Appellate Motion

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT


ABDUL HAMID AL-GHIZZAWI
Detainee,
Guantanamo Bay Naval Station
Guantanamo Bay, Cuba;
Civil Action No. 06-5394 and 08-5136

Petitioner,
v.

GEORGE W. BUSH, et al.,

Respondents.





MOTION FOR INJUNCTION TO MAINTAIN STATUS QUO BY COMPELLING PROVISION OF LIFE-SAVING MEDICAL TREATMENT AND FOR EXPEDITED BRIEFING ON THE MERITS

__________________





Submitted this 11th Day of July, 2008.




I. INTRODUCTION
Petitioner-appellant Abdul Hamid Al-Ghizzawi ("Al-Ghizzawi"), who has been held prisoner at the United States military's Guantánamo Bay detention facility since approximately March 2002, brings this emergency application to this Court in the hope that he will not die or be irremediably incapacitated as a result of what he contends is deliberate medical neglect at the hands of the United States military so that he may exercise his now recognized Constitutional right to challenge the unlawfulness of his detention (Boumediene v. Bush, 553 U.S. ___; 2008 WL 2369628; 2008 U.S. LEXIS 4887 (2008) __U.S.__,) while that right is still meaningful.
Beginning sometime in 2004 Al-Ghizzawi’s health began to deteriorate. During the course of this litigation the government has admitted that Al-Ghizzawi suffers from both Hepatitis B and tuberculosis. Al-Ghizzawi filed motions on two separate occcasions with the District Court seeking medical treatment and his medical records. Both motions were denied. Al-Ghizzawi appealed the initial ruling and that appeal has languished these more than eighteen months without even a briefing schedule by this Court (06-5394). In the aftermath of Boumediene, and given the ongoing deterioration of his physical and mental well-being, Al-Ghizzawi respectfully moves this Court for an Order granting him an emergency affirmative injunction to compel the United States Government to provide him medical care and to provide his complete medical file to his counsel in order to enable his counsel to provide adequate representation in these proceedings, such relief is necessary to preserve the status quo, to wit, that Al-Ghizzawi not suffer death or permanent incapacity as a result of the lack of medical care during the pendency of his proceedings.
The District Court (BATES, J.) denied Al-Ghizzawi’s most recent Motion for Medical Records and Medical Care disregarding without comment the affidavits of Al-Ghizzawi, his counsel and Al-Ghizzawi’s medical expert (Dr. Juerg Reichen of Switzerland,a world-renowned hepatologist, or liver specialist) and without even seeing the need to review the medical records in camera before declining to order access to them. Instead the District Court uncritically accepted as true the statements from the Guantanamo medical staff despite the fact that the medical staff contradicted themselves in several important details and the fact that their account was expressly contradicted by Al-Ghizzawi’ presentation. The District Court inappropriately blamed Al-Ghizzawi for his own medical problems in holding “To be candid, then, if Al-Ghizzawi is currently suffering any harm from his medical condition, it is largely self inflicted.” (Slip opinion at 13) This statement purports to blame Al-Ghizzawi’s severe medical condition on a man who has been unlawfully, unjustly and arbitrarily held prisoner by the United States government for the last six and a half years in abysmal conditions, but this very statement also underscores the fact that the District Court did not conduct a proper inquiry as to whether or not Al-Ghizzawi is “suffering any harm.” It is time for this Court to correct the District Court's neglect on this point.
II. STATEMENT OF FACTS
Petitioner-appellant Al-Ghizzawi has been held for more than 6 ½ years at Guantanamo despite the fact that he was initially found to NOT be an enemy combatant in his first CSRT. A "do-over" CSRT was promptly ordered by the Pentagon and, as explained in a contemporaneous government email, an inculplery search was ordered to find reasons to continue to hold Al-Ghizzawi (and several other men also found to be non-enemies). As the email explained:
This does not justify making a change in and or (sic) itself
but is a filter by which to look …..By properly
classifying them as EC, then there is an opportunity
to (1) further exploit them here in [G] TMO and (2)
when they are transferred to a third country, it will
be controlled transfer in status..

