Wednesday, August 6, 2008

Reply to Injunction-appellate court





Guantanamo Bay Naval Station

Guantanamo Bay, Cuba;

Civil Action No. 06-5394

Petitioner No. 08-5136


GEORGE W. BUSH, et al.,

Respondents. )




Submitted this 5th Day of August, 2008.


Al-Ghizzawi filed his present emergency application with this Court on July 11th for the purpose of compelling the Government to afford him adequate medical treatment, immediate disclosure of his medical records (the latter relief which would be available to any convicted prisoner in America let alone a man not even accused of a crime) and, relief from the cruel isolation of Camp 6, so that Al-Ghizzawi can assist his counsel in his own habeas proceedings.

Notwithstanding the Government’s arguments to the contrary this Court has plenary jurisdiction to review preliminary injunctions. See 28 USC Section 1292(a)(1). The failure of the District Court to hold a contested hearing, or even to ask the Government for the underlying back-up medical records for in camera review, warrants the injunctive relief Al‑Ghizzawi now seeks in order to ensure that the habeas corpus remedy to which the Supreme Court held that he and other Guantanamo prisoners are entitled in Boumediene v. Bush 128 S.Ct. 2229, 2274 (2008) does not become a dead letter because of continued stonewalling and Orwellian word games on the part of this Government behaving in absolute contempt of the law. Since filing his most recent motion for preliminary injunction in this Court on July 11th, Al-Ghizzawi’s condition has significantly deteriorated per the observation of counsel as set forth in Al-Ghizzawi’s July 17th filing in Response to the Governments motion which counsel filed while at Guantanamo and immediately after meeting with her client.

This Court should enter the emergency injunction sought by Al‑Ghizzawi to maintain the status quo by ordering the Government to release Al-Ghizzawi’s complete medical file to counsel, to provide meaningful and adequate medical treatment without delay and to remove Al-Ghizzawi from the complete isolation of Camp 6 to which he has been subjected for the past 20 months. Contrary to the machinations of the Government, these issues are fully ripe for review now and with respect to the instant motion, Al-Ghizzawi’s position is that to compel full briefing would be elevating form over substance when, quite probably, the life of a man whom the Governments own Combatant Status Review Tribunal (CSRT) found to be innocent of posing any connection to terrorism or threat to the United States hangs in the balance. However, counsel is fully prepared if this Court, in its discretion, prefers full briefing to resolve this issue on an expedited briefing schedule.

As the Government now concedes, Al-Ghizzawi’s two appeals([1]) need not be consolidated with any other case because Al-Ghizzawi's case is sui generis. Nonetheless, the Government makes the extraordinary assertion, without support (of course) that Al-Ghizzawi’s motion for injunctive relief would somehow greatly impact 200 other habeas cases (if not bring the defense of the Republic to a halt). This can only be the case if those 200 other cases involve men themselves dying at Guantanamo who are unable to give assistance to their counsel because of their own dire medical and mental condition. Even if this disturbing assertion by the Government is believable the Supreme Court in Boumediene held that the unconscionable delay of over six years and counting, which is entirely of the Government’s causing, can no longer be countenanced.

The Supreme Court has twice held that Al-Ghizzawi and others held at Guantanamo are entitled to protections of the Geneva Conventions (an argument raised in Al-Ghizzawi’s Original Motion herein and in the District Court but ignored by both the Government and that Court). Despite brazenly unlawful executive fiat to the contrary, such Geneva Convention protection mandates not only humane treatment but that Al‑Ghizzawi be afforded appropriate treatment in a civilian facility if the military facility cannot provide it. The military has clearly shown over these many years that it is completely unwilling and/or unable to provide proper care for Al-Ghizzawi thus necessitating the relief of a civilian facility as mandated by the Geneva Conventions.

The Government’s brazen attempt to minimize the scope of the Supreme Court’s decision in Boumediene by claiming, without any authority, that a habeas corpus remedy can somehow be afforded to Al-Ghizzawi without any requirement that Al-Ghizzawi be afforded any meaningful rights or procedural safeguards to even stay alive is not only astonishing but without merit, and wholly at odds with Boumediene. To put it even more bluntly, the remedy of a habeas corpus hearing is meaningless to a dead man (or a man who is forced into mental collapse).

