ZUHAIR v. BUSH et al

REPLY to opposition to motion re MOTION to Compel PRODUCTION OF COMPLETE MEDICAL RECORDS AND FOR ORDER PERMITTING INDEPENDENT MEDICAL EXAMINATION

D.D.C.September 4, 2008

CLEARED FOR PUBLIC FILING BY THE CSO UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AHMED ZAID SALEM ZUHAIR, Petitioner, v. GEORGE W. BUSH, ROBERT GATES, REAR ADM. MARK H. BUZBY, and ARMY COL. BRUCE VARGO, Respondents. Civil Action No. 08-864 (EGS) PETITIONER’S REPLY IN FURTHER SUPPORT OF HIS MOTION TO COMPEL PRODUCTION OF MEDICAL RECORDS AND FOR ORDER PERMITTING INDEPENDENT MEDICAL EXAMINATION Petitioner Ahmed Zaid Salem Zuhair, through undersigned counsel, submits the following reply in further support of his Motion to Compel Production of Medical Records and for Order Permitting Independent Medical Examination (dkt. no. 50). Mr. Zuhair seeks two very specific, narrow, forms of relief here. First, he asks that Respondents provide a copy of the very medical records they have already consulted in preparing their response to Mr. Zuhair’s Motion. Second, he requests that Respondents allow a physician to accompany his counsel so as to perform an independent medical examination. Such relief is necessary and appropriate to protect the Court’s jurisdiction in this case. The relief is necessary to the proper functioning of this habeas proceeding because a detainee’s health is inextricably linked to his ability to participate meaningfully in his habeas proceedings and to consult with counsel, especially if he has been subjected to brutal force-feeding and denials of medical treatment for years. It is also appropriate because, contrary to the Government’s caricature of it Case 1:08-cv-00864-EGS Document 61 Filed 09/04/2008 Page 1 of 16 2 as a form of “micro-management” of Mr. Zuhair’s health care, Gov’t Opp. at 2, the relief sought is narrowly tailored and less taxing than others provided by district and circuit courts in Guantánamo cases. These measures would also be warranted as a form of preliminary injunctive relief to prevent serious and irreparable harm to Mr. Zuhair. In order to obscure the straightforward form of relief at issue here, the Government ignores clear language in the Supreme Court’s decision in Boumediene v. Bush, 128 S.Ct. 2229 (2008), in an attempt to launch this Court on a jurisdictional wild goose chase. It also selectively draws on the very medical records it seeks to withhold in order to claim that Mr. Zuhair’s complaints are “without merit.” Gov’t Opp. at 20. Respondents invite this Court to abuse its discretion by presumptively favoring its selective citation of written records available only to the Government over Mr. Zuhair’s statements, made consistently over the course of several years and generally corroborated by independent accounts. Instead of refuting Mr. Zuhair’s detailed account, the Government has either inadequately responded to them or done no more than demonstrate the existence of a material dispute of fact, whose resolution requires an evidentiary hearing and, indeed, the type of independent assessment that Mr. Zuhair seeks. BACKGROUND Since Mr. Zuhair filed his Motion, additional information about his health from meetings with counsel on August 5th and 6th has just been unclassified, further underscoring the necessity of an independent assessment of his health. While his ongoing health problems – including kidney and urinary pain and severe pain in his ankles and other joints – remain unabated, Mr. Zuhair also developed a serious stomach infection in mid-June. See September 4, 2008 Declaration by Ramzi Kassem (“Kassem Decl.”), attached as Ex. 1 at ¶ 65. During his twice- daily force-feeding sessions, Mr. Zuhair now experiences an intense spreading pain, “like a fire Case 1:08-cv-00864-EGS Document 61 Filed 09/04/2008 Page 2 of 16 3 lighting up” in his stomach as soon as the nutrient mixture flows out of the feeding tube. Mr. Zuhair was not permitted to see a physician about this problem until August 4, some six weeks later, when he was told that he has a stomach infection. Id. at ¶ 66. Mr. Zuhair believes the infection is caused by unsanitary procedures in his force-feeding process. Mr. Zuhair told another physician in Guantánamo that staff wash feeding tubes for all the hunger strikers simultaneously in the same bucket prior to reuse and only replace them with new tubes at detainees’ request, prompting surprise on the doctor’s part, who told him that staff “are supposed to remove fresh tubes from the packaging before detainees’ eyes at every feeding session.” Id. at ¶¶ 67-8. Further, Mr. Zuhair has observed Guantánamo personnel playing with feeding tubes with their bare hands before replacing them—without cleansing or purification—in open boxes that remain exposed to dust, iguanas, and various rodents (the clinic has doors and windows open at all times). Id. at ¶ 69. Mr. Zuhair also believes that he and other hunger-strikers are being surreptitiously drugged to render them more compliant. The Department of Defense Inspector General is currently investigating improper drugging of detainees by medical personnel at Guantánamo. See Letter from the Department of Defense Inspector General to the Center for Constitutional Rights, attached as Ex. 3 to Pet’r’s Mot’n to Compel. Mr. Zuhair has indicated his willingness to cooperate with such an investigation by submitting to an interview on the topic in the presence of counsel. Id. at ¶ 71. ARGUMENT For the reasons discussed below, this Court has jurisdiction under Boumediene to consider Mr. Zuhair’s claim and to order the relief he seeks. In the context of his prolonged hunger strike and the denials of medical care that he has experienced, an independent