Thursday, February 28, 2008

Reply Brief on Medical Care and Records


Prisoner, )
Guantanamo Bay Naval Station )
Guantanamo Bay, Cuba; )
Petitioner, ) Reply to Emergency Motion
) for Medical Treatment
v. ) (Expedited consideration
) requested )
)No. 05 cv 2378 (JDB)
GEORGE W. BUSH, et. al. )


Now comes the Petitioner Al-Ghizzawi in Reply:
The opposition by the Government is, if nothing else, consistent with its position in every court it has argued: no court has jurisdiction over this matter and hence this Court need not concern itself with the fact that the United States of America is holding human beings at Guantanamo Bay. As far as the United States government is concerned and notwithstanding the Supreme Court’s express holdings to the contrary in Rasul v. Bush, 542 U.S. 466 (2004) and Hamdan v. Rumsfeld, _U.S. _, 126 S.Ct. 2749 (2006), Guantanamo Bay remains the ultimate and the quintessential legal black hole, simply beyond the jurisdiction of American courts (no matter how many times the Supreme Court of the United States holds otherwise)… Of course, if this or no other court has jurisdiction in this matter then Al-Ghizzawi will die of unnatural causes in the American detention facility on the American naval base at Guantanamo Bay, Cuba.
… It really is that simple.
While the Supreme Court will ultimately pass on the Constitutionality and applicability of the Military Commissions Act (MCA) this Court must continue to retain jurisdiction in the interim (or if nothing else, the power and jurisdiction to issue orders to preserve the status quo pending the ultimate determination of jurisdiction …and maintaining the status quo includes keeping Al-Ghizzawi alive). Certainly the Circuit Court has not addressed in Boumediene v. Bush 476 F.3d 981 (D.C. Cir. 2007) or elsewhere the question raised on this present motion: Does the MCA allow the government to withhold life sustaining medical treatment without judicial oversight or recourse?
In addition, it is clear from the DC Circuit Court in Bismullah v. Gates 06-1197 (most recently that court’s order of 2/1/2008) that even that court understands and acknowledges that the prisoners at Guantanamo have a fundamental right to counsel. By withholding medical treatment and not allowing Al-Ghizzawi and his counsel full access to his medical file the government is (amongst other things) denying to Al-Ghizzawi his right to counsel because in order for the right to counsel to have meaning, Petitioner’s counsel must be kept informed of the health of her client especially in a situation such as this where the government now admits (in a vague and carefully crafted way) that her client’s liver problems have worsened in the intervening 18 months (and in fact started to noticeably worsen at the time Al-Ghizzawi filed his original motion.) It is also clear that the government is still not treating Al-Ghizzawi’s serious health problems either out of incompetence, ignorance, or malfeasance… or all of the above. Further, the request for access to medical records and emergency medical treatment is a narrow, specifically tailored form of relief sought only to protect Petitioner’s health and welfare in light of symptoms of potentially fatal illnesses.
Notwithstanding the seeming absurdity that Al-Ghizzawi is required to compare the grave risk of irreparable injury and likelihood of success on the merits with the potential injury to the government and public interest concerns before he can assert the right to seek competent medical care, Al-Ghizzawi has nonetheless made the argument in his opening brief and has made the requisite showing in the present motion. See Katz v. Georgetown Univ., 246 F.3d 685, 687-688 (D.C. Cir. 2001). “These factors interrelate on a sliding scale and must be balanced against each other.” Serono Labs, Inc. v. Shalala, 158 F.3d 1313 (D.C. Cir. 1998). “If the arguments for one factor are particularly strong, an injunction may issue even if the arguments in the other areas are rather weak.” City Fed. Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995).


