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UN`ITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SALEH ABDULLA AL-OSHAN er al.,

Petitioners, Civil Action No.:
v.  Re Document No.:
BARACK OBAMA et al., ‘
Respondents.
MEMORANDUM OPINION

F|LED W|TH THE
COURT S URITY OF CER

§

   
 

FILED

0$-0520 (RMU) DEC 1 .. 2[)1[]
326 C|erk, U.S. District & Bankruptcy
Courts for the Dlstrict of columbia

GRANTrNG rN PART mo Dr:NvrNc rN PAn'r Pr:rrrronr-:n SHALAor’s MorloN 10 CoMrr:L

MavrcAL AND Psvcnl.n‘mc Vrslrs

I. INTRODUC'I`ION

This matter is before the court on petitioner Abdul Rahman Shalabi’s motion to compel

the govemment to permit medical and psychiatric evaluations by independent physicians. The

court determines that the petitioner has demonstrated that his medical and mental health

conditions threaten to compromise his ability to assist counsel in prosecuting his habeas pctition.

Accordingly, the court grants the petitioner’s request to allow independent physicians to evaluate

his current medical and psychiatric status and to determine a treatment plan for the petitioner in

collaboration with the Joint Medica1 Gnoup staff in the Guantana.tno Bay, Cuba. The court

further orders the gastrointestinal specialist who evaluated the petitioner in May 2010, a military

physician, to c0lIaborate with the independent physicians in conducting their evaluations and in

determining an appropriate treatment plan. The court denies, however, the petitioner’s request

for an order permitting independent physicians to travel to Guantanamo every six months in

order to provide follow-up care.

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II. FACTUAL & PROCEDURAL BACKGROUND
The petitioner has participated in a continuous hunger strike since August 2005. Petr’s
Mot. at 4. Throughout his hunger strike, Guantanamo personnel have delivered the petitioner’s
required sustenance by forced-feedings through a nasal tube twice a day. Id. As a result of
complications from his ongoing hunger strike, the petitioner has been hospitalized for the past
eighteen months. id During this time, he has required emergency intervention on at least three
occasions and, according to the petitioner, his "ongoing and severe constipation and rectal
bleeding have not been fully evaluated or treated." Id. at 2; Petr’s Supplement to Petr’s Mot.
Because of the petitioner’s hunger strike and consequent medical complications, this
court has been forced to intervene on several occasions to ensure that the petitioner’s health does
not deteriorate to the point where his right to counsel is endangered In June 2009, the court
granted the petitioner’s emergency motion for an independent medical and psychiatric evaluation
after determining that the medical and psychiatric issues raised in the motion were sufficient to
"raise[] substantial doubt as to his future ability to communicate with counsel." Mem. Op. (June
8, 2009) at 6. The following rnonth, the court specifically ordered that Dr. Emily A. Keram, an
independent psychiatrist selected by the petitioner, "be permitted to perform a comprehensive
psychiatric evaluation and preliminary medical evaluation ofpetitioner.” Order (July l4, 2009)
at 2. The court, however, limited the scope of Dr. Keram’s activities to those that she deemed
"necessary to evaluate petitioner Shalabi’s  ability to communicate with his counsel." ld.
at 2-3.
0n November 13, 2009, the court granted the petitioner’s request to allow an ear, nose

and throat ("ENT") specialist to evaluate the state of the petitioner’s nose and throat in light of

the nasal feedings and recommend altemative long-term feeding options. Order (Nov. 13, 2009).

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Dr. Joseph Finley, a military ENT specialist,'and Dr. Sondra Crosby, a private physician selected
by the petitioner, filed a report on january 6, 2010. Notice (Jan. 6, 2010), Ex.  ("January 2010
Joint Report"). The report recommended, among other things, that the petitioner "undergo a
psychiatric evaluation and monitoring, including a competency evaluation for decision making
capacity." Id. at 6. Although the doctors concurred that there was no chronic damage to the
petitioner’s nose or throat from the feedings, they proposed specific changes to the petitioner’s
feeding plan and recommended that he receive a gastrointestinal evaluation. Id. at 4-6. In light
of these recommendations, the doctors noted, the petitioner would require “close monitoring and
ongoing reeva1uation." Id.