assessment Case 1:08-cv-00864-EGS Document 61 Filed 09/04/2008 Page 3 of 16 4 of Mr. Zuhair’s health is crucial to his ability to participate in his habeas proceedings. The Government seeks denial of this motion simply by rejecting Mr. Zuhair’s detailed account, thought they fit with a well-documented pattern of misconduct at Guantánamo. Moreover, the Government’s factual denials chiefly and selectively rely on the very medical records it seeks to withhold, further demonstrating that the production of such records would not be unduly burdensome. I. This Court Has Jurisdiction Over Mr. Zuhair’s Claim This Court’s jurisdiction over Mr. Zuhair’s habeas petition is governed by the habeas corpus statute, 28 U.S.C. § 2241, and it has the power to take all measures “necessary and appropriate” to aid that jurisdiction under the All Writs Act, 28 U.S.C. § 1641, including the power to grant the limited relief sought here. A. Boumediene Fully Restored This Court’s Habeas Jurisdiction Over This Claim This Court’s jurisdiction pursuant to 28 U.S.C. § 2241 was fully restored by the Supreme Court in its landmark ruling in Boumediene v. Bush, 128 S.Ct. 2229 (2008). Previously, 28 U.S.C. § 2241(e) purported to divest federal courts of jurisdiction over habeas and all other legal claims brought by detainees at Guantánamo. This provision had been added to the habeas statute by Section 7 of the Military Commissions Act of 2006 (labeled “Habeas Corpus Matters”), which superseded similar amendments in the 2005 Detainee Treatment Act. The Supreme Court invalidated this amendment, holding that “the law we identify as unconstitutional is MCA § 7, 28 U.S.C.A. §2241(e).” Boumediene, 128 S.Ct. 2229 at 2275. Hence, the Court restored § 2241 to its previous state, observing that the statute “would govern in MCA § 7’s absence.” Id. at 2239. Notwithstanding this clear holding, the Government claims that this Court is presumptively unable to exercise jurisdiction over any question other than what it calls “core Case 1:08-cv-00864-EGS Document 61 Filed 09/04/2008 Page 4 of 16 5 habeas” functions1, namely the legality of detention. The Government argues that under Boumediene, the first part of section 7 of the MCA, 28 U.S.C. § 2241(e)(1), is unconstitutional “only insofar as it denies habeas review to detainees . . . who raise a core habeas challenge.” Gov’t Opp. at 9.2 The government also contends that “Boumediene’s holding does not invalidate the second part of section 7” at all. Gov’t Opp. at 10.3 This attempt to parse the repeal of MCA § 7 contradicts the plain language of Boumediene and is unsupported by relevant precedent. As noted above, Boumediene declared MCA § 7 unconstitutional without limiting its holding to only one subsection thereof or to some notion of “core” habeas, nor does the MCA itself make any distinctions between “core” and “non-core” habeas functions. See Boumediene, 128 S.Ct. 2229 at 2240 (“§ 7 of the [MCA] . . . operates as an unconstitutional suspension of the writ.”). Boumediene thus rendered MCA § 7 void in its entirety. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“[A]n act of the legislature, repugnant to the constitution, is void.”). This is especially so because nothing in the DTA or MCA purported to modify statutory habeas procedures in the event that the repeal proved ineffective. Indeed, the Supreme Court in Boumediene expressly noted the absence of 1 The Government’s position that this Court should read into Boumediene a critical distinction between “core” and “non-core” habeas claims is perplexing. The term “core” appears in that decision only once, and only when citing Schlup v. Delo, 513 U.S. 298, 319 (1995), for the proposition that habeas “is, at its core, an equitable remedy.” There is not a single statement in Boumediene to support the Government’s apparent position that Mr. Zuhair’s claims are not “core” habeas claims or, for that matter, why it would make any difference as a matter of law if they were not. 2 The first part of MCA § 7, codified as 28 U.S.C. 2241(e)(1) purported to strip federal courts of jurisdiction over any “application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” 3 The second part of MCA § 7, codified as U.S.C. § 2241(e)(2), purported to strip federal courts of jurisdiction over “any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” Case 1:08-cv-00864-EGS Document 61 Filed 09/04/2008 Page 5 of 16 6 such a provision, pointing out that neither the MCA nor the DTA contain any “saving clause.” 128 S. Ct. at 2266. The Government’s attempt to rewrite Boumediene also cuts against relevant Supreme Court precedent. The DTA was enacted in response to the Supreme Court’s holding in Rasul v. Bush, 542 U.S. 466, 483-84 (2004), that § 2241 is available to Guantánamo detainees. Similarly, the MCA was enacted after the Court found that an earlier version of § 2241(e)(1) did not apply to pending habeas petitions. Hamdan v. Rumsfeld, 548 U.S. 557, 576-77 (2006). Thus, prior to enactment of MCA § 7, Rasul and Hamdan made clear that Guantánamo detainees had a right to invoke the statutory habeas corpus procedure under 28 U.S.C. § 2241. This Court must now read § 2241 without the clause added by MCA §7.4 As a result, lower courts must apply the statute without the unconstitutional provision. See United States v. Klein, 80 U.S. (13 Wall.) 128, 147-48 (1871) (disregarding unconstitutional statute that divested court of jurisdiction and reinstating judgment obtained under prior statutory scheme); accord Armstrong v. United States, 80 U.S. (13 Wall.) 154 (1871) (same); Henry M. Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362, 1387 (1953) (“If the court finds that what is being done is invalid, its duty is simply to declare the jurisdictional limitation invalid also, and then proceed under the general grant of jurisdiction.”). See also Boumediene v. Bush, 476 F.3d 981, 1011 (D.C. Cir. 2007) (Rogers, J., dissenting) (stating that the habeas repeal was unconstitutional, and that the proper outcome was to hold that “on remand the district courts shall follow the return and traverse procedures of 28 U.S.C. § 2241, et seq.”). This Court should not accept 4 The Government also cites a recent Memorandum Opinion that read Boumediene as only partially invalidating MCA § 7. In re Guantanamo Bay Detainee Litigation, No. 05-CV-01509, Mem. Op. at 6 (dkt. no. 151) (D.D.C. Aug. 7, 2008) (Urbina, J.). The jurisdictional issue, however, was never fully briefed in that case, as Judge Urbina himself recognized when he lamented having to decide the issue from “the unfortunate position of evaluating the respondents’ jurisdictional arguments without the benefit of counterargument.” Id. at 5. Case 1:08-cv-00864-EGS Document 61 Filed 09/04/2008 Page 6 of 16 7 Respondents’ invitation to narrow or modify the Supreme Court’s express holding.5 Accordingly, this case is in the same position it would be in if the MCA had never been enacted: subject to the statutory procedures that Congress enacted, which set out “a very specific process that the court and parties must follow.” Khalid, 355 F. Supp. 2d at 323 n.15 (Leon, J.) (citing 28 U.S.C. §§ 2241 et seq.). B. The Relief Requested Is Necessary to Protect This Court’s Jurisdiction Over Mr. Zuhair’s Habeas Petition and Is Not “Ancillary” to It Even if the Government were correct in contending that 28 U.S.C. § 2241(e) somehow survived Boumediene, this Court would still have jurisdiction because the relief requested by Mr. Zuhair is integral to his habeas proceedings and not a “collateral” or “ancillary” issue as the Government claims. Gov’t Opp. at 9. Accordingly, this Court has the power under the All Writs Act to order the requested relief in order to protect its hold over this case. See Belbacha v. Bush 520 F.3d 452 (D.C. Cir. 2008). The Government misreads Belbacha to stand for the proposition that courts can only act to protect their jurisdiction pending appellate review and that this Court’s ability has evaporated now that “[t]he Supreme Court already has ruled in Boumediene.” Gov’t Opp. at 17. Nothing in Belbacha supports such a narrow reading. Instead, the Court of Appeals held that relief was available notwithstanding its own previous holding in Boumediene v. Bush, 476 F.3d 981 (2007) that the MCA divested courts of habeas jurisdiction over Guantánamo. See Belbacha, 520 F.3d at 456 (“[T]he district court has the authority to grant Belbacha preliminary relief because the 5 The Government’s reliance on Ayotte v. Planned Parenthood, 546 U.S. 320 (2006) and the plurality opinion in Regan v. Time, Inc., 468 U.S. 641 (1984) is similarly unavailing here. In both cases, lower courts took sweeping steps to invalidate unconstitutional provisions through a permanent injunction against a state statute and an invalidation of a federal regulatory mechanism, respectively. In those situations, the Supreme Court properly curbed the lower courts’ actions on the basis that courts should not invalidate more of statutes than necessary. Here, the Supreme Court has already acted with the requisite precision, using clear language to invalidate a subset of a statutory enactment not to block policy mechanisms but merely to restore previously existing federal court jurisdiction. Case 1:08-cv-00864-EGS Document 61 Filed 09/04/2008 Page 7 of 16 8 Suspension Clause colorably protects [his] claims.”). Indeed, the Court of Appeals explicitly noted that even the second part of MCA § 7 “does not displace [courts’] remedial authority, pursuant to the All Writs Act, to issue an ‘auxiliary’ writ ‘in aid’ of a ‘jurisdiction already existing.’” Id. at 458 (quoting Adams v. U.S. ex rel. McCann, 317 U.S. 269, 273 (1942)). Now that the Supreme Court has found detainees’ claims under the Suspension Clause to be not only colorable but indeed compelling and valid, the remedial authority recognized in Belbacha becomes more, and certainly not less, relevant. Similarly, the Government’s reliance on Munaf v. Geren, 128 S.Ct. 2207 (2008) to restrict the scope of the Great Writ, Gov’t Opp. 16, is misplaced here. The circumstances in Munaf are entirely distinguishable from Mr. Zuhair’s. In Munaf, the Court declined not to block a proposed transfer of detainees from U.S. military custody to Iraqi authorities, because to do so “would interfere with Iraq’s sovereign right to ‘punish offenses against its laws committed within its borders,’” id. at 2220 (citation omitted), and because the U.S. could not “shelter . . . fugitives from the criminal justice system of the sovereign with authority to prosecute them.” Id. at 2228. Key to the holding in Munaf were the facts that petitioners had traveled to Iraq voluntarily, were detained within the sovereign territory of Iraq at the behest of the Iraqi courts, and were charged with serious crimes and subject to criminal proceedings under Iraqi law. Id. at 2221 (“Given these facts, our cases make clear that Iraq has a sovereign right to prosecute Omar and Munaf for crimes committed on its soil.”). In contrast, Mr. Zuhair was abducted from Pakistan, is being held within the exclusive jurisdiction of the United States pursuant only to the authority of the executive branch of the U.S. government, and has been charged with no crime by the United States or Cuba. Thus, Mr. Zuhair’s requested relief would not implicate issues of foreign sovereignty. Case 1:08-cv-00864-EGS Document 61 Filed 09/04/2008 Page 8 of 16 9 Mr. Zuhair’s