In a disappointing but not surprising twist that could only occur in the Kafkaesque world of Guantanamo litigation the government now challenges one of the allegations leading to the present motion stating “incredibly petitioner also alleges he has AIDS…. “. (Opposition at 15) Incredible indeed. It is incredible that the unfortunate Al-Ghizzawi was given the devastating information that he had AIDS by a physician at the base and had that fact confirmed one week later. In response to this likely terminal diagnosis, Al-Ghizzawi’s counsel asked the government to confirm the report (or deny) that Al-Ghizzawi was diagnosed with AIDS (see, Ex. D ¶77). Incredibly, the government’s own attorney refused that simple request and now in the kind of Orwellian double–speak that has been rampant throughout this litigation, attempts to turn the tables and assert that Al-Ghizzawi’s reporting of what a base physician has told him to his counsel and counsel’s reporting of it to the court is an “outrageous accusation.” The outrage is that the government has continually refused to set the record straight on the issue of the AIDS diagnosis when it had the chance (if indeed it has even set that record straight now) and shamefully attempts to cast aspersions at Al-Ghizzawi and his counsel.
The affidavit of Dr. Bruce C. Meneley, Guantanamo’s newest Commanding Officer of the naval hospital effectively shows little more than that Dr. Meneley, a dermatologist by specialty, is not himself competent in regards to hepatitis treatment and diagnosis and represents little more than a cynical attempt on the part of the Government to respond to the form of this Court’s order directing an explanation of Al-Ghizzawi’s medical condition while still avoiding responding to it in substance. Dr. Meneley’s vague affidavit, which relies not on his personal doctor-patient relationship with Al-Ghizzawi or his own expertise, but instead relies on the very records that Al-Ghizzawi and his counsel are not allowed to view (and the government withholds even from an in camera submission to this Court), appears to be little more than an attempt to conceal rather than to enlighten. What is clear from Meneley’s affidavit is that Al-Ghizzawi’s condition has seriously worsened over these eighteen months and no explanation is offered for why this is the case. What is also clear is that Dr. Meneley’s affidavit contradicts the earlier affidavits of Guantanamo’s Dr. Sollock.
Dr. Meneley admits in his affidavit that Al-Ghizzawi’s test results from November 2006 and again in August 2007 show “elevated” viral markers which the doctor vaguely describes as “slightly elevated.” What Meneley doesn’t discuss is why these tests were run in November 2006 a few short weeks after Dr. Sollock stated under oath in his October 16th 2006 affidavit that Al-Ghizzawi’s “routine” hepatitis test results from September 2006 indicated clean health and were “normal.” (Unexplainably those September results were not available until October 2006, after this Court denied Al-Ghizzawi’s original motion.) This Court understandably relied upon Sollock’s affidavit in finding that Al-Ghizzawi did not make the requisite showing to get the treatment and records he sought). Also unclear is why Dr. Meneley doesn’t even mention the”routine” tests that were supposedly performed in September 2006 and finally available in October 2006. (Meneley Aff. at ¶ 6).
Al-Ghizzawi submits a new and updated affidavit from world–renowned hepatologist (liver specialist) Dr. Jürg Reichen in support of this Reply and to point out to this Court why it must carefully scrutinize the conflicting affidavits of Dr. Meneley and Dr. Sollock and grant Al-Ghizzawi the relief sought. (Ex. E) Despite the false assertion by the government that Al-Ghizzawi “alleged” he had liver cancer when he filed his first motion (Gov. Opposition at 1), Al-Ghizzawi did not claim that he had liver cancer at that time. Rather, what he asserted was that untreated hepatitis B could lead to liver cancer and that it was possible, given the current state of his health, that he had liver cancer. That assertion is even truer today as the government apparently hid the actual test results and, unbelievably, withheld treatment for these eighteen months making the likelihood of liver cancer more probable.
In his affidavit Dr. Reichen, explains how the affidavits of Sollock and Meneley show that the doctors do not have the competence for properly diagnosing and/or treating Al-Ghizzawi for the liver problems he evidently suffers. One glaring example is Al-Ghizzawi’s ongoing complaint of severe itching of the skin. According to Dr. Reichen, to a hepatologist this symptom is a red flag indicator of serious liver damage. (Ex. E ¶ 9) To Dr. Meneley, however, a dermatologist who clearly has no training to recognize this as a symptom of liver damage; this is nothing more than an annoying rash to be treated with topical medications. (Oppo. Ex. B ¶11) As Dr. Reichen points out, the affidavits taken together and separately raise many questions and provide few answers. Dr. Reichen also explains how non invasive tests could have been used to properly diagnose Al-Ghizzawi, how a biopsy is not necessary and how treatment could have and should have been conducted long ago. Dr. Reichen further explains how decisions about treatments can properly be made when tests are refused by a patient, a concept that seems to have escaped the medical staff at Guantanamo.
While the government’s opposition continues to assert that any deterioration of Al-Ghizzawi’s medical condition during his unlawful and inhumane confinement is entirely his own fault (as is presumably his confinement itself), Al-Ghizzawi cannot fundamentally have any confidence in the physicians or treatment at Guantanamo because of the consistent record of outlandish lies they have told him , counsel, and this Court) to date, and because of the Government’s continued insistence on keeping his medical records out of the hands of a qualified physician, who can give Al-Ghizzawi competent medical advice in which he can have any degree of trust. (See, Ex. E ¶10) Tellingly, the Government only offers the conclusory affidavit of a dermatologist and had thus far refused to even deny that Al-Ghizzawi has AIDS until this very filing which leads to the inevitable conclusion that it wanted to keep Al-Ghizzawi thinking this was his diagnosis and that it simply hoped this Court would not require a response or a showing at all.