Al-Ghizzawi’s case also brings forth the extraordinary additional fact that a member of his first CSRT panel, the panel that found A1-Ghizzawi to not be an enemy combatant included panel member Lt. Col. Stephan Abraham. Lt. Col. Abraham provided an affidavit to the Supreme Court in June 2007 in that Petitioner’s successful Motion to Reconsider the denial of Certiorari in Boumediene v. Bush,---- S.Ct.---,, 2007 WL 1854132, 75 USLW 3705, 75 USLW 3707 (U.S. Jun 29, 2007) (NO. 06-1195). In his affidavit Lt. Col. Abraham described not only the failed CSRT process and the pressure put on the CSRT panels to find the prisoners “enemy combatants” but he also described in detail the only panel that he sat on (panel 23) and the paucity of evidence against that specific detainee, Al-Ghizzawi, a man for whom there was clearly no evidence that he was an enemy of the United States and no evidence whatsoever that he had any connection to either al-Queda or the Taliban, petitioner-appellant herein. Lt. Col. Abraham mistakenly thought that Al-Ghizzawi had been released after the panel’s unanimous finding of the complete lack of any evidence that Al-Ghizzawi, was an enemy combatant or a threat to the United States and Lt. Col. Abraham did not know until July 2007 that Al-Ghizzzawi had been subjected to a do-over CSRT (based on the same evidence Lt. Col. Abraham’s panel rejected) and remained at Guantanamo.
Al-Ghizzawi was one of the prisoners who desperately wanted legal assistance because he believed that once a court saw the circumstances under which he was kidnapped and turned over to the American forces for bounty, and the complete lack of evidence to link him to terrorism or any hostility to the United States, he would be promptly returned to his wife and now seven year old daughter. Counsel volunteered to represent Al-Ghizzawi in 2005 and, although he was quite ill even at that time, he was actively engaged in the legal process and had been a great help to his counsel. However, in December 2006 Al-Ghizzawi was moved to the solitary confinement of Camp 6 and as a result of being placed in camp 6 Al-Ghizzawi’s physical and mental deterioration has been acute and precipitous.
Due to the ongoing and worsening physical and mental deterioration of Al-Ghizzawi it has become difficult for Al-Ghizzawi to continue to help his attorney in a meaningful way or to concentrate on his legal efforts and assist in his own case, lest the irony of the man whose own personal injustice led the Supreme Court to confirm this nation's commitment to habeas corpus dying of medical neglect at the hands of his unlawful captors become a sad reality. Without question, justice delayed any longer will truly be justice denied.
III. MEDICAL BACKGROUND
According to the then Chief Medical Doctor at Guantanamo, Dr. Ronald Sollock , in affidavits submitted to the District Court in September 2006, Al-Ghizzawi was subjected to complete medical tests by the military upon his entry at Guantanamo in 2002 and that Al-Ghizzawi entered in good health and was in good health at the time the affidavit was filed. That good health included the diagnosis of a history of Hepatitis B which was identified in tests performed in August 2002 and the fact that Al-Ghizzawi acquired Tuberculosis in 2004 while at the base. Al-Ghizzawi however was never told of the diagnosis by the military (it fell to his counsel to inform him of the diagnosis after Dr. Sollock’s affidavit was filed with the Court). In that same self-serving affidavit, the military described the medical facility at Guantánamo in misleadingly positive terms, but tellingly, also admitted that Al-Ghizzawi has never been treated for any of his life threatening medical conditions. At the same time that the doctor claimed Al-Ghizzawi was in good health he contradictorily justified the unconscionable neglect regarding Al-Ghizzawi’s serious medical conditions by falsely claiming that Al-Ghizzawi did not want to be treated, a disputed proposition that the District Court uncritically accepted. (Ex. A)
In response to Al-Ghizzawi’s second motion for medical care the government filed an affidavit from the new military doctor at Guantanamo, and as described further below, that affidavit contradicted the earlier affidavit submitted by Dr. Sollock in several important respects (including the admission that one of the indicators for liver damage was measurably increased as of tests done in November 2006, one month after Dr. Sollock reported that Al-Ghizzawi was in good health). To this day Al-Ghizzawi has not received any treatment for his life-threatening hepatitis B and/or his tuberculosis and counsel, as set forth in detail in her affidavit, describes the rapid and serious deterioration of Al-Ghizzawi’s health over the past year and a half. (Ex. B)
Al-Ghizzawi's counsel has attempted to visit him approximately every other month to monitor his deteriorating health in a thus far futile effort to convince his military jailers to provide him with adequate medical treatment and to move him out of the "super-max" conditions of the notoriously harsh Camp 6 where the cruel and inhumane conditions of that camp are clearly aggravating Al-Ghizzawi’s already frail state. During counsel's visit to see Al-Ghizzawi in February 2008, Al-Ghizzawi health had deteriorated to the point that his death seemed imminent. Fortunately he is still alive. Al-Ghizzawi’s mental health is also at risk because of the complete isolation he has been subjected to for more than one and a half years, in the notorious Camp 6. (Those conditions are more fully described in counsel’s affidavit Ex. B)
Even the District Court recognized the minimal intrusion in military operations to provide Al-Ghizzawi's counsel simple access to his medical records, records which could actually establish the merit-- or potentially even the lack of merit-- in Al-Ghizzawi's current application. We must ask ourselves, what is the government trying to hide?
IV. SUMMARY OF ARGUMENT
The Supreme Court has held that the Geneva Conventions are still the law of this country and if Al-Ghizzawi is to provide meaningful assistance to his counsel and, quite literally, to survive to have his habeas petition heard by a Court, a right the Supreme Court recognized as protected by the United States Constitution in Boumediene v. Bush, 553 U.S. ___; 2008 WL 2369628; 2008 U.S. LEXIS 4887 (2008) __U.S.__, and as set forth above, a right of peculiar significance to Al-Ghizzawi, whose CSRT panel “23” was the very basis of the Supreme Court’s decision to grant reargument in Boumendiene, he must be immediately provided with adequate medical treatment.

