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UNITED STATES DISITUCT COURT FOR TriE DISTRICT OF GOLtJMBIA

AhmmedGhulamRabbani, § § Petitioner, § § V. § § No. l:0S-cv-0l607-RCL Donald J.TRUMFyctal. § • § Respondents. §

Memorandum Opinion: DenyingPetitioner's Emergency Motion for an Independent Medical Evaluation and treatment and Medical Records

Summary

The petitioner, Ahmmed Ghulam Rabbani, is a detainee at the U.S. naval station at

Guantanamo Bay. He hasbeen onhunger strike forfour of thelast thirteen years. There is some

question astowhether ornot the petitioneriscurrently hunger striking,' but the Court will, for the most part, assume that hishunger strike continues tothis day. Formuch of the tiniie during which

he was hunger striking, the petitioner was subjected to involuntary enteral feedings (force-

feedings). In September 2017, the new Senior Medical Officer (SMO) ofthe Joint Medical Group (JMG) at Guantanamo Bay detennined that the petitioner no longer needed diese involuntary feedings and ordered that they cease. The petitioner argues that thiscourse ofaction threatens his

life and consti^es deliberate indifference to his serious medical needs in violation ofhis Eighth

In its most recent filing, the Senior Medical Officer (SMO) at Ouantanamo Bay related to the Court that the petitioner told him that ho (the petitioner) waa not on ahunger strike anymore, (BCF #376-1 ^lO). But neifter the petitioner nor his counsel have confirmed or denied this representation. riLDD UllPCliaBAL OOirTAlKO PaOTDOTEP niPOlUlD'tTlOK 1

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Amendment rightto be free from cruel and unusual punishment as set forth in Estelh v. Gamble,

(1976).

The petitioner hasnow filed anemergency motion for a preliminary injunction seeking

thefollowing reliefunder eitherthedoctrine of Esidk andits progeny or pursuant to theAll Writs

Act,28U.S.C. § 1651(a):

(1) The production of his physical and mental records since July 2017; (2) A medical evaluation to be performed by a medical examiner chosen, by the petitioner'scounsel; (3) An order directing that the petitioner's chosen medical examinerbe permitted to provide the jpctitioner with any medical treatment the examiner deems necessary and appropriate and that the medical staff at Guantanamo Bay facilitate that • treatment; (4) The production of daily reports about the petitioner's physical and mental health; (5) An order requiring the respondents to follow procedures govemihg medical care provided to hunger-striking detainees that thepetitioner alleges were inplace prior to September 20, 2017—-i.e., that the medical staffat Guantanamo Bay resume force-feeding the petitioner; (6) An expedited briefing schedule.

Havingreviewed all ofthe briefings and exhibits submitted to it, the Court will DENY

the petitioner's motion in its entirety. While the Court finds that the petitioner has a serious

medical condition, the Court also finds that the petitioner isunlikely to be able to show that fhe medical staff at Guantanamo has l)ccn deliberately indifferent to that condition. Therefore, his

deliberate-indifference claim does not support preliminary injunctivc relief. The Court alsofinds

that relief pursuant to the All Writs Act is inappropriate because the petitioner isnot likely to be able to show tliat his life and health are in danger such thai this Court's jurisdiction is threatened. Bnc-kground

The petitioner, Ahmmcd Ghulam Rabbani, is a detainee at the U.S. naval station at

Guantanamo Bay. He has been onhunger strike for four of the last thirteen years. There is some question as to whether or not the petitioner is currently hunger striking, but tlie Court will, for the riLnDUIIDEllQEi'tlj 00?(TAl>iO PROTIjCTDD l>iron>.lATIO)I . 2

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most part, assume that hishunger strike continues tothis day. Formuch of the time during which

he was hunger striking, the petitioner was subjected to involuntary enteral feedings (force-

feedings).

In September 2017,thenew SeniorMedical OfiOcer (SMC) of theJointMedical Group

(JMG) at Guantanamo Bay determined that the petitioner no longer needed these involuntary

feedings and ordered that they cease. Upto this point, the petitioner and the respondents largely

agree. But beyond this point, the petitioner and the respondents diverge drasticaliy^ oflering

wholly different accounts of what policies concerning hunger strikers are currently in place at

Guantanamo and of the cunent stateofthepetitioner's health.- So different oxe theseaccounts that

th6 Court will provide sepaihte summaries of them. '

L The Petitioner's Account

The petitioneralleges that, as of September 19, 2017, the new SMO at Guantanamo

enacted a new policy under which the medical staff would no longer provide any involuntary

enteral feedings to hunger strikers, leaving them with only the options of eating normal food or starving todeath. Inaddition, the SMO ordered that the medical staffcease monitoring the hunger

strikers, leaving them without any medical care. The petitioner does not widito end his hunger strike, but healso does not wish to die. Beyond that, thepetitioner clouns thatevenifhewanted

to end his hunger strike, he could not do so because he isentirely unable to eat nonnal food because it would cause him to vomit and because he suffers from bleeding, indigestion, colon problems, ulcers, and other ailments. As such, the petitioner asserts that the end ofinvoluntary feedings is, for him, adeath sentence. He caimot eat, and so he must receive involuntary feedings or die. The petitioner alleges that his weight as ofSeptember 19, 2017, was 103 pounds. By September 26, he weighed a mere 97 pounds. He alleges that he has signs oforgan failure. He riLDDUUDDIlODjiiL 001 CTj'in^O PaOTDOTDD nirORIiLHTlOH 3

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alleges that hehasfallen down and lostmuscle control onmany occasions. Hesays that hesuffers

from heart arrhythmia, insomnia, hypertension, and chronic mental health issues. In short, the

petitioner allege thatwithout immediate injunctive relieve he will soon be dead.