Despite the government attempts to obfuscate, here is what we know. The government claimed it ran “routine” hepatitis tests after Al-Ghizzawi filed his original emergency motion in August 2006. Dr. Ronald Sollock filed affidavits on September 8, 2006 and October 16, 2006. In the first affidavit Sollock testified that not all of the test results were in… (despite the fact that he didn’t have the entire test results Sollock concluded that Al-Ghizzawi was a healthy man at Ex. 1 ¶ 10 and¶ 15 to Gov. Opposition of September 8, 2006). This Court denied Al-Ghizzawi’s motion and Al-Ghizzawi moved to reconsider. In Dr. Sollock’s second affidavit he testified that the September test results were now available (Ex. 4 to Opposition of October 16, 2006 at the end of ¶ 2f) stating: “on September 5th 2006 Mr. Al-Ghizzawi was given a routine Hepatitis B follow-up. Mr. Al-Ghizzawi consented to having several lab tests performed that day however he refused to give a DNA sample.” (See Reichen aff. at ¶ 5.2 and 5.3 discussing Sollock’s lack of knowledge regarding DNA samples) Sollock went on to state, under oath that “the tests were returned as normal.” Certainly this Court understandably relied on that statement in denying Al-Ghizzawi the relief he sought at that time.
Now we have an affidavit from Dr. Meneley who doesn’t even mention (let alone explain the disparities associated with) the “routine hepatitis tests” that were supposedly performed in September 2006 (and which Sollock described as having “normal” results) but instead Meneley describes the abnormal test results from November 2006: “laboratory tests conducted in November 2006 and August 2007 revealed that Mr. Al-Ghizzawi’s viral markers were slightly elevated above what would normally be seen with a typical Hepatitis B carrier…” (emphasis added.) (Opposition Ex. B ¶6) Dr. Meneley never explains the composition of the actual viral markers or describes what he believed to be “slightly elevated” “normal” or “a typical hepatitis B carrier”, as if there were such a thing…. More tellingly, Dr. Meneley never mentioned the phantom tests from September 2006 that Dr. Sollock stated (under oath) produced results that “were normal.” Hence, this affidavit raises many disturbing questions that call into question either the competence of the government’s medical officers, or their veracity, or both. If they did in fact run “routine tests” in September 2006 and received those results in October 2006 why would they run those tests again in November 2006? And how could it be that tests were “normal” in October but one month later showed results that were “slightly elevated above what would normally be seen with a typical Hepatitis B carrier?”
So the government has created a factual dispute between its own affiants. Was Dr. Sollock lying when he said that hepatitis tests were conducted in September 2006 and the results were normal? Did the base physicians throw the September 2006 results out and perform new tests in November so they could cover their tracks before this Court? Or were the tests never run in September 2006 but they nevertheless told this Court they were? And why in the world after they learned in November 2006 that Al-Ghizzawi’s viral markers were elevated would they not start to treat him? Instead, in December 2006, they sent this incredibly ill man to the cruel and inhumane isolation of camp 6 and left him there alone and untreated, to die.
Even if this Court were to conclude that Al-Ghizzawi has somehow made an inadequate showing of irreparable harm on the present record, Petitioner respectfully requests that this Court grant his request for access to his complete medical records that would provide a basis for Al-Ghizzawi to establish his irreparable injury upon their presentation in an appropriately renewed motion. Petitioner respectfully submits that comparing the grave risk of irreparable injury to Al-Ghizzawi if he does not have access to his medical records, to his likelihood for success on the merits and the fact that there has been no adequate showing by the government that the national interest will be threatened or even burdened by granting this minimal relief militates in favor of Al-Ghizzawi's instant motion.
Further, given the compelling circumstances of this case, and that the government has created fact issues that Al-Ghizzawi’s testimony will be required to address, Al-Ghizzawi respectfully also requests an expedited hearing on his Petition either with Mr. Al-Ghizzawi appearing in federal court, with this Court holding a hearing at Guantanamo or via appropriate teleconferencing to be arranged by the government (with Al-Ghizzawi’s counsel at the same location as Al-Ghizzawi). Counsel for Al-Ghizzawi will be arriving at the base on the evening of February 25th for visits with her client on February 26th and 27th and would be amenable to such a hearing at that time as long as Drs. Sollock and Meneley are made available. Although counsel’s cell phone does not work at the base the government knows where to find her at all times.
III. Geneva Conventions
Despite pleas from the Executive branch, the U.S. Supreme Court refused to disregard this nation’s obligations under the Geneva Conventions in Hamdan v. Rumsfeld _ U.S. _, 126 S. Ct. 2749 (2006). Those same Conventions require adequate medical care and requires the US government to treat serious illness or injury and to ensure that where a condition necessitates special treatment, a surgical operation or hospital care, the detainee must be brought to a facility where such treatment can be given, including a civilian facility. (Convention III, Art. 30 Paragraph 2) In addition it is also required that medical inspections of internees shall be made at least once a month “to supervise the general state of health, nutrition and cleanliness of internees, and to detect contagious diseases, especially tuberculosis, malaria, and venereal diseases. Such inspections shall include, in particular, the checking of weight of each internee and, at least once a year, radioscopic examination.” (Convention IV, Art. 92) It is clear from the affidavits of Dr. Meneley and Dr. Sollock that Al-Ghizzawi has not even had a chest x-ray since August 2004. (October16, 2006 Affidavit of Dr. Sollock ¶ 3b and Ex B ¶ 8 affidavit of Dr. Meneley.)
The Guantanamo medical facility has had more than sufficient time to treat Al-Ghizzawi if it were to do so effectively, and should not be given any further opportunity to malpractice upon, if not kill him. The Guantanamo medical facility has also shown through the affidavits of its commanding officers that it will go to any lengths to hide their incompetence in diagnosing and treating Al-Ghizzawi, making it all the more imperative that Al-Ghizzawi be sent to an appropriate civilian medical facility in accordance with the Geneva Conventions.