In addition, the Government’s desperate argument that, in the face of the Supreme Court’s finding that Section 6 of the Military Commissions Act purporting to strip the federal courts of jurisdiction to entertain habeas corpus petitions is unconstitutional on its face, that nonetheless the Government can still apply Section 7’s stripping of jurisdiction is wrong, if not iniquitous. If this is the Government’s argument, then Section 7 is unconstitutional either on its face or as applied to Al-Ghizzawi, without question.

If this Court does not act quickly to reign in the Government from its medical neglect of Al-Ghizzawi he will soon either be dead or permanently mentally incapacitated. In such state, of course, he will hardly be able to assist his counsel in his own habeas proceedings. The attempt by the Government to muddle his sui generis situation – Al-Ghizzawi's CSRT found him not to be an enemy combatant and the affidavit of a member of the CSRT panel that so found was the basis for the U.S. Supreme Court's granting of reargument in Boumediene – with those of the over 200 other prisoners held at Guantanamo should be seen for the dilatory tactic that it is. Providing the relief Al-Ghizzawi seeks would have minimal impact on the military’s operations at Guantanamo, and in some respects, even the District Court agreed that affording him access to his own medical records would constitute almost no burden to the Government at all. In short, the issues pertaining to Al-Ghizzawi are simple enough, and well within this Court’s ability to resolve on the present record, without further delay.

II. Al-Ghizzawi’s Condition Demands Immediate Relief.

As outlined in Al-Ghizzawi’s motion for injunction to this Court, the District Court denied Al-Ghizzawi’s Motion for his medical treatment and medical records because the military told that Court, through the conclusory, unsupported, self-serving and disputed contents of an affidavit by the military personnel, that Al-Ghizzawi is just fine and (reminiscent of the Government’s use of Orwellian euphemisms of “asymmetrical warfare” or “intentional self-injurious behavior” to describe suicide attempts at Guantanamo), it is actually Al-Ghizzawi’s own fault that in some cases he can’t physically cooperate with some of the limited medical attention he is offered and that he is somehow playing with us all and does not want to be treated for his life threatening diseases. This outrage of finger pointing at the victim of the Governments abuse must end, and end now.

The District Court, without even asking to review the actual medical records decided to believe the Government and ignored the affidavits from Al-Ghizzawi, his counsel, and liver specialist Dr. Juerg Reichen, all of which contradicted the military doctors pat position of rosy health save for Al-Ghizzawi’s own recalcitrance. Despite the Government’s assertion that Al-Ghizzawi’s medical condition is “uncontroverted” the District Court ignored the actual controversy before it and just uncritically accepted as true the affidavit from military officials, to paraphrase this Court’s decision in Parhat, solely because the Government said it thrice. It is time to let the Government prove its position with the medical records, instead of continuing to taunt both Al-Ghizzawi and the Courts with its games of purported “we know better” and “trust us,” all the while accusing Al‑Ghizzawi of playing games.

Without the actual medical records before a court or available to Al‑Ghizzawi, it becomes the classic “catch 22.” How can Al-Ghizzawi possibly prove how dire his condition is without the records? How can Al‑Ghizzawi ever show he is in danger of immediate and irreparable harm if he is to be denied the records to which any prisoner in any other context would be entitled? Counsel who has personally witnessed Al-Ghizzawi’s deteriorating condition over the years and brought these observations to the Court is disregarded, apparently because she lacks a medical degree, though the Government will not, of course, permit her to bring a medical consultant to examine Al-Ghizzawi and will not, of course, tender the medical records. As noted in Al-Ghizzawi’s original motion even the International Committee for the Red Cross inadvertently raised concerns about Al-Ghizzawi’s health to counsel in late 2006 (Injunction Motion, footnote 2). Ironically, at the same time that the District Court found no reason to believe Al-Ghizzawi and his counsel regarding his medical condition the Department of Defense’s own Inspector General has opened an inquiry into the medical clinic at Guantanamo because of repeated claims of medical neglect and malfeasance. In short, the District Court’s uncritical acceptance of the Governments unsupported allegations warrants the granting of Al-Ghizzawi’s present motion by this Court.