The petitioner argues that this course of action threatens his life and constitutes

deliberate indifference to his serious medical needs inviolation of hisEighth Amendment right to

be free from cruel andunusual punishment as set forth in Estelle v. Gamblej

(1976).

Assuch hehasfiled anemergency motion fora preliminary injunction seekingthefollowing relief

under either thedoctrine of Eslelle and its progeny or pursuant to the All Writs Act, 28U.S.C. §

1651(a):

(1) The production of his physical and niental records since July 2917; (2) A 'medical evaluation to be performed by a medical examiner cHosen by (he petitioner's counsel; (3) An order directing that the petitioner's chosen medical examiner, be permitted to provide the petitioner with any medical treatmentthe examiner deemsnecessary and appropriate and that the medical staff at Guantanamo Bay frcilitate that treatment; (4) The production of daily reports aboutthe petitioner's physical and mental health; (5) An order requiring the respondents to follow procedures governing medical care provided to himger-strildng detainees that thepetitioner alleges were inplace prior to September 20, 2017—^1.6., that the medical staff at Guantanamo Bay resume force-feedingthe petitioner; (6) An expeditedbriefingschedule.

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II. The Government's Account

The petitioner was one of the detainees whose status on the list was reviewed. In this

review, the SMO notedthatthe petitioner's weight hadbeenrelatively stableat around 102 pounds

fordie pastyear(October2016- October2017). The SMOalso notedthat the petitioner had been

observed eating solid food on a daily basis (despite his claims of being on a hunger strike) and

making smoothies for himself. The SMO estiniated that the petitioner's daily caloric Intake was

approximately 1200 kilocalories per day. The SMO also noted that (contrary to the petitioner's assertions) the petitioner was physically and mentally active—climbing stairs; walking unassisted;

participating in recreational tune; engaging in conversation with the SMO, behavioral health unit

staff, and others; etc.

Based on all of these observations, the SMO determined that the petitioner was not malnourished and that involuntary feedings were no longer necessary to prevent death orserious harm tothe petitioner. Therefbre, the petitioner was removed from the list ofdetainees approved for involuntaryfeedings. PILDD UTtDDn OPj'iD " GOHTj'iniQ PROTDOTDD ntrOMirATIQlil

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The Government also denies that medical monitoiing of the petitionerceased once the

involuntary feedings ceased. According to tlie SMO, the petitionerwas, after his removal from

the list, at a minimum given daily visual evaluations by medical staff. The Government also

claims tliat it offered thepetitioner with specific medical procedures tailored tohismedical needs,

such as endoscopic examinations of his colon. But the Government asserts that the petitioner

refused all medical care offered to him, including dental care, gostroenterology evaluations, and

even the provision of vitamins. After the petitioner filed his motion, though, the petitioner was

examinedby medicalstaff. The Governmentclaims that this examination showed no evidenceof

anyof the physical ailments of which the petitioner and hiscounsel alleged tlie petitioner suffered.

Inshort, asofthe time of itsinitial response, the Government ai^serted that thepetitioner

wasunderweight, butotherwise healthy.

But the petitioner's condition deteriorated in the time after the Govemment filed its

response. Ina supplemental declaration, theGovemment informed theCourt that ithad placed the

petitioner back on the list of detainees approved for involuntary enteral feedings. According to

the Government, between October 13, 2017, and November 13, 2017, the petitioner's weight dropped from 102.4 pounds to 97.8 pounds. This dramatic weight. loss resulted inthe petitioner being approved for an involuntary feeding, which he received on November 14. The Govemment

asserts that the petitioner has received no more involuntary feedings because, since that time, the

petitioner has "compliantly drunk his prescribed nutritional supplement twice daily, thereby obviating the need for involuntary enteral feeding." (ECF #376 at 2). The Govemment further

asserts that while the petitioner has resumed consuming food, his weight has still dropped some, with the petitioner weighing 96.2 pounds as ofNovember 17,2017 (the most recent date for which

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the Court has data). Otherwise, however, the Government claims that the petitioner is in stable

condition.

III. The Court Believes the Government's Account

As the petitioner notes in his reply, the stark contrast between the facts alleged in the

petitioner's counsel's affidavits and those alleged bythe Government require the Court to make a

choice as to whom to believe. The Court credits the statements of the Government over those of

the petitioner and his counsel. The Government's representations.arc based on the affidavits of

the JMQ and the SMO. The JMG consists of trained medical professionals who have daily

interactions with thepetitioner. TheJMG'sandSMO-s affidavits arethorough and detailed. They

make note ofwhat bad about thepetitioner's health in addition to what is good. The petitioner's

counsel's affidavits, meanwhile, are borderline apocalyptic and not based on regular interactions

between the petition and a medical professional. The Court does not doubt that the petitioner's

counsel and expert psychiatristare well-intentioned, but the JMG and SMO are in a much better

position from which toevaluate thepetitioner, take accurate measurements of hisweight and other

vital signs, and observe his daily doings. In addition, the JMG and SMO have a better

understanding of the policies and decisions that govern the goings-on at Guantanamo. It is

understandable that the petitioner may misinterpret the decision to remove him and others from

the list ofpersons approved for involuntary feedings as a complete stop ofthe program because the petitioner likely would not have access to the full decision-making process. For these reasons, the Court believes tlie factual account given bytheGovernment.