If Al-Ghizzawi was a convicted criminal and sentenced to prison in the federal prison system he and his counsel would readily be allowed access to his medical records (and probably be able to achieve something resembling competent medical care). (See, United States Department of Justice, Federal Bureau of Prison’s Program Statement 1351.05, section 14 ( (See also, Benavides v. Bureau of Prisons 995 F.2d 269, 301 U.S.App.D.C. 369 (1993)) The fact that this man who has not even been charged with a single crime, (let alone convicted and/or sentenced) cannot view his own medical records while the government knowingly withholds life sustaining medical treatment is iniquitous. ( See also, U.S. v. West, slip op, 2002 WL 1822417 (A.F.Ct.Crim.App. 2002) (prisoner convicted under Uniform Code of Military Justice may, if subjected to deliberate indifference in military jailer's medical treatment, state claim for 8th Amendment violation); Cushing v. Tetter, 478 F.Supp. 960 (D.R.I. 1979) (district court may consider question of whether return of service member to active duty where member may be psychologically unfit constitutes deliberate medical indifference constituting 8th Amendment violation); Article 55 of the Uniform Code of Military Justice prohibiting cruel and inhumane punishment).
Al-Ghizzawi’s health deteriorates from a disease that becomes less curable with each passing day that he sits in the cold isolation of Camp 6. It is clear that the government ‘s dermatologist does not have the slightest idea as to how to diagnose and treat Al-Ghizzawi’s medical conditions and apparently thinks Al-Ghizzawi should just sit and die if he won’t allow them to perform a biopsy. The government’s previous physician witness decided it was easier to lie than to admit they had a sick man that had gone unnoticed until he finally obtained an attorney. This situation is a national disgrace and although it might be difficult to do the right thing for Al-Ghizzawi, this Court has the power to say “enough is enough.” Al-Ghizzawi humbly asks this Court to come to his rescue and grant the relief sought in his New Emergency Petition and given the compelling circumstances of this case, Al-Ghizzawi respectfully requests an expedited hearing on his Petition and an Order by this Court to move him to a competent civilian medical facility post haste and for whatever and further relief this Court deems just.
Submitted by,
/s/H. Candace Gorman
Counsel for Petitioner