A. The military’s “enemy combatant” determination is invalid.

Although the Government repeatedly refers in it’s response to Al-Ghizzawi’s designation as an enemy combatant his second CSRT (the one that found him to be an enemy combatant after the Pentagon intervened to call in a “do-over”) relied on a theory that he supposedly was affiliated with a group (the “Libyan Independence Fighting Group” or “LIFG”) that the Government claims (without support) was associated with al Qaeda or the Taliban and allegedly engaged in hostilities against the U.S. or its allies. However, nothing in the record of Al-Ghizzawi's CSRT or anything else, either classified or unclassified([2]), contained any evidence whatsoever that Al-Ghizzawi was a member of the LIFG or even that the LIFG was affiliated in any way with Al Qaeda, the Taliban, the September 11th plot, or any other act against the United States or its citizens.

In addition, publicly available documents demonstrate that on October 5, 2001, just prior to Al-Ghizzawi’s kidnapping in return for the bounty the U.S. offered in Afghanistan, the State Department's List of Foreign Terrorist Organizations released a list that did not include the LIFG. However, by December 8, 2004, some two and a half years after Al-Ghizzawi arrived in Guantanamo and just weeks after he was found not to be an enemy combatant, the State Department just happened to issue a new list of foreign terrorist organizations, and it just so happened that the State Department then designated the LIFG as a "foreign terrorist organization" within the meaning of section 219 of the Immigration and Nationality Act. On December 8th 2004 Al-Ghizzawi had been a prisoner for almost three years for ostensibly being a member of the LIFG while during that same period members of the LIFG could freely travel in the United States.

In the case of Parhat v. Gates, No. 06-1397, 2008 WL 2576977 (D.C. Cir. June 20, 2008), this Court held that the military’s Combatant Status Review Tribunal (“CSRT”) had invalidly declared that Parhat was an enemy combatant based on a similar alleged affiliation. Id. at *1. This Court directed the Government to release or to transfer Parhat, or expeditiously to hold a new CSRT consistent with the court’s opinion. Id. at *3. Al-Ghizzawi’s situation is indistinguishable. For the same reason as in Parhat, the Government has no lawful basis to detain Al-Ghizzawi in this action, as he was determined (the second time around after his first CSRT found no evidence of his being an enemy combatant) to be an enemy combatant under the very same discredited rationale that this Court found improper and voided as applied to Parhat. As Al-Ghizzawi has already been subjected to two CSRT’s it would be unconscionable and pointless to subject him to yet a third.


A. Habeas Jurisdiction And The Geneva Conventions Give Ample Basis To Grant The Relief Requested

The Federal Courts have broad power under 28 USC § 1651 to fashion equitable relief as may be necessary in aid of its equity jurisdiction in habeas cases. See SEC v. Vision Commc’ns, Inc., 74 F.3d 287, 291 (D.C. Cir. 1996) (noting that the All Writs Act “empowers court to issue injunctions to protect its jurisdiction”); see also Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (noting that centuries of tradition confirm that federal judges have “broad discretion in conditioning a judgment granting habeas relief”); see 28 U.S.C. § 2243 (directing courts to “dispose of [a habeas case] as law and justice require”); Carafas v. LaVallee, 391 U.S. 234, 239 (1968) (“mandate [of § 2243] is broad with respect to the relief that may be granted”); Jones v. Cunningham, 371 U.S. 236, 243 (1963) (habeas “never has been a static, narrow, formalistic remedy”).