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Legal Standards

I. Prellminai'y Injunctions

Apreliminary injunction is "an extraordinary remedy that may only be awarded upon aclear showing that the plaintiffis entitled to such relief" (Winter v. Natural Res, Def, Council inc.,

(2008)), "A plaintiffseeking apreliminary injunction must establish [1] that he is hkely to succeed on tiie merits, [2] that he is likely to suffer irreparable ham in the absence ofpreliminary relief, [3] that the balance ofequities tips in his favor, and [4] that an injunction is in the public interest." (Id at 20). By far the most important ofthese factors is the first. (Aamer V. Obama,

(D.C. Cir,2014)), Iftheplamtif&'petitioner cannot satisfy the first factor and show alikelihood ofsuccess on the merits, then it is not even necessary to consider the otherfactors—the preliminary injunction will be denied. (GreaterNew OrleansFairHons. Action Or V. HUD,

(D.C. Cir. 2011}). . Courts in the D.C. Circuit have distinguished betweenpreliminary injunctions thatseek to maintain the status quo and preliminary injunctions that seek to alter the status quo. Specifically, when apreliminary injunction that would change the status quo is sought, "the moving party must meet ahigh standard than in the ordinary case by showing clearly that he or she IS entitled to relief or that extreme or very serious damage will result from the denial of the injunction." (S^'eis v. U.S. Foreign Claims SetllemerU Comm %

(D.D.C. 2013)),

U. Deliberate Indifference to the Serious Medical Needs of Detainees In Estelle v. Gamble, the Supreme Court concluded "that deliberate indifference to serious medical needs of prisoners con.stitute3 the unnecessary and wanton infliction of pain

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proscribed by the Eighth Amendment." (

(internal quotations and citations

omitted)). The test for establishing that this standard has beenviolatedconsistsoftwo parts.

First, the petitioner must establish that his medical condition is "objectively,

sufficiently serious." (Farmer v. Bretman,

(1994)). Such a medical condition

must be "a condition of urgency, one thatmay produce death, degeneration, or extreme pain."

(Nielsen v. Rabin,

(2d Cir. 2014)(quoting Hathaway v. Coughlih, 37 F,3d63,66

(2dCir.l994))).

Second, the petitioner must establish that the medical officers had the requisite,

culpable state of mind—deliberate indifference. This deliberate-indifference state of mind

requires more thana mere showing of m^ical malpractice or neglect. (Esielle^ 429U.S. at 105-

06 ("[A] complaint that a physician has been negligent in diagnosing or treating a medical

condition does not state a valid claim of medical mistreatment under theEighth TVmendment.");

Brown v. District ofColumbia, 5H F.3d 1279,1283 (D.C, Cir. 2008)), Rather, it is equivalent to

"subjective recklessness as used inthecriminal law." (Farmer,

(1994)), As

such, flie detaining authority ortreating physician can violate thepetitioner's constitutional rights

"only ifheknows that [the petitioner] face[s] a substantial risk ofserious harm and disregards that

risk by failing to take reasonable measures to abate it." (Id. at 847). And finally, courts are less likely to find.that there has been deliberate indifference to.a serious medical need when that

medical need isthe result oforexacerbated by the petitioner's voluntary decisions. (See Brown v. Graham, No. 07-cv-1353,

at *13 n.3l (N.D.N.Y. Mar. 30,2010) (finding that the "fact that plaintiff risked undermining his health by conducting a voluntary hunger strike undercuts his claim ofdeliberate indifference to serious medical needs" and listing other cases that reached the same conclusion); Rodriguez v. Briley,

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that a prisoner cannot be permitted to "engineer" an Eighth Amendment violation by >villingly

goingon hunger strikeand then blaminghis captorswhen the foreseeable medicalcomplications

arise)).

UL The AU Writs Act

The All Writs Act,

(a), grants to all courts created by Congress the

power to "issue all writs necessary or appropriate in aid of their respective jurisdictions and

agreeable to theusages andprinciples of law." To beclear, theAll Writs Actdoesnotitselfcreate

orexpand a court's jurisdiction, it only grants to a court power *'in aid of protecting the court's

existing jurisdiction. (Clmtofr v. Goldsmith,

,534-^36 (1999)). Butjust because a

writ may be legitimately "in aid of a fcourt's existing jurisdiction does not mean thatdid court

may issue thatwrit under theAllWrits Act. Rather, theAllWrits Actonlyauthorizes theissuwce

of writs that are "agreeable to the usages and principles of law," (

(a)).

Determining whether a particular writ is"agreeable to theUsages and principles oflaw" requires

a court to examine the common law and other "usages and principles" that haveconstmitied the

issuance ofsuch writs "down through the years." (Jones v, Lilly, 37F.3d 964,968 (3d Cir. 1994); Rawlins v. Kansas,

(10th Gin 2013)).