Tuesday, February 5, 2008

Emergency Motion


Detainee, )
Guantanamo Bay Naval Station )
Guantanamo Bay, Cuba; )

GEORGE W. BUSH, et. al. )

Al-Ghizzawi’S NEW EMERGENCY MOTION FOR medical treatment and MEDICAL records
(with irreparable injury accounted for)

Abdul Hamid Al-Ghizzawi ("Al Ghizzawi"), once again, pleads this Court for an Order directing the United States Government to require its military authorities to provide medical treatment for his life threatening conditions and to turn over his medical records to his counsel (a signed medical release from Al-Ghizzawi has previously been tendered to this Court). Although a motion similar to this has previously been filed with this Court in August 2006 and denied on November 2, 2006, as set forth herein, additional events have taken place which warrants this relief being granted at this time:
a.) Al-Ghizzawi, in a letter to counsel, states that he was told by a doctor at Guantanamo in December 2007 that he is suffering from AIDS. No medication or treatment of any kind has been offered for that condition. In a separate letter dated January 1, 2008 Al-Ghizzawi states that the AIDS diagnosis has been confirmed.
b.) Al-Ghizzawi, in a meeting with counsel in September and subsequent letters stated that he was told by a doctor at Guantanamo in September, 2007 that he has a severe liver infection. No medication or treatment of any kind has been offered for that condition.
c.) Al-Ghizzawi filed an Original Habeas Petition with the U.S. Supreme Court and a Motion to Expedite because of his frail medical condition. Although his Motion to Expedite was denied on October 1, 2007 his Petition was allowed to be filed on that same day and the Court ordered a response from the Solicitor General. The Petition was set for conference on January 18th 2008. As of January 18th, 2008 Al-Ghizzawi’s Original Petition is apparently being held pending the Court's disposition of Boumediene v. Bush,---- S.Ct.---,, 2007 WL 1854132, 75 USLW 3705, 75 USLW 3707 (U.S. cert. granted Jun 29, 2007; argument held Dec. 5, 2007) (No. 06-1195).
d.) On January 28th, 2008 Al-Ghizzawi filed an emergency application with Chief Justice Roberts of the United States Supreme Court seeking similar relief to the instant motion, to wit, emergency medical treatment (and medical records) so that Al-Ghizzawi might survive long enough to see the outcome of his Original Petition in the Supreme Court.
e.) On January 29th, 2008 Chief Justice Roberts denied Al-Ghizzawi’s emergency application without comment. (Assuming Justice Roberts, a compassionate jurist, does not wish Al-Ghizzawi to die at Guantanamo that application was most likely denied because the Chief Justice felt that relief was available to Al-Ghizzawi in the lower courts. In any case Chief Justice Roberts certainly did not foreclose Al-Ghizzawi requesting that relief from the lower courts.)
f.) Al-Ghizzawi filed a Petition with the Circuit Court under the DTA in March 2007 and pleaded with the Circuit Court for a speedy hearing because of his frail medical condition. No action has been taken on his DTA petition to date;
g.) In November 2006, Al-Ghizzawi filed an appeal with the Circuit Court asking that Court to Order medical treatment (and medical records). That appeal has not been ruled on;
h.) Al-Ghizzawi’s counsel has attempted to visit with him every other month to monitor and document the swift deterioration of this innocent civilian’s health.
Beginning sometime in 2004 Al-Ghizzawi’s health began to deteriorate and when he could not obtain medical attention for his serious health issues, he began his quest for legal representation. Counsel has been representing Al-Ghizzawi since November 2005, pro-bono. Al-Ghizzawi has received absolutely no treatment for his many life threatening illnesses (including the previously known hepatitis B and tuberculosis) and his health has deteriorated to the point that he can barely walk, has trouble concentrating and communicating, and by all appearance, is near death. Al-Ghizzawi, an innocent civilian, wrongly held by our military, is literally dying in his isolation cell in the supermax Camp 6 from untreated medical conditions.
In a meeting in September,2007 Al-Ghizzawi told his counsel that a doctor at the base informed him days earlier that he has a severe liver infection. In a counsel visit with Al-Ghizzawi on Dec. 17th 2007 Al-Ghizzawi signed an affidavit describing in more detail the particulars of his discussions with his doctors regarding this liver infection. In a letter dated December 25th, 2007 (received by counsel on or about January 14, 2008) Al-Ghizzawi told his counsel that an “American” doctor at Guantanamo has now informed him that he suffers from acquired immune deficiency syndrome, better known as full-blown AIDS. Al-Ghizzawi’s panic stricken letter begs his counsel to find out why this deadly disease has been kept secret from him and to implore the government to provide him with medical treatment. In the last letter counsel has received from Al-Ghizzawi (dated January 1, 2008) he stated that the AIDS diagnosis was confirmed and that he is not receiving any treatment for any of his life threatening illnesses.
Early on January 17, 2008 Counsel sent an email to the DOJ attorney assigned to this case (Andrew Warden) asking him to confirm or deny that Al-Ghizzawi in fact has AIDS. A day and a half later Attorney Warden sent an email back refusing to confirm or deny the report, instead saying: “We are not privy to the particulars of what your client may have been told by his doctor, if anything, but Guantanamo provides high-quality medical care to all detainees….” In an immediate email back to Warden counsel for Al-Ghizzawi asked him “Could you please make yourself privy to the particulars of my client? He was told he has AIDs and I want to know if it is true or not… Please contact your colleagues at the base and find out this rather important piece of information. Thank you for your anticipated help in this.” Despite counsel’s representation that she anticipated Warden’s help…she did not, and unsurprisingly Attorney Warden has never responded to her last email.
