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Tumani v. Obama

February 23, 2009

KHAN TUMANI ET AL., PETITIONERS,
v.
BARACK H. OBAMA ET AL., RESPONDENTS.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No. 145

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART THE PETITIONER'S MOTION FOR EMERGENCY RELIEF

I. INTRODUCTION

The petitioner, Mohammed Khan Tumani (ISN 312), requests that the court order the respondents to (1) transfer him from Camp VI to Camp IV;*fn1 (2) provide him with access to his "father";*fn2 (3) allow an independent psychiatric and medical evaluation; (4) produce medical records; and (5) cease further interrogations until the records and evaluation are analyzed. Because the petitioner's first, second and fifth requests pertain to conditions of confinement, the court denies these requests for lack of jurisdiction. As to the third request, the court denies without prejudice the petitioner's request for an independent medical evaluation because there is no indication that one is necessary at this time. The court, however, grants the petitioner's fourth request seeking medical records so that counsel may determine whether the petitioner is capable of assisting in this case or whether other action is necessary.

II. FACTUAL & PROCEDURAL BACKGROUND

Pakistan handed the petitioner over to the United States in 2002 when the petitioner was 17 years old. Pet'r's Mot. at 2. He has been subjected to repeated interrogations during which, according to the petitioner, he has been pressured to provide information about his father, another Guantanamo detainee. Id. at 3. Since the petitioner's counsel began contacting him, it has reportedly been "extraordinarily difficult" to have a conversation because the petitioner has been "completely withdrawn." Id. at 4. According to petitioner's counsel, the difficulties have multiplied over the last year as reflected by the petitioner placing several letters in the legal mail system smeared with human feces, hitting his head against the walls of his cell for hours and attempting to take his own life. Id. at 4-5. The petitioner's "highly anxious and frenetic behavior" has purportedly precluded counsel from having productive conversations with him regarding his case. Id. at 5, 7. Counsel believe that the petitioner's mental condition is "declining rapidly." Id., Ex. 2.

The respondents offer a markedly different view of the petitioner's condition. They state that medical professionals who regularly observe the petitioner have "uncovered no evidence whatsoever of any [psychological] disease or disorder." Resps.' Opp'n at 6. In addition, the petitioner has allegedly "consistently denied any suicidal thoughts or mental disorders" and has "show[n] organized behavior and readily carrie[d] on conversations." Id. The respondents describe the alleged attempted suicide as a superficial scratch on his forearm requiring only antibiotic ointment. Id. And the petitioner allegedly told an Arabic interpreter that he did not want to commit suicide but wanted to draw attention to his request for access to his father. Id. at 7. Similarly, by banging his head against his cell wall, the petitioner was purportedly protesting his separation from his father and bringing attention to his request to move to Camp IV. Id. According to a psychologist at Guantanamo, the petitioner admitted that he did not want to kill himself by hitting his head and that he "had not hit his head very hard." Id., Ex. 2 ¶ 32.

On February 9, 2009, the petitioner filed an emergency motion for an independent psychiatric and medical evaluation, production of medical records and additional urgent relief. The court ordered an expedited briefing schedule that same day. Briefing was completed on February 17, 2009.

III. ANALYSIS

A. The Court Denies the Petitioner's Requests for Altering Conditions of Confinement

Part of the petitioner's multi-faceted request is that the court adjust the conditions of his confinement by transferring him to a less secure facility, providing access to his father and prohibiting further interrogations. Congress, by enacting 28 U.S.C. § 2241(e)(2), prohibits courts from "hear[ing] or consider[ing] any [] action against the United States . . . relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of a Guantanamo detainee. This court has already determined that the Supreme Court, in Boumediene v. Bush, 128 S.Ct. 2229 (2008), did not invalidate this provision and affirmed that courts do not have jurisdiction to alter the conditions of a detainee's confinement in Guantanamo. In re Guantanamo Bay Detainee Litigation, 570 F. Supp. 2d 13, 19 (D.D.C. 2008).Since that ruling, other judges in this district have agreed that Boumediene did not invalidate 28 U.S.C. § 2241(e)(2). In re Guantanamo Bay Detainee Litigation, 577 F. Supp. 2d 312, 314 (D.D.C. 2008) (Hogan, J.); Khadr v. Bush, 587 F. Supp. 2d 225, 234-37 (D.D.C. 2008) (Bates, J.); Adahi v. Obama, No. 05-280, at 11-16 (D.D.C. Feb. 10, 2009) (Kessler, J.). Accordingly, the court denies the petitioner's requests regarding transfer, access and interrogations.

B. The Court Grants the Petitioner's Request for Medical Records and Denies Without Prejudice the Petitioner's Request for an Independent Medical Evaluation

The Supreme Court has stated that the court must ensure that the petitioner has meaningful access to counsel, which includes the ability to adequately communicate with him. Bounds v. Smith, 430 U.S. 817, 821-22 (1977) (stating that a habeas petitioner's access to the court must be "adequate, effective, and meaningful"); Zuhair v. Bush, No. 08-0864, at 2 (D.D.C. Dec. 22, 2008); Al-Joudi v. Bush, 406 F. Supp. 2d 13, 21-22 (D.D.C. 2005) (explaining that "in order to 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 imminent danger"). The respondents remark that the petitioner's counsel have not demonstrated "significant interference with Petitioner's ability to assist," and therefore, the petitioner's requests are attempts to "second-guess . . . the treatment provided by the government." Resps.' Opp'n at 10-11. This characterization, however, contradicts the petitioner's stated intent, to wit, that the requests are designed to prevent "irreparable legal, mental and physical harm" so that he can "communicate effectively with his attorneys about his case." Pet'r's Mot. at 8-9. Counsel support these assertions with accompanying declarations detailing their interactions with the petitioner. Id., Ex. 3 ¶¶ 7, 16-20; Reply, Ex. 1 ¶¶ 3, 10-11, Ex. 2 ¶ 6. Because the petitioner's counsel explain why they believe the petitioner is incapable of assisting in the habeas ...


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