In May 2010, a gastrointestinal endoscopy was performed on the petitioner by a military
physician. Govt’s Sealed Filing of Ex. C 1| 2. The physician diagnosed the petitioner with
gastroparesis, "a condition that indicates damage to the . . . nerve that regulates the digestive
system." Id. at 1 7. Due to this condition, "anything the [petitioner] consumes has the possibility
of remaining in the stomach and solidifying into a mass that causes a periodic obstruction at the
opening of the stomach to the small intestine." Id. As a result, "the stomach is unable to empty
properly, causing nausea, vomiting, feelings of ful|ness, and abdominal pain." Petr’s Mot. at 3.

'I`he petitioner’s “weight has fluctuated between approximately 100 to 104 pounds over
the past six months," largely because the petitioner is "unable to tolerate larger volumes in his
twice-daily feedings, and unwilling to change the frequency of his feedings or accept other
treatment." Id. at 7 . 'l`he petitioner claims that his other symptoms - including attacks of acute
abdominal pain, constipation and rectal bleeding - remain undiagnosed. Id. The military
physician concludes, however, that these symptoms are side effects of gastoparesis. Govt’s

Sealed Filing of Ex. C. 1|1| 13-14, l6. Additionally, the petitioner has reported symptoms which

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have resulted in "code yellow" alerts, a signal used by the Joint Medical Group to indicate “life-
threatening medical conditions requiring expedited evaluation." Govt’s Opp’n, Ex. B 1[ 17.
Although two of these incidents occurred in March 2010, Petr’s Mot. at 7, the petitioner recently
s collapsed to his knees and triggered a code yellow emergency on October l5, 20l0. !d.; Petr’s
Supplement to Petr’s Mot.
§ The petitioner claims that his interactions with medical staff at the Joint Medical Group
 throughout the past years have "tainted his ability to trust his current health care providers."
Petr’s Mot. at 10. For instance, during one of his forced-feedings the petitioner became
convinced that his food had been poisoned because of its acidic taste; it tumed out, however, that
"a small quantity of vinegar was . . . left in the bowl used to mix [the petitioner’s] food.” Id. at
1 l. The petitioner notes that although there have been providers in whom he has placed a greater
degree of confidence, "the rapid rotation of doctors in and out of Guantanamo has meant that
[the petitioner] has not been able to establish a long-lasting, meaningful patient-provider
relationship with any of them."' id
With regard to his mental health, the parties disagree as to whether the petitioner is
experiencing symptoms of post-traumatic stress disorder and major depression. C0mpare Petr’s
Mot. at 9 and Govt’s Opp’n at l2. Generally, however, the petitioner declines assistance from
the Joint Medical Group’s Behavioral Health Unit. Govt’s Opp’n at ll. Additionally, it does
not appear from the medical records that have been filed with the court that the petitioner has
received a competency evaluation which would provide insight into his decision making

capacity, as recommended in the january 2010 Joint Report.

For instance, the Senior Medical Off'rcer who mostly recently treated the petitioner began
working in Guantanamo in April 2010 and was scheduled to depart in October 20l0. Govt’s
Opp’n, Ex. B.

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On September 10, 2010, the petitioner filed the current motion to compel the govemment
to permit medical and psychiatric visits by Dr. Keram and Dr. Crosby. See generally Petr’s Mot
The petitioner asks that the court

(l) [perrnit these doctors] to travel to Guantanatno to assess [the petitioner’s]

current medical and psychiatric status, and consult with the [Joint Medical Group]

staff and [the petitioner] to facilitate a treatment p|an;

(2) require the military gastroenterologist who perfonned the previous evaluations

to travel to Guantanamo with Dr. Crosby in order to consult with her on further

evaluations and, if necessary, perform additional procedures; and

(3) permit Dr. Crosby and Dr. Keram to visit [the petitioner] at regular, six-month
intervals in order to follow up on his care.

Id. at 3. With this motion now ripe for adjudication, the court turns to the parties’

arguments and applicable legal standards.