access to his medical records and to a reliable medical assessment is not an ancillary issue or an attempt to litigate the conditions of his confinement but rather is necessary for this Court to exercise its undisputed jurisdiction over Mr. Zuhair’s habeas petition.6 Mr. Zuhair only seeks basic information about the effects of his detention on his own body. This is necessary to protect this Court’s hold over this case for two reasons. First and most obviously, Respondents’ actions continue to weaken Mr. Zuhair’s already-damaged health, threatening his ability to participate in the habeas proceedings. The Government’s claim that Mr. Zuhair is “in good health with no significant medical problems,” Declaration of Captain Bruce C. Meneley in support of Respondents’ Opposition to Motion to Compel (“Meneley Decl.”) at ¶ 48, attempts to sweep this concern under the rug and is improperly conclusory (see infra, Part III). Second, by denying Mr. Zuhair an independent and reliable assessment of his own health, Respondents are impacting his ability meaningfully to consult his attorneys. As a judge of this Court has recognized, the right to counsel “is illusory unless counsel have sufficient access to their clients to be informed about their physical condition.” Al-Joudi v. Bush, 406 F. Supp. 2d 13, 22 (D.D.C. 2005). Attorney visits to Guantánamo take place under extraordinarily restrictive 6 Moreover, the general convention that conditions of confinement are not cognizable on habeas – which the Government has improperly transmogrified into an ironclad rule for all time (habeas can “challenge one thing only: the fact of detention or its duration,” Gov’t. Opp. at 13) – carries less force here. This is because Guantánamo detainees have until now been denied parallel avenues for relief such as those built into the trial process itself or via constitutional tort claims under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and its progeny. The Supreme Court has repeatedly left open the propriety of habeas in some circumstances for forms of relief other than release. See Preiser v. Rodriguez, 411 U.S. 475, 499 (1973) (“[H]abeas corpus may … also be available to challenge such prison conditions. When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal.”) (internal citations omitted); Bell v. Wolfish, 441 U.S. 520, 527 (1979) (“[W]e leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of the confinement itself.”); see also Blair-Bey v. Quick, 151 F.3d 1036, 1042 (D.C. Cir. 1998) (“It is possible that habeas corpus might be available to challenge prison conditions in at least some situations.”); Glaus v. Anderson, 408 F.3d 382 (7th Cir. 2005) (“[I]n some circumstances civil rights actions and writs of habeas corpus may be coextensive.”). In each of these cases, the availability of alternative remedies allowed courts to avoid delineating the outer limits of the scope of habeas; here, no such alternative remedies are yet available. If indeed the Government’s sweeping misreading of Boumediene is correct and Guantánamo detainees cannot seek relief even for torture and abuse that “shock[] the conscience,” Rochin v. California, 342 U.S. 165, 209 (1953), then the circumstances imagined by the Supreme Court in Preiser and Bell calling for such a vigorous exercise of the Great Writ will, sadly, have come to pass. Case 1:08-cv-00864-EGS Document 61 Filed 09/04/2008 Page 9 of 16 10 conditions, and only a few times per year. In the absence of medical records and other information – and as long as Mr. Zuhair cannot be assured of the confidentiality of his written communications with counsel (dkt. no. 35) – such meetings present the only opportunities available to counsel to gauge Mr. Zuhair’s condition, taking time away from other issues requiring discussion. As Mr. Zuhair’s habeas proceedings progress, Mr. Zuhair needs to consult frankly and extensively with his counsel on difficult factual and legal questions that will determine his freedom. These deliberations, however, are compromised in numerous ways as long as they continue under the cloud of palpable concern over his physical health. II. The Relief Sought By Mr. Zuhair Is Narrowly Tailored and No More Burdensome Than Other Forms Of Relief Granted to Protect Jurisdiction Over Habeas Actions The Government caricatures the relief sought by Mr. Zuhair as an attempt to “micro- manage” operations at Guantánamo, Gov’t Opp. at 22, that would not only unduly burden personnel there, but would “prompt counsel for many detainees in other cases to demand the same type of remedy.” Id. at 27. The Government accordingly argues that such burdens would, for the purposes of preliminary injunctive relief under Fed. R. Civ. P. 65, substantially injure the government’s interests and harm the public interest. Id. at 25-7. In reality, Mr. Zuhair seeks nothing more than the provision of medical records easily accessible to Respondents and permission to bring an independent medical specialist with counsel for a visit. Courts have already ordered similar forms of relief without the proverbial sky falling in. The Government does not argue that the provision of medical records would be unduly burdensome, only that its “purpose” would be “intrusive.” Id. at 26. In doing so, the Government sidesteps the applicable legal standard. In assessing the propriety of preliminary injunctive relief, courts assay whether “an injunction will substantially injure the other party,” Serono Laboratories, Inc. v. Shalala, 158 F.3d 1313, 1317 (D.C. Cir. 1998), not whether the Case 1:08-cv-00864-EGS Document 61 Filed 09/04/2008 Page 10 of 16 11 motive imputed to the movant by the opposing party is “intrusive” or not. The lack of any “substantial