TheAllWrits Actisa non-preferred remedy. Writsissued undertheAct areconsidered

"extraordinary measures," soif there are adequate, altematiye remedies at law orother measures that a court may take to resolve an issue without resorting to a writ, then a writ ought not be granted, (See Goldsmith,

* TTTCmiy. Dev. Corp. v. Barton,

, 1359 (11th Cir. 1978)). Despite providing an extraordinary remedy, courts have expressly recognized that the All Writs Act has a role to play in the habeas context. Accordingly, the Act permits a court "to enjoin almost any conduct which, left unchecked, would have.,. the practical effect of riLCDLniDDnoML OQirrADiO PaOTDOTCD ntrORMj^TIOH— 10

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diminishing the court's power to bring the litigation to a natural conclusion." (Klay t. United

Heahhgroup, Inc.,

(11thCir. 2004) (internal quotation omitted); see abo Ala.

Greats. Ry. Co. v. Thompson, 200U.S. 206,218 (1906) (federal courts"may arid should takesuch

action aswill defeat attempts to wrongfully deprive parties... of theprotection of their rights" in

the federal courts)). Such concerns are especially acute when the harm to a court'sjurisdiction

overthe detainee mayarise from the deathor incapacitation of the detainee.

Analysis

I. The Petitioner Is Not Likely to Prevail on the Merits of His Claims Under Either the "Deliberate IndlfTcrencc to Serious Medical Needs" Standard or the All Writs Act.

A. Deliberate Indifference to Serious Medical Needs

Thepetitioner is unlikely to prevail onthe merits of showing that the medical staffat

Guantanamo has been deliberately indifferent tohis serious medical needs. The.Court finds that

although thepetitioner docs have a serious (though self-inflictcd) serious medical need, there is no

reliable evidence tosupport thecontention thatthe medical siaffhas been indifferent to that need,

deliberately or otherwise.

1. The Petitioner Has a Medical Condition that Is Objectively, Sufficiently Serious.

First, the Court finds that the petitioner's weight loss, already low body weiglit, and

probable malnutrition (though mostly caused by his own hunger strike), in addition to possible, luidiagnoscd comorbidities, constitute an objectively, sufficiently serious medical need. Though the petitioner an'd the Government disagree as to almost every particular regarding the petitioner's health (as described in detail above), the Court finds that tlie Government's "Supplemental

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Declaration of the JTF-GTMO Senior Medical Officer Addressing Petitioner Rabbani's Current

Health and Enteral Feeding Status" essentially concedes this point. (ECF#37(5; EOF#376-1).

In the Supplemental Declaration,the SMO informed the Court that on November 13,

2017,he "recommended Mr.Rabbani forinvoluntkyenteral feedingbecause immediate treatment

was necessary to prevent death or serious harm." (ECF #376-1 ^4). According to the SMO, on

November 13 the petitioner weighed 97.8 pounds, 4,6 fewer pounds than he weighed one month

earlier. {Id ^5). This weiglit loss represents a 4.5% decrease in body weight in 30 days. And

while the petitioner remained physically active, tlic SMO observed a marked decrease in, the

petitioner's facia! fat and a change in the prominence of the petitioner's shoulder blades that

indicated &further loss of muscle mass. {Id), Based on thes'c observations, the SMO Concluded

thatthe petitioner"now had a medical indication for an involuntary medical procedureto prevent

death or serious harm." (Id). If, as the SMO says, the petitioner was at risk of death or serious

hama, it can hardly be denied that the petitioner's healUi was in "a condition of urgency, one that

may produce death, degeneration, or extreme pain." {Nielsen,

).

The petitioner was enterally fed only once foUowing the SMO's recommendation that

he be approved for involuntary feedings, and that feeding occurred on November 14,2017. (ECF

#376-1 116). According to the SMO's Supplemental Declaration, wbicb the Court finds credible,

the petitioner has since thai time compliantly consumed Ensure Plus in accordance with the JMG's

recommendations and has also (according to the guards at Guantanamo) eaten other food of his

own accord. {Id 1!1|7,10). .

But this does not change the Court's determination that the petitioner is sufiering from anobjectively, sufficiently serious medical condition. The petitioner's weight as ofNovember 17,

2017 (the most recent weight provided to the Court by the SMO) was 96.2 pounds, even lower riLDPURDDn ODAL OOHTjHIlia PllOTDOTDD ntrORtili'iTiIOH 12

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thanit wasa fewdaysearlierwhentheSMO recommended thepetitionerfor involuntary feedings.

{Id. ^10). In addition, the petitioner is anemic, has abnormal electrolytes, and remains at risk of

malnutrition.^ {Id. T118-10). The SMO himself states that once the petitioner longer has a medical indication for involunta^ enteial feeding, [the SMO] will request that tlie current

authorization for involuntary enteral feeding be revoked,^' implying that the petitioner'shealth is

still sufficiently at risk to justify involuntary feedmgs should he cease willingly to consume

nutrition. {Id. ^11). Andlastly, the SMO states that he is "concerned aboutthe possibility of an

underlying, incompletely differentiated niedical problem unrelated to his protest but possibly contributing to his successful ability to lose weight" {Id ^12).- In light of the petitioner's

continued eligibility for involuntary feeding and the possibility of comorbiditieS, the Court

concludes that the petitioner does have an objectively, sufficiently serious medical condition as

contemplated by Estelle and its progeny.

