly after his arrival at Guantanamo. At that time, he was advised of the screening and treatment options that were available to him. As the Court noted in its Memorandum Opinion & Order on October 2, 2006, "[b]ecause 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." Al-Ghizzawi, 2006 WL 2844781, at *2 (noting that those tests included "liver function tests, complete blood counts, electrolytes, tumor marker, alpha-fetoprotein, serum liver transaminases, and bilirubin levels").

Laboratory results from November 2006 and August 2007 "revealed that Mr. AlGhizzawi's viral markers were slightly elevated above what would normally be seen with a typical Hepatitis B carrier." Meneley Decl. ¶ 6.*fn2 Because these results suggested the possibility of active Hepatitis B and/or cirrhosis of the liver, but were not diagnostic of either, medical personnel recommended that a liver biopsy be performed. Id. After Al-Ghizzawi was informed of the nature, risks, and benefits of the proposed procedure, he refused to consent to the biopsy. Id. ¶ 7. The medical staff thereafter conducted an ultrasound of Al-Ghizzawi's liver and found no evidence of cirrhosis or carcinoma. Id. ¶ 6. Al-Ghizzawi then subsequently "refused to have blood tests for monitoring his liver enzymes and viral load," despite the warning that the refusal of these tests could be detrimental to his health. Id. ¶ 7.

With his reply brief, Al-Ghizzawi submitted an affidavit from Dr. Juerg Reichen, who is the Chief of Hepatology at the University Hospital of Bern, Switzerland. Pet'r's Reply Ex. E (Affidavit of Dr. Juerg Reichen ("Reichen Aff.")). Relying on the information presented in respondents' briefs and declarations, Dr. Reichen takes issue with the need for a liver biopsy and points out that an active Hepatitis B determination can often be made from blood test results. Id. ¶ 5.4. Dr. Meneley acknowledges this possibility in his response but reiterates that here "Mr. AlGhizzawi's blood test results are not diagnostic of precore mutant Hepatitis B; the tests do not indicate either anti-HBe positive or an HBV DNA viral load of >10(5) ." Second Meneley Decl. ¶ 3. Hence, relying on standards that include the American Association for the Study of Liver Diseases practice guidelines, Guantanamo medical personnel recommended a liver biopsy as the "gold standard and most medically appropriate test that would allow [them] to make definitive treatment decisions." Id.*fn3 Because Al-Ghizzawi has failed to consent to follow-up procedures, the medical staff has been unable to make an appropriate determination of his condition.*fn4

Following counsel's visit with Al-Ghizzawi on February 26 and 27, 2008, a supplemental memorandum was submitted containing additional symptoms that Al-Ghizzawi complained of and additional symptoms that counsel observed. According to counsel, Al-Ghizzawi found it difficult to talk, appeared jaundiced, complained of diarrhea, had difficulty urinating, complained about the eyeglasses he was prescribed, felt constant body aches and pains, and experienced itchy skin. Pet'r's Supp. Mem. at 6-9. Al-Ghizzawi told his counsel that a Guantanamo doctor had prescribed him an antibiotic along with other medication, but because the guards gave him very cold water to swallow the pills, he would not take the medication. Id. at 6-7. He apparently asked the doctor to include a note with the medication instructing the guards to bring him warm water, but the doctor allegedly declined this request. Id. Al-Ghizzawi also told his counsel that he had refused to allow any blood tests or a liver biopsy. Counsel noted that two of the tests the Guantanamo doctors wanted to perform were tests that Dr. Reichen had also recommended. Id. at 8-9.

Responding to the allegations in Al-Ghizzawi's supplemental memorandum, the government briefly describes the treatment he has received in the last year alone: "blood testing, ultrasound, the offer of a liver biopsy, medical counseling, prescription eyeglasses, ten medical visits related to gastrointestinal complaints, and treatment for H.Pylori." Resp'ts' Response at 5. After Al-Ghizzawi returned the eyeglasses that were prescribed for him, he was scheduled for another optometry visit even though he has indicated that he does not want to see an optometrist. Second Meneley Decl. ¶ 8. The medical staff at Guantanamo is also prepared to conduct an "ultrasound of the liver, routine follow up blood work, tissue transglutaminase IgA, anti-gliadin antibody tests, . . . a percutaneous liver biopsy," and tests for gluten sensitive enteropathy as soon as Al-Ghizzawi gives his consent. Id. ¶¶ 2, 5.*fn5

On March 2, 2008, just days after counsel's visit, a Guantanamo physician met with AlGhizzawi for forty-five minutes, counseling him about the need for follow-up testing. Id. ¶ 2. Despite the encouragement of Al-Ghizzawi's counsel and the Guantanamo medical staff, AlGhizzawi persisted in his refusal to allow any additional testing. Id. During the meeting with the physician, Al-Ghizzawi did not complain of any significant body pains, did not exhibit difficulty speaking, and did not appear to suffer from jaundice. Id. ¶ 4.

Upset at the care he has received, Al-Ghizzawi, through his counsel, now seeks an order from this Court requiring the government to provide him with emergency medical treatment and requiring the government to tender his complete medical records to counsel.*fn6 In his reply and supplemental memorandum, counsel for Al-Ghizzawi focuses on how distrustful Al-Ghizzawi is ...


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