There are really only two plausible explanations for these events: one is that Al-Ghizzawi in fact actually suffers from AIDS and therefore must have been at least HIV positive when Dr. Sollock filed his affidavit with this Court on September 8th 2006 stating that Al-Ghizzawi was in good health; or, Al-Ghizzawi does not have AIDS and is being subjected to some kind of psychological torture, in which the DOJ is acquiescing by refusing to confirm or deny that Al-Ghizzawi has AIDS.
One thing is certain: Guantanamo has not provided medical care, let alone anything resembling "high-quality" medical care for Al-Ghizzawi.
That doctors at Guantanamo have admitted to Al-Ghizzawi that he suffers from AIDS and a severe liver infection, that the government previously admitted that Al-Ghizzawi has both hepatitis B and tuberculosis and that he has not been treated for any of these conditions establishes as a per se matter that Al-Ghizzawi is not receiving adequate treatment for his life-threatening illnesses. With the irreparable harm that this Court found lacking at the time this Court denied his prior motion now clearly established (imminent death), Al-Ghizzawi submits that the totality of the circumstances require immediate attention and an Order from this Court requiring the Government to not only treat Al-Ghizzawi but to immediately turn over his medical records. Only with the complete medical records can Al-Ghizzawi and his counsel be sure that any "treatment" he receives is applicable to his actual medical conditions and not another Potemkin village designed to create the appearance, but not the substance, of actual medical treatment.
Because Al-Ghizzawi is a prisoner of the United States in a facility controlled by the United States who has not even been charged with, much less convicted of, a crime, he must be entitled to the full protections of the Due Process Clause. “While the convicted prisoner is entitled to protection only against punishment that is ‘cruel and unusual,’ the pretrial detainee, who has yet to be adjudicated guilty of any crime (or as in this case even charged with any crime) may not be subjected to any form of ‘punishment.’” Slade v. Hampton Rds. Terg’l Jail, 307 F.3d 243, 250 (4th Cir. 2005) (emphasis in the original). See also Youngberg v. Romeo, 457 U.S. 307, 312-22 (1982); Bell v. Wolfish, 441 U.S. 520, 535-37 (1979). Unfortunately Al-Ghizzawi is being subjected to the cruelest form of punishment: the withholding of life saving medical treatment and these judicial holdings will not serve Al-Ghizzawi if he is permitted to die at the hands of his jailer before he even has so much as an opportunity to be heard. It is imperative that this Court ensure that the government meets Al-Ghizzawi’s immediate and compelling medical needs while awaiting his day in court.
Al-Ghizzawi requests that this Court grant his request for immediate medical attention and access to his complete medical records. As argued above the records are necessary to provide a basis for Al-Ghizzawi to ensure that the medical treatment that Al-Ghizzawi so desperately needs is appropriate to his actual condition, a condition that to this day, both Al-Ghizzawi and counsel know only to the extent the government is willing to disclose. The relief requested is absolutely necessary for Al-Ghizzawi to effectively prepare his case and to quite literally allow him to live long enough to pursue his case to conclusion.
Al-Ghizzawi is seeking to exercise his rights to medical care and right to counsel, rights that are not merely “conditions of confinement” civil rights claims. The right to medical treatment is such a fundamental right that Al-Ghizzawi should not be in the position of literally begging for this right in the various courts for more than eighteen months and on his own for the last several years. In addition, Al-Ghizzawi's right to counsel exists no matter how the jurisdictional argument is decided in this and other detainee habeas cases. For the right to counsel to have meaning, Al-Ghizzawi’s counsel must be kept informed of the health of her client especially in a situation such as this where the government admits it knows of her clients health problems, but is not treating those health problems. Further, the request for access to medical records and emergency medical treatment is a narrow, specific form of relief sought to protect Al-Ghizzawi’s health and welfare in light of symptoms of potentially fatal illnesses that have gone untreated.
The fact that the government has admitted that Al-Ghizzawi has both Hepatitis B and Tuberculosis and has not been treated for either condition and the fact that the government attorney refuses to even confirm or deny that Al-Ghizzawi is also suffering from AIDS (and not being treated for it), clearly indicates that Al-Ghizzawi is not receiving adequate treatment for his potentially life-threatening illnesses, and entitles Al-Ghizzawi to seek immediate judicial redress to ensure that the government meets his medical needs. Assuming arguendo that Al-Ghizzawi must compare the grave risk of irreparable injury and likelihood of success on the merits with the potential injury to the government and public interest concerns (See Katz v. Georgetown Univ., 246 F.3d 685, 687-688 (D.C. Cir. 2001)) the equities and circumstances still balance in favor of Al-Ghizzawi; “[t]hese factors interrelate on a sliding scale and must be balanced against each other.” Serono Labs, Inc. v. Shalala, 158 F.3d 1313 (D.C. Cir. 1998). “If the arguments for one factor are particularly strong, an injunction may issue even if the arguments in the other areas are rather weak.” City Fed. Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995).
Comparing the grave risk of irreparable injury to Mr. Al-Ghizzawi if he continues to not receive medical care and access to his medical records, to his likelihood for success on the merits and the fact that there has never been a representation from the government that the national interest will be threatened or even burdened by granting it, this relief militates in favor of granting the relief requested.