injury” is best demonstrated by the Government’s selective reliance on Mr. Zuhair’s medical records in its opposition, see Meneley Decl., confirming that Respondents have Mr. Zuhair’s updated medical records at hand and that their production would not be unduly burdensome. The Government also argues that granting Mr. Zuhair’s motion would encourage a torrent of similar requests and divert resources from providing medical care to detainees. Gov’t Opp. at 27. The Government fails to mention that courts first ordered the production of Guantánamo detainees’ medical records three years ago without being inundated with such requests. Al-Joudi v. Bush, 406 F.Supp.2d 13 (D.D.C. 2005).7 The Government also does not explain how the mere transmission of records would unduly burden the work of the medical personnel who must continuously maintain and update them anyway. Moreover, if the availability of medical records to detainees as a matter of right in the Federal Bureau of Prisons under 28 C.F.R. § 513.42 is not unduly burdensome, it is unclear how the narrow relief requested here – production of one individual’s medical records based on a particularized showing of need – could be. Similarly, allowing a medical expert to accompany undersigned counsel to examine Mr. Zuhair would impose no significant costs or burdens on Respondents. This Court has granted similar relief in allowing a psychologist to accompany counsel for another detainee in Guantánamo. See Minute Entry Granting Pet’r’s Motion to Compel to Permit Psychologist to Accompany Counsel to Client Interviews, Batarfi v. Bush, 05-CV-409 (D.D.C. Aug. 20, 2008). 7 The Government has also produced Guantánamo medical records in the context of Freedom of Information Act litigation. See Oleskey v. U.S. Dep’t of Defense, 05-CV-10735 (D. Mass.). As noted in Mr. Zuhair’s Motion, months of efforts on the FOIA track have only encountered stonewalling from the Government. Pet’r’s M’tn at 9- 10. Case 1:08-cv-00864-EGS Document 61 Filed 09/04/2008 Page 11 of 16 12 And neither form of relief is more “intrusive” or “burdensome” than the authority of district courts to enjoin transfers under Belbacha, which would require Respondents to continue to hold, watch over, and provide for detainees at taxpayer expense. III. The Government’s Selective Use of Mr. Zuhair’s Medical Records to Seek Denial of His Motion Is Improper The Government attempts to sweep aside Mr. Zuhair’s detailed account as “without merit,” Gov’t Opp. at 20, by relying on the Meneley Declaration. The Government accordingly argues that, for the purposes of a preliminary injunction under Fed. R. Civ. P. 65, Mr. Zuhair cannot demonstrate imminent irreparable injury or likelihood of success on the merits. Gov’t Opp. 19-21, 25. The specific allegations in the Meneley Declaration concerning grossly inadequate or deliberately withheld medical care, however, are not based on personal knowledge; moreover, the declaration selectively cites the very records the Government is withholding. There is no reason why this Court should presumptively accord the Government’s partial account of Mr. Zuhair’s records such conclusive weight, especially in light of Mr. Zuhair’s consistent description of the medical mistreatment and willful neglect he has experienced. The deliberate denial of medical care by Guantánamo personnel for hunger strikers and the abuse and humiliation they endure daily has been corroborated by other detainees in detail that is strikingly similar if not identical to Mr. Zuhair’s account. See Declaration of Julia Tarver Mason dated September 4, 2008 (“Mason Decl.”), attached as Ex. 2, at ¶¶ 2-5, 7-14. To the extent there is evidence of such misconduct in Mr. Zuhair’s records, it is highly unlikely to emerge if the Government is the only party that can examine them. This is especially the case with Mr. Zuhair’s concerns that Guantánamo medical personnel are drugging him without his consent, Kassem Decl. at ¶ 70, a practice that is now under investigation by the Department of Defense Inspector General’s Office. Other instances of medical misconduct, such Case 1:08-cv-00864-EGS Document 61 Filed 09/04/2008 Page 12 of 16 13 as Mr. Zuhair witnessing Guantánamo personnel playing with feeding tubes with their bare hands without cleaning or sterilizing them before reuse, Kassem Decl. ¶ at 67, are highly unlikely to be in the records at all, which is why an independent examination is also necessary. The Government’s “just trust us” attitude cannot sweep away the serious harm that Mr. Zuhair faces and has already endured. The Meneley Declaration on its face does not adequately answer some of the most serious medical concerns raised by Mr. Zuhair. For example, the declaration dismisses Mr. Zuhair’s concerns about the possibility of gout for two reasons. First, it cites the results of a uric acid analysis performed nearly five years ago, in November 2003, Meneley Decl. at ¶ 30, prior to Mr. Zuhair’s hunger strike and the implementation of Respondents’ retaliatory denials of medical care. Such a dated test cannot serve as a basis for dismissing the possibility of gout today. See Declaration of Dr. Robert Cohen dated September 4, 2008 ( “Cohen Decl.”), attached as Ex. 3, at ¶ 10. Second, Dr. Meneley’s “records review identified no recurring severe joint pain syndrome.” Meneley Decl. at ¶ 30. Yet on the very same page, the declaration discusses Mr. Zuhair’s knee, ankle, and back pains – symptoms that are consistent with severe joint pain syndrome – and alleges that he has been prescribed with pain medication, including Ultram. Id. at ¶ 31-2. See Cohen Decl at ¶ 9. The information in the Meneley Declaration by itself does little to allay the concerns raised