2. The SMO and JMG at Guanlanamo Have Not Been Deliberately Indifferent to the Petitioner's Serious Medical Needs.

Having established that he has a serious medical condition, the petitioner must now

showthatthosein chargeof his medical care at Guantanamo have beendeliberately indifferent to

his medical needs. This the petitioner fails to do.

The petitioner alleges that onSeptember 19,2017, the SMO had "ordered thatmedical

staffforego . .. long-standing policy and stop force-feeding the hunger strikers and cease the

^Concerning the risk ofmalnutrition, the SMO says that the petitioner "demonstrates physical signs ofmalnutrition without biochemical evidence ofmalnutrition." (EOF #27$-1 ^11). But the SMO also notes that "some biochemical markers [of malnutrition] are influenced by hydration status and can be *fhlsely normal.'" (/d ^8). Given the petitioner's dehydration, then, the Court isnot willing torule cutmalnutrition. Tobeclear, the Court isnot questioning themedicalJudgment of theSMO, who alsonotes thmthepetitioner bears someindications of malnutrition; theCourt isonly saying that for purposes ofthe threshold determination ofwhether thorc ison objeotively, sufficiently serious medical need, the Court takes the possibility ofa "false normal" seriously. riLDDUliDCRODAL OOXTAnro PROTDCmiD nirORMATION 13

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mecUcal monitoring offlielr now rapidly decUning health." (ECF #363-1 at 2). As characterized .* •

by the petitioner, this new policy was absolute^no more force'feedings—and demonstrated that the SMO and JMG were "no longer interested in preserving their health, or even their lives, regardless ofthe hunger strikers' wishes." (Jd at 7) This policy was enacted, according to the petitioner, coerce him to stophis peaceful strike." (Id at 9). Even when he requested aforce- feeding, the SMO refused it, stating that any harm he suffered as a result was his "own choice." {Id at 7). The petitioner asserts that the JMG ceased to take his weight on adaily basis or to provide medical observation andalso denied him nn^ical care generally. The Government's response reveals a much more nuanced situation than, the petiticiner's characterization.

The petitioner was one ofthe detainees whose status on the list was reviewed. In this review, the SMO noted that the petitioner's weight had been relatively stable at around 102 pounds for the past year (October 2016 - October 2017). Although this is significantly below the petitioner's ideal weight of129-335 pounds, the SMO noted that 'Svhen adetainee has lived long term in astate of undemutrition (low body weight), the body makes adjustments to live at that weight and the weight alone Is no longer an indicator of malnourishment." (ECF #368-2 ^15). riLDD unDDnaDAb •CQ^rrADiorROTCOTCDDtronJiiATroH • 14

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More important than the weight itself, then, are "[t]rends in the baseline weigjit (usual

bodyweight)," which is defined as "llie weight over the preceding 12 months " (Id), feentially,

the frame of reference for determining what is an acceptable weight for the detainee changes over

time. Therefore, it became muchless important that the petitioner's intake weight was 129pounds

and much more important that his weight had remained relatively stable for more than a year.

In that review, the SMO also noted that the petitioner had been observed eating solid

food on a daily basi.s (despite his claims of being on a hunger strike) and making smoothies for

himself. (Id. 1|I3). TheSMO estimated that thepetitioner's daily caloric intake was approximately

1200 kilocalories per day. (Id. TjlT), The SMO also noted that (contrary to the petitioner's

assertions) thepetitioner wasphysically andmentally active—climbing stairs; walking unassisted;

participating in recreational-time; engaging in conversation with tlie SMO, behavioral health unit

staff^ andotliers; etc, (Id. ^ 14,16-17).

Based on thepetitioner's stable weight, observed and estimated caloricintake, physical

and mental activity, and otherindicators, theSMO determined that involuntary feedings were no

longer necessary to prevent death or serious harm to the petitioner. (Id at 16-17). The SMO

found that "other than his low weight, [the petitioner did] not show any medical signs that would

support the continuation of enteral feeding" in September -2017. (ECF #368 at 15). The SMO

concluded that the petitioner was not malnourished and that he had no known medical condition

that even required daily monitoting. (Id). Therefore, the petitioner was removed from the list of

detainees approved for involuntary feedings. (ECF #368-2 16-17). As such, the initial decision to stop force-feeding the petitioner was not made with

IndiiTerence to his health, but was rather an informed decision made by an attentive medical care provider. The petitioner may not have liked that determination, but the petitioner's treatment riLDDU]fDDP.aCAL' oo> ?Tj \»to pnorDOTCD i>irom.tjMi oi t 15

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preferences are largely irrelevant to this analysis. (Esielle^

C'Butthe question

whether [colain] forms of treatment is indicated is a classic example of a matter for medical

judgment A medical decision not to order an X-ray, or like measures, does not represent cruel

and unusual punishment."); United States ex rel. Hyde v. McGinnis,

(2d Cir.

1970)(finding that a prisonerhas no right to the specific"type or scope of medical care which he

personally desires")).

Also baseless are the petitionerLs claims that he was refused medical care generally.

According to the SMO, the.petitioner was, aflerhis removal ftom the list, visually examined on a

daily basis by tlie JMG and could receive physical examinations if he wanted. (ECF#368-1 ^14).

But the petitioner did not w^t physical examinations or any other medical care. In fact, the

petitioner actively refused all medical care in the period following his removal from the list,

including denial care, gastroenterology evaluations, and even the provision of vitamins. (ECF

#368-2 16,19). What the Court faces is a situation in which a detainee refuses to participatein

his own healthcare, turns down repeated offers of care, and then claims medical, neglect. The

petitionercannot artificiallymanufacturea deliberate indifference claim in this manner.