i. Irreparable Injury
Al Ghizzawi's diagnosis of AIDS, if accurate, and if that condition continues to be untreated, is a veritable death sentence, and hence, establishes irreparable harm as a per se matter. In addition, Al-Ghizzawi was recently told by a medical doctor at Guantanamo that he has a severe liver infection (most likely as a result of having his hepatitis B untreated for such a long period) and as shown by his affidavit (from prior to his being told he has AIDS) was then scared out of having a liver biopsy provided by camp medical staff at Guantanamo. (Ex. A) However, as shown by the Affidavit from Dr. Jürg Reichen, treatment could have, and should have been conducted even without a biopsy. (Ex. B)
Al-Ghizzawi’s counsel also submits to this Court two affidavits of her own observations regarding Al-Ghizzawi’s appearance and symptoms over the past eighteen months clearly showing the irreparable and ongoing injury to Al-Ghizzawi in not receiving medical treatment. (Exs. C and D) As shown by these affidavits the deterioration of Al-Ghizzawi’s physical and mental health over this past eighteen months is not only striking, but clearly irreparable. Perhaps the most amazing part is that Al-Ghizzawi still clings to life despite this absolute medical neglect. Counsel believes this is probably a testament to his burning desire to see his wife and young daughter one last time. It is certainly not a testament to the health care at Guantanamo,[2] which is at best abysmal, and at worst, non-existent.
Irreparable harm may be shown, as herein, where the movant’s health is in imminent danger. See, e.g., Blackman v. District of Columbia, 185 F.R.D. 4, 6-7 (D.D.C. 1999); Wilson v. Group Hosp. & Med. Servs., Inc., 791 F.Supp. 309, 314 (D.D.C. 1992). As asserted by Judge Gladys Kessler in her decision in Al-Joudi, et. Al. v. Bush, et. Al, 406 F. Supp.2d 13, 20 (DDC 2005), “where the health of a . . . vulnerable person is at stake, irreparable harm can be established.” In addressing the request for medical records made on behalf of other detainees at Guantanamo Bay, Judge Kessler continued, “[w]hile Petitioners do not lack legal competence as children do, they are indeed vulnerable to further physical deterioration, and possibly death, by virtue of their custodial status at Guantanamo and weakened physical condition.” Id. In making her decision, Judge Kessler relied primarily on affidavits submitted by attorneys of their observations of their clients and by statements of the detainees themselves, even though Guantanamo Bay officials denied those contentions as well.
Mr. Al-Ghizzawi’s case is even more pernicious than the detainees on a hunger strike. Mr. Al-Ghizzawi has been made vulnerable to further physical deterioration, and possible death, entirely as a result of his continued detention and lack of medical care at Guantánamo. Mr. Al-Ghizzawi is prevented from seeking further medical treatment or advice as a direct result of his on-going detention. The symptoms observed by his counsel and relayed by Al-Ghizzawi continue to suggest that he is in need of immediate medical treatment. In addition, the warnings of doctors at Guantanamo as to the true nature of Al-Ghizzawi’s condition signal an incomprehensible incompetence and cruelty. If Al-Ghizzawi goes much longer without treatment he will, in all likelihood, die of the many diseases he has acquired at Guantanamo despite his incredible will to survive. When this happens, the harm will, of course, be undeniably irreparable. For these same reasons it is imperative that the medical records be turned over to Al-Ghizzawi’s counsel. Without the records Al-Ghizzawi can never be certain that his true medical conditions are even being addressed, let alone addressed appropriately.
ii. Likelihood of Success on the Merits
Al-Ghizzawi is uncertain why he must show his likelihood to succeed prior to being afforded medical care but surely there is no detainee with a more compelling likelihood of success on his ultimate habeas petition than Al-Ghizzawi. Not only was he found to not be an enemy combatant by his original CSRT but one of the panel members (Lt. Col. Stephen Abraham) from that unanimous panel has referred to the evidence against Mr. Al-Ghizzawi as “garbage” in sworn testimony before a Congressional committee. (Upholding the Principles of Habeas Corpus for Detainees, 2007: Hearing before the House Armed Services Committee, 110th Cong., 1st Sess. (July 26, 2007) (statement of Lieutenant Colonel Stephen Abraham, U.S. Army Reserve) Although the likelihood of Al-Ghizzawi’s success on the merits, if he could ever have his habeas petition heard, is great… it will also be a moot point if he does not get the medical care he needs because he will never have the opportunity to proceed to the merits: he will be dead.