V. ARGUMENT
A. LEGAL STANDARD APPLIED BY THE DISTRICT COURT
The District Court applied the "deliberate indifference" to "serious medical needs" standard with respect to Al Ghizzawi's claims. The District Court also found that notwithstanding his allegations of serious medical neglect and potentially imminent death from a deliberate refusal to treat life threatening conditions, that this was really "only a disagreement as to medical treatment", and found no imminent harm. This standard is contrary to the standard set out in the Geneva Conventions and completely disregards the fact that Al-Ghizzawi is not a convicted criminal under our criminal justice system, or even one charged with a crime, but is a man who has been arbitrarily held without charge by the executive for more than six and one half years.
B. THE 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 require the United States 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) These basic medical provisions are not and have never been followed at Guantanamo and it is clear from the affidavits of Guantanamo’s medical doctors that Al-Ghizzawi--a man who the government admits suffers from tuberculosis -- has not even had a chest x-ray since August 2004.
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 or drive him to insanity. The Guantanamo medical facility has also shown through the affidavits of its commanding officers that it will go to any lengths to hide its incompetence in diagnosing and treating Al-Ghizzawi, making it all the more imperative that Al-Ghizzawi be sent to an appropriate civilian medical facility as required by the Geneva Conventions.
Those same Geneva Conventions require the humane treatment of prisoners. Al-Ghizzawi has sat in the boredom and tedium of solitary confinement for more than eighteen months. He is in a windowless cell and his access for fresh air and natural lighting is limited to those times when he is placed in a cage set out on gravel in the blistering heat of Cuba for, approximately 2 hours during a 24 hour period (sometimes this recreational time is provided in the middle of the night). Al-Ghizzawi has not spoken to his wife or heard the voice of his young daughter for more than six and a half years. He can no longer read or write because of the deterioration of his eye sight. He has no one to talk to unless he crawls on the floor and shouts to another prisoner through the slot on the floor where the food is pushed in. With no one to talk to but himself he spends his days talking to himself and washing and rewashing his clothes in his toilet bowl. There is nothing even remotely humane about this treatment.
Although the District Court utilized an inappropriate standard of review (a standard more appropriate for convicted criminals in the criminal justice system) Al-Ghizzawi would actually be entitled to his medical records if he was a convicted criminal and sentenced to prison in the federal prison. In fact, Al-Ghizzawi 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 Prisons'’s Program Statement 1351.05, section 14 (http://www.bop.gov/policy/progstat/1351_005.pdf).) (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, Article 55 of the Uniform Code of Military Justice, prohibiting cruel and inhumane punishment, as well as the Eighth Amendment to the United States Constitution.( 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).
C. THE DISTRICT COURT ERRED IN REFUSING TO GIVE ANY WEIGHT TO THE AFFIDAVITS PRESENTED BY PETITIONER
The District Court reviewed the affidavits from the government and the military doctors that detailed what they claimed was the care that was available to Al-Ghizzawi if only Al-Ghizzawi would avail himself of it. The District Court evidently disregarded the affidavits from Al-Ghizzawi’s side of the case, notwithstanding that Al-Ghizzawi's affidavits absolutely disputed everything the government said and that the government neglected or refused to provide the actual medical records to the District Court to demonstrate what it said was true. The District Court based its ruling solely on the unsupported and self-serving medical declarations from the military that detailed its version of the care available to Al-Ghizzawi and which inappropriately blamed Al-Ghizzawi for his own medical problems. That the doctors at Guantanamo have admitted that Al-Ghizzawi suffers from diseases that are potentially life threatening (hepatitis B and tuberculosis) and that he has not been treated for either of these conditions should have established as a per se matter that Al-Ghizzawi is not receiving adequate treatment for his life-threatening illnesses.
Al-Ghizzawi is compelled to seek immediate judicial redress from this Court to ensure that the government meets his urgent and compelling medical needs while awaiting his petition for habeas corpus to be heard. In addition, 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 is entitled to the protection 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). Al-Ghizzawi is being subjected to the cruelest form of punishment: the withholding of life saving medical treatment.
Unfortunately, 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. Al-Ghizzawi respectfully requests that this Court grant his request for immediate access to his complete medical records that would provide a basis for Al-Ghizzawi (1) to establish the medical neglect to which he has been subjected and (2) 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.