The Federal Courts also have broad and specific authority to order appropriate relief under habeas corpus, including relief in the nature of bail or parole, addressed to the condition or maintenance of the prisoner prior to final resolution of the habeas petition. Baker v. Sard, 420 F.2d 1342, 1343 (D.C. Cir. 1969); Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001) (citing to Baker, 420 F.2d at 1343); Ostrer v. United States, 584 F.2d 594, 596 n.1 (2d Cir. 1978); Boyer v. City of Orlando, 402 F.2d 966, 968 (5th Cir. 1968) (ordering the release of a habeas petitioner on bail pending exhaustion of state and federal remedies). In addition, the writ of habeas corpus has long dealt with movement of prisoners. See, e.g., United States v. Mauro, 436 U.S. 340, 357 (1978) (power to issue writs of habeas corpus includes authority to issue such a writ when it is necessary to bring a prisoner into court to testify or for trial or to remove a prisoner in order to prosecute him in the proper jurisdiction where offense was committed).

In light of Al-Ghizzawi’s circumstances and this Court’s June 20 ruling in Parhat, the near-certainty of terrible harm to Al-Ghizzawi’s psychological well-being (if not the total and final deterioration of his health and the end of his life), and the astonishing length of his imprisonment without charge, Al-Ghizzawi has an urgent need, which cannot be remedied at law, to be protected from further medical neglect and from further exposure to the harsh regime of Camp 6.

The Geneva Conventions and the Supreme Court’s decision in Boumediene demand that Al-Ghizzawi be treated humanely and be afforded proper medical care until such time as his release. On information and belief, accommodations for Al-Ghizzawi are immediately available in Camp 4. Camp 4 at least permits prisoners to live communally in a bunk-house arrangement, and represents the least restrictive imprisonment regimen currently available at JTF-GTMO. Human company will allow Al-Ghizzawi to at least begin mental healing. Additionally Al-Ghizzawi must be afforded medical care at a civilian facility (as provided in the Geneva Conventions for situations such as here, where the military cannot or will not treat him) and his counsel must be provided his complete medical file so a proper determination and course of action can be planned.

B. There Is An Equitable Basis for Injunctive Relief Here

Al-Ghizzawi has more than shown the necessary factors for awarding injunctive relief. (1) Al-Ghizzawi will suffer irreparable harm if the injunction is denied; (2) no harm will be suffered by Respondents if the injunction is granted; (3) based on the record of Al-Ghizzawi’s two CSRT’s and in light of the decision in Parhat, Al-Ghizzawi is likely to succeed on the merits of his claim, and (4) there is a clear public interest in preventing the Government from refusing to competently treat its prisoner, in refusing to provide him medical records, and in holding a prisoner like Al-Ghizzawi in the astonishingly harsh, and potentially deadly isolation of Camp 6 particularly where the Government has no lawful basis to continue to detain him at all. See Al-Fayed v. CIA, 254 F.3d 300, 304 (D.C. Cir. 2001); Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998); Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998).


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 and is only still held because the military violated its own rules and conducted a "do-over" CSRT to avoid the embarrassment of explaining why it was, and still is, holding an innocent man for years, now more than six and a half years, despite his complete innocence. Al-Ghizzawi has been held in complete isolation for 20 months and in conditions that are saved for convicted felons of the worst order. These conditions have never been intended, let alone permitted, for innocent men held for years without charge. As the Government continues its stonewalling and Orwellian gamesmanship Al-Ghizzawi’s physical and mental health are being steadily and inexorably destroyed by the Government as a result of his isolation and untreated health problems. Rather than the Government admit that it has wrongfully held this innocent man, even after the Government's own CSRT process so found it, it has instead apparently decided to just keep him in isolation indefinitely, possibly until death. Because Al-Ghizzawi's case is sui generis Al-Ghizzawi begs this Court to end this extra-legal nightmare that is contrary to every value that this country purports to hold dear before it is too late for him and to reject the Government’s self-serving proposals for further delay. The issue now before this Court is well-defined. The Government has made its position crystal clear in its opposition papers. Although counsel will certainly provide additional briefing if the Court so requires, Al-Ghizzawi respectfully submits that the Government has been more than able to articulate the reasons for its position, and that this Court can make its decision on the record and submissions now before it, without yet further delay. 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 any 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.

[1] Al-Ghizzawi also has a DTA/Habeas Petition pending in this Court: Case No. 07- 1089.

[2] Those records are before this Court in Al-Ghizzawi’s appeal 06-5394 and his DTA/habeas petition.

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