iii. Injury to the Government
Even the most callous of the government officials in this case have never made an argument that there would be injury to the Government were it required to provide Al-Ghizzawi medical care. Nor has there been any argument that there would be any injury from providing Al-Ghizzawi’s own medical records to his attorney. If the Administration attempts that argument now Al-Ghizzawi respectfully suggests that any burden the Government alleges as a result of providing medical care to Al-Ghizzawi and needing to copy this medical file must be balanced against the irreparable harm of Al-Ghizzawi’s imminent death. See, Serono Labs, Inc. v. Shalala, 158 F.3d at 1318.
iv. Public Interest Concerns
It is in the public interest for petitioners at Guantanamo Bay to have proper medical care and access to their counsel so that they might properly challenge their detention and so that the courts can best adjudicate their claims…in the event the courts ever get around to that.
Al-Ghizzawi’s request for both medical care and access to his own medical records is a request to allow himself and his attorney to have the full knowledge of his medical condition in order to keep him alive and best prepare his case. The request for medical care should be seen by this Court as a moral obligation by our country as well as in furtherance of the public interest.
Al-Ghizzawi’s right to medical treatment and his medical records is even greater than those of typical pretrial detainees, a proposition now only made more clear given his apparent contraction of AIDS while in government custody. Unlike those charged with crimes, Al-Ghizzawi has been detained with no charge whatsoever, but instead remains incarcerated solely on the Executive’s say-so. Al-Ghizzawi’s current designation as an enemy combatant is not a foregone conclusion as shown by the fact that his first CSRT unanimously found him not to be an enemy combatant; the fact that the government falsely claimed that they had “new evidence” and set up a second tribunal six weeks later confirms the illegitimacy of the government’s determination that Al-Ghizzawi has engaged in hostilities against the United States, or aided those who have, and this is the very core of Al-Ghizzawi’s underlying habeas claims. In any case, the rights Al-Ghizzawi seeks to exercise far exceed a challenge to the conditions of his confinement, which the government previously has argued is out of this court’s jurisdiction and will most likely so argue again. Even under the most deferential standard, published reports, many from the government’s own admissions in this case, illustrate that the government cannot be trusted to provide even basic minimal medical care. Government and military officials have admitted in this case that they have not provided Al-Ghizzawi with any medical treatment for either his hepatitis B or tuberculosis. Al-Ghizzawi also knows that they have not offered any medical treatment for AIDS and his infected liver. What Al-Ghizzawi cannot be sure of is whether the AIDS diagnosis is true; and, if true, how long the government has been hiding this diagnosis; and whether the diagnoses was withheld through medical incompetence or medical neglect or both… or perhaps something more insidious.
For all the reasons set forth above, this Court should Order the Government to immediately begin emergency medical treatment to Al-Ghizzawi and Order the government to immediately tender to Al-Ghizzawi’s counsel his complete medical records so that she can make sure that Al-Ghizzawi is obtaining proper medical care… and for such other and further relief as this Court deems just.

Submitted by,

__H. Candace Gorman____
Counsel for Petitioner

H. Candace Gorman

[1] If this Court is unwilling to entertain this Motion while awaiting direction from the Supreme Court Counsel for Al-Ghizzawi respectfully asks this Court to enter an Order stating it’s unwillingness so that Counsel need not waste precious time awaiting a ruling. Al-Ghizzawi can then promptly appeal and be in a position to show the Supreme Court that the lower courts are unwilling to act without further direction.
[2] Counsel previously submitted to this Court other affidavits from Dr. Reichen and affidavits from Dr. Jensen, two well respected medical doctors. Al-Ghizzawi will not repeat their prophetic warnings of irreparable injury in this motion. Those affidavits remain in the Court record as is the affidavit of the Governments Dr. Sollock who falsely claimed that Al-Ghizzawi was healthy.