VI. CONCLUSION
Al-Ghizzawi’s right to access to his medical records and to receive immediate medical treatment is even greater than those of typical pretrial detainees. Unlike those charged with crimes, Al-Ghizzawi has been detained for more than six and a half years under the harshest of conditions and with no charge whatsoever, but instead remains incarcerated solely on the whim and caprice of the Executive. As described herein, Al-Ghizzawi’s current designation as an enemy combatant is hardly a foregone conclusion given that his first CSRT unanimously found him not to be an enemy combatant and that the evidence against him has been described, by at least one CSRT panel member, as “garbage”; the fact that the government falsely claimed that they had “new evidence” and set up a second tribunal a few weeks later undermines any legitimacy of the government’s determination that Al-Ghizzawi has engaged in hostilities against the United States, or aided those who have. This is the very core of Al-Ghizzawi’s’ underlying habeas claims. Even under the most deferential standard, published reports, many from the government’s own admissions in this case, illustrate that the government has shown that it cannot be trusted to provide even basic minimal medical care for Guantánamo detainees, and thus far, its actions have spoken for themselves in the case of Al-Ghizzawi.
For all the reasons set forth above, this Court should enter an emergency injunction to maintain the status quo by ordering the government to release Al-Ghizzawi’s complete medical file to counsel and to provide meaningful and adequate medical treatment immediately. Al-Ghizzawi respectfully suggests that the most efficient way to deal with the matters related to his medical treatment and medical records would be to name a special master to supervise these matters, to ensure that, in fact, as the District Court held without factual or legal basis, “the record is clear that adequate medical care is available and has either been provided or offered”.

Respectfully submitted,



H. Candace Gorman