by Mr. Zuhair. Similarly, the persistence of Mr. Zuhair’s kidney and urinary pain since 2003 remains troubling. Although the Meneley Declaration indicates that a helical CT scan and other tests were undertaken in the early years of Mr. Zuhair’s unlawful detention, the most recent use of any diagnostic imaging (an X-ray) dates back to April 2004, Meneley Decl. at ¶ 23, which, again, was prior to Mr. Zuhair’s hunger strike and the institution of Respondents’ practice denying Case 1:08-cv-00864-EGS Document 61 Filed 09/04/2008 Page 13 of 16 14 proper medical care. In the four years since, Mr. Zuhair’s symptoms have clearly not been resolved or even properly diagnosed, notwithstanding occasional urinalyses. The persistence of painful symptoms that could indicate serious health conditions would normally occasion use of different and varied diagnostic techniques to identify the problem. Cohen Decl. at ¶¶ 12-3. Yet the Meneley Declaration seems to indicate the opposite – a refusal to perform anything more than a perfunctory analysis during the period of Mr. Zuhair’s hunger strike. The Government’s insufficient answers to Mr. Zuhair’s allegations concerning his kidney problems and potential gout fail to defeat his request for relief. As for Mr. Zuhair’s other complaints, far from “directly refut[ing]” them, Gov’t Br. at 6, the Government has at most created a material dispute of fact whose resolution requires a hearing. “[I]f there are genuine issues of material fact raised in opposition for a preliminary injunction, an evidentiary hearing is required.” Cobell v. Norton, 391 F.3d 251, 261 (D.C. Cir. 2004). Furthermore, “it is an abuse of discretion for the court to settle the question on the basis of documents alone, without an evidentiary hearing.” Id. Such a dispute exists over one of the central factual claims at stake, namely that medical personnel at Guantánamo have repeatedly and explicitly told Mr. Zuhair that he would not receive certain kinds of needed medical treatment unless and until he ended his hunger strike. Pet’r’s M’tn at 2-3. The Meneley Declaration, unsurprisingly, denies these statements, ostensibly on the basis of a review of Mr. Zuhair’s medical records. Meneley Decl. at ¶ 10. Although such denials should occasion an evidentiary hearing in which this Court could take testimony via videoconferencing from Mr. Zuhair as well as from the Guantánamo medical personnel who have long denied him treatment, for the reasons outlined above the relief requested can also be properly dispensed without a hearing. Case 1:08-cv-00864-EGS Document 61 Filed 09/04/2008 Page 14 of 16 15 CONCLUSION For the reasons stated above, Petitioner’s Motion to Compel Production of Medical Records and for Order Permitting Independent Medical Examination should be granted, either pursuant to this Court’s power under the All Writs Act or as a preliminary injunction pursuant to Fed. R. Civ. P. 65. Dated: September 4, 2008 Respectfully submitted, ____/s/_________________ Ramzi Kassem Michael J. Wishnie Supervising Attorneys Anand Balakrishnan Madhuri Kumar Darryl Li Law Student Interns Allard K. Lowenstein International Human Rights Clinic National Litigation Project Yale Law School 127 Wall Street, New Haven, CT 06511 (203) 432-0138 ramzi.kassem@yale.edu Counsel for Petitioner Case 1:08-cv-00864-EGS Document 61 Filed 09/04/2008 Page 15 of 16 16 CERTIFICATE OF SERVICE I hereby certify that on September 4, 2008, I caused a true and accurate copy of Petitioner’s Reply In Further Support of His Motion to Compel Production of Medical Records and For Order Permitting Independent Medical Examination to be served upon the following counsel for Respondents by electronic filing via the Court’s ECF system: Arlene Groner, Esq. U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave, NW Washington, DC 20530 _____/s/_____________________ DARRYL LI Allard K. Lowenstein International Human Rights Clinic National Litigation Project Yale Law School 127 Wall Street New Haven, CT 06511 (203) 432-0138 Case 1:08-cv-00864-EGS Document 61 Filed 09/04/2008 Page 16 of 16 EXHIBIT 1 Case 1:08-cv-00864-EGS Document 61-2 Filed 09/04/2008 Page 1 of 8 Case 1:08-cv-00864-EGS Document 61-2 Filed 09/04/2008 Page 2 of 8 Case 1:08-cv-00864-EGS Document 61-2 Filed 09/04/2008 Page 3 of 8 Case 1:08-cv-00864-EGS Document 61-2 Filed 09/04/2008 Page 4 of 8 Case 1:08-cv-00864-EGS Document 61-2 Filed 09/04/2008 Page 5 of 8 Case 1:08-cv-00864-EGS Document 61-2 Filed 09/04/2008 Page 6 of 8 Case 1:08-cv-00864-EGS Document 61-2 Filed 09/04/2008 Page 7 of 8 Case 1:08-cv-00864-EGS Document 61-2 Filed 09/04/2008 Page 8 of 8 EXHIBIT 2 Case 1:08-cv-00864-EGS Document 61-3 Filed 09/04/2008 Page 1 of 5 DECLARATION BY JULIA TARVER MASON, ESQ. I, Julia Tarver Mason, declare that the following statements are true to the best of my knowledge, information, and belief: 1. I am a member of the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP ("Paul, Weiss"). Paul, Weiss currently represents habeas petitioner Abdul Rahman Shalabi, ISN 042, in the habeas action captioned Al Oshan v. Bush, 05-cv-520 (RMU). 2. Mr. Shalabi has been on a hunger strike for three years, despite persistent efforts by personnel at Guantanamo to coerce him physically and psychologically to end his non-violent protest. In my meetings with him over the last three years, he has described to me in painful detail how he has been treated by the military since he began his hunger strike in August 2005. 