Further reinforcing the Courf s conclusion is the fact that, afler the petitioner filed his

motion,the JMGconducted a medicul examination of the petitioner. In that review, the JMGfound

no evidence that the physical issues enumerated in tho petitioner's counscTs affidavits existed at

the time. (ECF #368 at IT). The SMO also informed the Court that, per standard medical

procedures, the petitioner would continue to be examined and thai he would be reconsidered for

involuntary feeding if "his physical appearance combined willi his weight or other factors suggested maln'ourishinent." (ECF #368-1 T|14). That is exactly what happened. When the petitioner's weight dropped significantly the second month after his involuntary feedings stopped, PILDD UUDnnaUAL oonTi'iiMO PiiOTrcrcD niromdjUTiON 16

UNCLASS1FIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASF Case l:05-cv-01607-RCL Document 379 *SEALED* Filed 12/29/17 Page 17 of 24 rfLDLJuinicii ncAL CQ?(Tj'i]H3 PnOTCGTDD II irQRIiJj'iTlOK he was reconsidered and rcapproved for involuntary feedings. (ECF #376 at 2). These am act the actions ofacallous and indifferent medical corps. Rather, the JMQ has perfoimed as attentive and responsible medical professionals should.

Finally, Ute Court turns to the SMO's "quip" that any harm befalling the petitioner following Ute cessation of the involuntary feedings was the petitioner's "own choice." The petitioner makes much of this statement in his briefs, arguing that it shows the deliberate indifference with which the SMO and the JMG in general regard the petitioner's life and health. TTie Court does not agree. The policy ofUte JMG is to approve adetainee for involuotatyfcedmgs only when medically necessary to prevent deaUi or serious harm," (ECF. #368-21|I3), Implicit In this standard is the rcalizaUon that there arc harms that can result from aHunger strike that do •not rise to the level ofa risk ofdeath or serious harm. These we allow adetainee to suffer. Only once ahunger striker is at risk of death or serious harm must the SMO and JMG intervene and perform involuntaiy enteral feedings. When exactly tiiis timearrives and when it ends is amedical determination requiring a"comprehensive, multi-feotor evaluation of the detainee's health" as descnbcd above. (ECF #368 at 13). Detainees are never happy with the determination no matter the result. Detainees have sued challetigiiig the determination that they Were at risk ofdeath or serious harm. (Jam.,- v. Obama.

(D.C. Cir. 2014)). Detainees have sued challenging the manner of force-feeding after adetermination. (M). And now adetainee sues challenging the determination that he was not at rLsk ofdeath or serious harm. In light ofthis, the Court interprels the SMO's statement not- to reflect deliberate indifference to the life and health of the petitioner. Rather, the statement, ifindeed it was made, was more likely an acknowledgment that our system tolerates acertain amount of suffering on the part of detainees who volimtaiily bring it upon themselves. nLGDUllDCnOCi'iL cpi iTAniD rnoTDCTDD niromiii'dTioii 17

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Havingconsidered all ofthe affidavitsand other evidencebefore it, the Court finds no

evidence that couldsupport a finding that the SMO and JMG have been deliberately indifferentto

the petitioHCT's serious medical needs. Instead,the Court finds that the SMO and JMG have been

remaricabiy attentive to the patient's needsand careful in their attemptsto balancethe petitioner's

right to engage in a hungerstrike withthe needto preserve the petitioner'slife. Forthesereasons,

the plaintiff is unlikely to show that he will succeed on the merits of his deliberate-indifference

claim.

B. The AH Writs Act

The petitioner's arg;ument concerning the All Writs Act is inseparably related to his

argument under the deliberate-indifTerence standsird. The petitioner argues' that the refusal of the

medical staff at Guantanamo to resume involuntary enteral feedings endangers his life and his

capacity to interact with his attorneys. If the petitioner dies, this Court will have obvious trouble

exercisingjurisdiction overhis habeas petition. Likewise, ifdiepetitioner's healthdegrades tothe

extent thatit "impedes theattorney-client relationship" because of fatigue, collapsing, and mental

and emotional instability, thenhis access andability to participate in habeas proceedings will be

impaired. (See Al-Oshan v. Obama, F. Supp. 2d 1,6 (D.D.C. 2010); Tumani v. Obama^

(D.D.C. 2009)).

These arguments would be compelling if the Court, as a factual matter, actually

believed thatthe petitioner waslikely to die or become incapacitated in thenearfiiture. Butas the

Court discussed in great detail above, while thepetitioner has a serious medical condition, he is

also receiving excellent, attentive care. The medical staff at Guantanamo even resumed forced-

feedings briefly when the petitioner indicated that itwas necessary. Simply put, the Court has full confidence that themedical staffat Guantanamo isdoing itsJob andthat, as a factual matter, the riLDDUiroDIlDDjUj CCTlTAlfiC PnOTDCTDPPirOIUiCiMIOH 18

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plaintiffs lifeand health are not so threatenedas to pose any threat to this Courtis jurisdiction over

him.