3. According to Mr. Shalabi, from the early days of the hunger strike, military personnel attempted to persuade the strikers from their protest by making the process of force-feeding excruciatingly painful. Mr. Shalabi described to me how on one occasion in the first weeks of the strike, an unnamed military doctor, "Dr. X," forcefully inserted a large, 18 French tube into the nose of a Yemeni detainee. According to Mr. Shalabi, Dr. X removed the tube, covered in blood, and then reinserted it again into the prisoner. This was done repeatedly until the detainee lost consciousness. 4. Then, in January 2006, the military stepped up its efforts to end what had become a widespread strike when it introduced a restraint chair to immobilize detainees while they were being force-fed. Another Paul, Weiss client who was on a hunger strike prior to his recent transfer to Saudi Arabia referred to the restraint chairs as 1 Case 1:08-cv-00864-EGS Document 61-3 Filed 09/04/2008 Page 2 of 5 "execution chairs." These chairs were used to feed each detainee without regard to a detainee's resistance to enteral feeding. Mr. Shalabi himself did not resist enteral feedings, nor at 104 pounds, could he have offered any meaningful resistance. 5. Nonetheless, Mr. Shalabi and others were placed in the chair and forced to ingest an excessive volume of liquid nutrients and water. Mr. Shalabi explained this unusual form of coercion whereby he was continually — and dangerously — fed excessive amounts of Ensure until he vomited repeatedly and ultimately defecated on himself while restrained in the chair. He was left in the chair, in this humiliating and degrading position, sitting in his own excrement, for hours. 6. Mr. Shalabi also has complained that prisoners have been taken to the chair to be fed during prayer time and were told that if they wanted to pray, they had to end their hunger strike. 7. They were also subjected to harsh conditions of confinement as a form of punishment for refusing to eat. Many of the hunger strikers - with fragile mental health to begin with — have been placed in solitary confinement for extended periods of time. They have been housed in cells set to such low thermostat temperatures that they are literally freezing in their cells - with guards refusing their pleas for adequate blankets or other cover to keep them warm. 8. The hunger strikers have been forbidden to possess "comfort items" such as soap or toothpaste. 9. They have also been deprived the opportunity to send or receive non-legal mail. Case 1:08-cv-00864-EGS Document 61-3 Filed 09/04/2008 Page 3 of 5 10. I met with Mr. Shalabi again on June 14, 2007, with my colleague Sarah Jackel and an interpreter. We had scheduled a special trip to meet with him after learning that Mr. Shalabi was in poor health and anxious to talk to counsel about his health and well being. When we arrived, Mr. Shalabi reported that guards injured his wrist, slamming it against a wall while he was wearing shackles. Although the injury caused Shalabi such serious pain that he believed his wrist was broken, Mr. Shalabi was not given any medication. He was told that in order to receive such medication, he would have to end his hunger strike. 11. And although Mr. Shalabi acknowledged in June 2007 that there had been some positive changes in the way that hunger strikers have been treated - reporting that he is no longer fed an excessive volume of food and no longer vomits blood during his daily feedings - he believes that hunger strikers continue to be punished for participating in the strike. He explained that they are still being denied privileges belonging to other detainees, including receipt of family mail and access to the detainee library. 12. I met with Mr. Shalabi again on May 1, 2008 with my colleague Martin Flumenbaum and a translator. Mr. Shalabi was still on a hunger strike and was suffering from a painful sinus inflammation as a result of the continuous insertion and removal of the feeding tube, several times each day for the last three years. 13. Mr. Shalabi said that he was still not allowed to receive books and was only given limited time to use writing materials and to review his legal materials. 14. Mr. Shalabi also reported that some time ago his head was swollen and he was in pain. He asked for medication but was once again told that he would only Case 1:08-cv-00864-EGS Document 61-3 Filed 09/04/2008 Page 4 of 5 be given medication if he spoke to the interrogators. He did not speak to the interrogators, and ultimately had to be taken to the hospital. 15. I declare, under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 4th day of September 2008 Washington, D.C. Case 1:08-cv-00864-EGS Document 61-3 Filed 09/04/2008 Page 5 of 5 EXHIBIT 3 Case 1:08-cv-00864-EGS Document 61-4 Filed 09/04/2008 Page 1 of 9 Case 1:08-cv-00864-EGS Document 61-4 Filed 09/04/2008 Page 2 of 9 Case 1:08-cv-00864-EGS Document 61-4 Filed 09/04/2008 Page 3 of 9 Rober t L Cohen MD . , Page #1 ROBERT L. COHEN, M.D. 130 Barrow Street, Apt. 102 (H) 212-242-5062 New York, NY 10014 314 West 14th Street (W) 212-620-0144 New York, NY 10014 (F) 212-691-8588 EDUCATION A.B., Princeton University, 1970 M.D., Rush Medical College, 1975 POSTGRADUATE TRAINING Residency, Medicine, Cook County Hospital, 1978 Chief Residency, Cook County Hospital, 1979 BOARD CERTIFICATION Internal Medicine - 1978 PROFESSIONAL EMPLOYMENT Clinical Practice in General Internal Medicine New York City 1988 - Attending Physician AIDS Center St. Vincent's Hospital and Medical Center October, 1990 - 2000 Medical Director AIDS Center St. Vincent's Hospital and Medical Center, NYC January 1989 - October 1990. Vice President for Medical Operations New York City Health and Hospitals Corporation Case 1:08-cv-00864-EGS Document 61-4 Filed 09/04/2008 Page 4 of 9 Rober t L Cohen MD . , Page #2 1986-1988 Director Montefiore Medical Center Rikers Island Health Services 1982 - 1986 Associate Medical Director