The Court also finds that the relief the petitioner requests is inappropriate given the

availabilityofcoursesofaction short ofan extraordinary writ that can protect die patient's life and

health. First and fortnnost, the petitioner can end bis hunger strike.^ Short ofthat, the petitioner

may continue his hunger strike, but stop refusing the other medical procedures that have been

offered to him (suchas the gastrcenterology evaluations that could help the JMGto discoverthe

source of his bloody stools). The pointis diatmany of therisksto the petitioner'slife andhealth

are the result of his own choices. Ifhe truly is concernedabout preserving this Court's jurisdiction

over his habeas petitibn, he is fiee to stop placing himself at risk. The'Court does not think it

approimate to find that a petitioner may voluntarily pursue a course of actionthat threatens his

own life and thenpetitionfor an extraordinary writ commanding someone else to stop him when

it looks like he mightsucceed. The medical staffat Quantanamo has demonstrated that it willnot

allow the petitioner to die or come to serious barm. The Court will afibrd to the petitioner no

greaterrelief in the face of his chosencourse ofaction.

C. Conclusion

Forthese reasons, theCourt finds thatthepetitioner is unlikely to succeed onthemerits

of either his deliberate-indifference claim or his claim under the All Writs Act. For tliis reason

alone the Court could denyhis motion for a preliminary injunction. But the Court will proceed to

analyze the other Winter factors for thoroughness. •

^As the Court has previously mentioned, the petitioner may have done so already, (ECF #376-1 ^10), but without confirmafian from thepetitionerhimselfthe Courtwillnot assume thisto be true. riLDD UllDDRDDAL GOHTj'iIKO mOTDOTDD niTOIllilJHTIOK 19

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n. The Mtioner Docs Not Face Irreparable Injuiy Without Reliet The harm that the party pursuing apreiiminary injunction seeks to prevent may not be speculative or merely possible. lUther, the moving party must establish that irreparable harm is "likely in the absence ofan injunction." ((»7n/er.

) (emphasis in original)). In this me, evaluating whether the petitioner is likely to feoe ineparable harm without an injunction is inseparably related to the analysis of the merits of the petitioner's claims. The harm that die peaUoner alleges is the "imminentdanger" that die SMO's chosen course ofaction represents to the petitioner's health. (ECF #363-1 at 16). As the Court has made clear, the policies and procedures that Guantanamo personnel have in place are sufficient to avoid the catastrophic consequences ofwhich the petitioner warns. Guantanamo perMiinel have not ceased the.petidoner's health. Hiey have not refiised to perfonn involuntaiy feedings vdien diey have found itnecessary. And the SMO's thorough evaluation offlte petitioner's health reveals that the petitioner is "medically stable." (ECF #376-1 ^11). For these reasons, the Court finds that the petitioner sfears ofdeath and "total organ fbilure" are overblown. (ECF ^363 at 1). The petitioner's health is stable and likely to remain so. For that reasons the Court fmds that the petitioner does not face arisk ofirreparable harm without injunctive relief. III. The Balance ofthe Equities Does Not Favor Granting Injunctive Relief. The third WinJer factor requires that the Court balance the equities ofthe case. (

). In this case, the balance ofthe equities does not favor the petitioner. Ihe petitioner argues that allowing an independent medical evaluation by anon- militarydoctor would pose no great burdenon the Oovemmait, The logistics ofthe visititselfare easy to arrauge. and the requirement that the medical officers at Guantanamo administer any treatments the non-military doctor may suggest is nothing more than "the requirement to provide riLCDunDDnomij- nm IT i n rTfrnnMiiLTIO)! 20

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care to prisoners of war." (ECF363-1 at 18). This assessment is incorrect. It is indeedeasy for a

non-military doctor to fly to Guantanamo. But requiring the medical officers at Guantanamo to

follow the orders of this supposedly independent doctor is much more than "the requirement to

providecareto prisoners of war"—it is a coup that subjects the medicaljudgment and authorityof

the JMG to whatever supposedly neutral physician the petitioner's counsel selects. The Court

agrees vrith theGovernment's characterization ofthepetitioner's requested reliefas"nothing short

of a full takeover of Petitioner's medical care by an expert of Petitioner's choosing, as well as

dictation byPetitipner of theprocedures at Guantanamo for dealingwitlihunger-striking detainees

and the requirement that JMG personnel conduct whatever medical procedures that Petitioner's

expert requests." (ECF 368at 29-30). This goes far beyond therequirement thattheUnited States

provide care to prisoners of war (or, more accurately, to detainees, because the petitioner is not

legally a prisoner of war). PLather, this is an attempt by the petitioner to receive thatto vidiich he

has no right, not just medical care, but "the type or scope of medical care which he personally

desires." {McGinnis, 429 F.2d at867). The burden the petitioner's requested reliefwould impose

on the Government, then, is much higher than the petitioner suggests.