Montefiore Medical Center Rikers Island Health Services 1981 - 1982 Attending Physician Department of Medicine Cook County Hospital 1979 - 1981 FACULTY APPOINTMENTS Clinical Assistant Professor Department of Clinical Epidemiology and Population Health Albert Einstein College of Medicine 1985 - FACULTY COMMITTEES Vice Chairman Institutional Review Board Montefiore Medical Center 1984 - 1986 Member Institutional Review Board Hunter College, City University of New York 2000 B present Chair St. Vincent's Hospital AIDS Surveillance Committee 1989 -1997 Case 1:08-cv-00864-EGS Document 61-4 Filed 09/04/2008 Page 5 of 9 Rober t L Cohen MD . , Page #3 MEDICAL EXPERT -- PRISON HEALTH Federal Court Appointed Monitoring of Health Care in Prisons and Jails Michigan, Hadix v. Johnson, 2003 B present Court Appointed monitor for oversight of medical care of 4 prisons in Michigan Ohio, Austin v. Wilkinson, 2002 - 2006 Member of two person Medical Monitoring Team to monitor compliance with settlement agreement regarding medical care in Ohio State Penitentiary New York State, Milburn v. Coughlin, 1989 -- present Continuing review of compliance with health care consent agreement . Connecticut, Doe v. Meachum, 1990 -- present Medical expert at trial and court appointed monitor of compliance with settlement agreement covering care of all HIV infected prisoners in Connecticut. Florida, Costello v. Wainwright, 1983 through 1988 Review of compliance with settlement agreement in all Florida Prisons. Washington, D.C. 1986 - 2000 Court appointed medical expert involved in monitoring compliance with several consent agreements regarding medical care at the DC Jail as well as DC prisons at Lorton (VA). State Court Appointed Monitor Philadelphia, PA, Jackson v. Hendricks, 1991 -- 1999 Review of compliance with consent agreement on medical care within Philadelphia jails. Department of Justice Appointed Medical Expert Cook County Jail, 1982 (Chicago, IL) Essex County Youth House (Newark, NJ), 1995 to 1999 Case 1:08-cv-00864-EGS Document 61-4 Filed 09/04/2008 Page 6 of 9 Rober t L Cohen MD . , Page #4 RECENT PRESENTATIONS American Exceptionalism: The Health Consequences of Mass Incarceration 2nd Annual Conference of the International Journal of Prison Health Care Varna, Bulgaria, October 21, 2007 Quality of Care for Prisoners with HIV infection Association of the Bar of the City of New York, January 10, 2007 Prison Health Care B Does Court Intervention Improve Quality of Care? New York University Law School, Health Law Forum, February 15, 2006 The Commission on Safety and Abuse in America's Prisons Expert Testimony on the Quality of Medical Care, Newark, NJ, July 20, 2005 http://www.prisoncommission.org/statements/cohen_robert.pdf Lessons Learned from Rights Based Approaches to Health Emory University Conference Center, Atlanta, Georgia, USA, April 16, 2005 BOARD AND COMMITTEE MEMBERSHIPS Housing Works Board Member, AIDS Day Treatment Centers and Housing Programs 1994 - present Fortune Society Board Member 1991 - present National Commission on Correctional Health Care Representative, American Public Health Association 1994 B present World Health Organization B European Region Health in Prison Project Case 1:08-cv-00864-EGS Document 61-4 Filed 09/04/2008 Page 7 of 9 Rober t L Cohen MD . , Page #5 APHA Invited Observer 2003 B present PUBLICATIONS. Cohen-R., Health and Public Health Advocacy for Prisoners, in Puisis-M, et.al, Clinical Practice in Correctional Medicine, Elsevier, 2006. deLone-M, Cohen-R, et.al, Standards for Health Services in Correctional Institutions, 3rd Edition, American Public Health Association 2003 Cohen-R, Mass Incarceration: A Public Health Failure, in May, J, Building Violence, Sage Publications, 1999 Cohen-R., The Medical Intake Examination, in Puisis-M, Cohen-R, et al, Textbook of Correctional Medicine, Mosby, St. Louis, 1998. Frickhofen-N, Abkowitz-JL, Safford-M, Berry-M, Antunez-De-Mayolo-J., Astrow-A, Cohen- RL, King-LN,et.al., Persistent B19 Parvovirus Infection in Patients Infected with HIV-1: A treatable cause of anemia in AIDS., Annals of Int. Med.113, 12, 926-933, Dec. 15, 1990. Laudicina, S., Goldfield, N., Cohen, R., Financing for AIDS Care, The Journal of Ambulatory Care Management,Vol. II, No. 2, 55-66, May 1988. Selwyn, Peter A., Feiner, Cheryl, Cox, Charles P., Lipshutz, Carl & Cohen, Robert L., Knowledge about AIDS and High-Risk Behavior Among Intravenous Drug Users in New York City, AIDS, Vol. 1, No. 4, 247-254, 1987. Cohen, Robert L., Case Studies: A Prisoner in Need of a Bone Marrow Transplant, Hastings Center Report, Vol. 17, No. 5, 26-27, 1987. Bayer, Ronald, Carol Levine, Susan M. Wolf et. al. 1986. HIV Anti-body Screening: An Ethical Framework for Evaluating Proposed Programs. JAMA 256(3): 1768-1774, 1986. Cohen, Robert L., Oliver Dennis, Pollard-Sigwanz, Cathy, Leukopenia and Anergy as Predictors of AIDS, JAMA, Vol. 255, No. 10, 1289, 1986. Whitman S, King L, and Cohen R., Epilepsy and Violence: A Scientific and Social Analysis. In: Whitman S, and Hermann B, ed. The Social Dimensions of Psycho pathology. Oxford University Press, 1986. Cohen, R., AIDS: The Impending Quarantine, Bulletin of the Health Policy Advisory Committee, Vol. 17, No. 3, 9-14, 1985. Whitman S, Coleman T, Patron C, 6.0 Case 1:08-cv-00864-EGS Document 61-4 Filed 09/04/2008 Page 8 of 9 Rober t L Cohen MD . , Page #6 Desi B, Cohen R, King L, Epilepsy in Prison: Elevated Prevalence and No Relationship to Violence. Neurology, Vol. 34, No. 6, June, 1984. Cohen, Robert L., Imprisoned Plasma Donors: A Medical-Ethical Case and Comment, Journal of Prison & Jail Health, Vol. 2, No. 1, 41-46, 1982. Case 1:08-cv-00864-EGS Document 61-4 Filed 09/04/2008 Page 9 of 9