TTie general upending of thechainof command amongthe medical decision-makers at

Guantanamo that the petitioner's requested relief would cause is not the only burden posed to the Government in this case. Other portions of the petitioner's requested relief present their own concerns. Of particular concern to the Court is the petitioner's request for the disclosiu-e of

comprehensive daily reports on the petitioner's physical and mental health, which the petitioner • requests to be delivered immediately to counsel even if they contain classified (or potentially classified) information. A request for a client's medical records is one thing. (See AUJoudi v. 406 F. sup, 2d 13, 20 (D.D.C. 2005) (ordering the production ofmedical records); ilusaytx nLGD UNDDRnCAL 00) ITAI?IDPROTEOTDD irOtUiti'iTI01 \ 21

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V. GateSj

(D.D.C. 2008) (same); Tumani^

(same)). But a request for comprehensive daily reports with no initial rcgand to the potentially

classified nature of their contents is another. Granting thisrelief would require the medical staff

at Guantanamo toexpend an inordinate amount oftime tending to a single detainee—and that to a

detainee who has a habit of willfully refusing medical examinations—^and would require the

Government torisk thedisclosure ofclassified information unnecessarily. Inthis case, the burden

ofcomplying with thepetitioner's requests ismuch higher thaawould be thecase ifthe petitioner

merely requested a routine disclosure ofhis medicalrecords to counsel.

Against this burden, the petitioner sets forth his constitutional rights to adequate

medical care and tobe free from the"unnecessary and wanton infliction of paia'* (EOF #363-1 at

18 (quoting Estelle,

)). But as the Court has already explained, the petitioner is

unlikely tosucceed inshowing that the Government hasdeprived him ofthese constitutional rights.

The balance ofthe equities, then, istitis: onthe one hand we have,the heavy burden ofsupplanting

the authority of the medical officers at Guantanamo with the will of physicians selected by the

petitioner's counsel and the administrative burden of comprehensive daily examinatioiis and the

unnecessary disclosure of classified information; and on theother hand we have the petitioner's

health, which is closely monitored bytheJMG and isthreatened, if at all, bythe petitioner's own

choices, and the petitioner's constitutional rights, which he cannot show are being violated. The equities inthis case, then, favor denying the injunction tliat the petitioner requests. IV. Injunctive Relief is Not in the Public Interest.

The petitioner argues that itwould harm the national security interests and image ofthe United States were he to starve to death. (ECF #363-1 at 19 {cixSxvgAi-Joiidi, 406 F. Supp. 2d at 20)). This statement is true on its face; the death ofadetainee in American custody resulting fiom riLDDUHBDRDCAL OOllTi'iniO raOTDOTDD DirOOJilAtlOR 22

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medical neglect would look very bad and certainly would not be in the public interest But the

statement presupposes that the petitioner will—or at least is likely to—be permitted to die as a

result of his hunger strike while under the care of the JMQ. That is not true. The harms to the

United States's national securityinterestsand imageof which the pditioner warns willnot come

aboutbecause, as the Court has alreadyexplained, the petitioneris receiving competent carefrom

an attentive medical staff that is aware of the petitioner's medical needs and is not disposed to

allowthe petitioner to witherawayand.die underits watch. .

The JMG's policy of conducting involuntary enteral feedings "when medically

necessary to prevent- death or serious harm" or when the petitioner's "physical appearance

combined with hisweight or otherfactots suggestfs] malnourishnlent" remains in fiill force.' (ECF

#368 at 12,-16). And the SMO and the JMG have demonstrated that they takes this policy

seriously, having briefly resumed involuntary enteral feedings of the petitioner when he

demonstrated signs of malnutrition and having continued monitoring his weight and nutrition^

intake since that time. (ECF #376 at 1~2). In addition, the Court believes the GovenunenCs

representation thatthe petitioner is fiilly capable of eating solidfood (which he has been observed

doing) and of drinking smoothies and Ensure Plus should eating prove uncomfortable. Forthese

reasons, the Court finds the petitioner's characterization of the newSMO's medical policies and

determinations as a "death sentence" to be gross hyperbole and his proffered harms to the public interest to bespeculative at best. (ECF #363-1 at 19).

While the harms to the public interest that the petitioner alleges are speculative, the Court also finds that granting die petitioner's requested relief would harm the public interest by creating a perverse incentive structure. The petitioner's arguments regarding the public interest boil down to this: "Give me what Iwant orI'll hurt myself, maybe even kill myself, and that would riLDD.UUDDRaDAL ooirrjkixo PROTDOTCD niromiiATiQ)^ 23

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look bad to the rest ofthe world." Such threats cannot be entertained. (Cf, Rodnguez,A^^V^6. at 953 ("A prisoner cannot force the prison to change its rules by going on ahunger strike and blaming the prison for his resulting loss ofweight. He cannot, in short, be permitted to engineer an Eighth Amendment violation.") (internal citations omitted)). Encouraging self-harm among inmates—at Guantanamo Bay or anywhere else—is not in the public interest. To do so would threaten the capacity of detention officers to maintain order. Detention officers must have flexibility to deal with situations such as the petitioners, flexibility sufficient to balance the requirement ofpreserving the health ofthe petitioner with tlie need to maintain order. Subjecting the SMO and JMG'S informed medical judgment to critical judicial oversight and the demands of physiciaiis selected by detainees* lawyers does not allow for that fle^ubility, Becau^ the harms to the public interest ofwhich the petitioner warns are speculative and improbable and because granting the petitioner's motion would be detrimental to the public interest in maintaining order and discouraging self-harm among detainees, the Court finds that thi.s factor weighs against granting apreliminary injunction. Conclusion

For these reasons, the Court will deny the petftioner's motion in its entirety. A separate order shall issue.

SIGNED this day ofDecember, 2017.

jUCL. HONOfiftABLE ROYCE LAMBERTH tlNITED STATES DISTRICT JUDGE riLCD UHUUK UUA'l ooMTj^nto rnoTccrrED ruromui^Tiort— 24

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