I]l. ANALYSIS

The petitioner asserts that his motion "simply seeks to ensure that the orders previously
granted in this case regarding medical care are meaningful." Petr’s Mot. at 14. He argues that
habeas petitioners have a constitutional right to access the court which requires that they have
"meaningful access to counsel." Ia'. at 14. ln tum, the petitioner argues, he must be "sufficiently
mentally and physically healthy to participate in his own case." Id. The petitioner claims that
“[i]f Dr. Crosby and Dr. Keram are not allowed to travel to Guantanarno to meet with [him, then
he] will likely continue to withhold consent to recommended dietary modif'rcations, colonoscopy,
and other necessary medical proeedures, despite the best efforts of [the Joint Medical Group]
staff and [the petitioner’s] counsel to convince him otherwise.“ Id. at 16. The petitioner
contends that his undiagnosed conditions, borderline starvation and constipation are all

conditions that leave him "vulnerable to crisis." ld. Because "any physical and psychological

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harm that would ensue cannot be undone by any subsequent action by the Court or
Respondents[,] prevention is the only adequate relief." Id.

The government argues, as it has done in opposing the petitioner’s previous motions, that
"claims challenging conditions of confinement are not properly cognizable in habeas corpus
proceedings," and are barred by § 7 of the Military Commission Act of 2006, codified at 28
U.S.C. § 2241(¢)(1) and (2). Govt’s Opp’n at 14. 'I`he govemment contends that because the
petitioner "has not been deprived of access to counsel or information allowing counsel to make
an infonned assessment as to his medical condition, [he] does not have a legal basis for his
requested relief, under the All Writs Act or otherwise." Id. at 19. 'I`he govemment rejects the
petitioner’s position that his "ability to participate in these proceedings and present his claims to
the Court have been compromised as a result of medical issues," or that the petitioner’s
compliance with treatment is "akin to access and ability to communicate with counsel." Id. at
20-2l. Indeed, the government states that the petitioner "has utterly failed to demonstrate that
his access to counsel or communications with counsel have been actually harmed or will be
actually harmed in the imminent future to the detriment of his case." Id. at 23, n.14. According
to the govemment, the petitioner "is not seeking to preserve his relationship with counsel but to
establish a long-tenn medical arrangement with physicians of his own choosing and beyond that
provided by [the Joint Task Force]." Id. at 22.

In his reply, the petitioner states that his “health continues to be precarious, affecting his
ability to participate in meetings with his attomeys and endangering his long-term survival."
Petr’s Reply at l. More specitically, the petitioner’s “low weight and overall poor health"
require that the petitioner only meet with his counsel for two or three hours in a day, instead of

being able to meet with them for both the moming and afiemoon sessions set aside for detainee-

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counsel visits. Id. at 5. The petitioner points out that in April 2010, he was "too ill to meet with
his visiting attomeys in the carnp, and requested that they be permitted to meet with him in the

hospital. Counsel’s request to meet with [the petitioner] in the hospital, however, was summarily

-denied, and counsel were unable to meet with [the petitioner]." 1d. The petitioner further

asserts that this court has already evaluated and rejected the defendant‘s arguments that the court
lacks jurisdiction. id at 3.

As this court has previously noted, the court is tasked with ensuring that the petitioner has
meaningful access to his counsel, including the ability to meaningfully communicate with them.
Bounds v. Smith, 430 U.S. 81 7, 821-22 (l 977). "[I]n order to properly represent [habeas]
Petitioners, their counsel must have access to them, must be able to communicate with them, and
must be made aware if their clients are in such fragile physical condition that their fixture ability
to communicate is in imminent danger." Husayn v. Gates, 588 F. Supp. 2d 7, 10 (D.D.C. Nov.
28, 2008) (quoting Omar v. Harvey, 514 F. Supp. 2d 74, 78 (D.D.C. 2007)); see also Al-Joudi v.
Bush, 406 F. Supp. 2d 13, 21-22 (D.D.C. 2005). When a petitioner raises substantial doubt as to
his future ability to communicate with counsel, courts have required that a petitioner be
examined by independent physicians. AI-Shibh v. Bush, Civ. Action No. 06-1725 (D.D.C. .lan.
l6, 2009) (Order) at 1 (granting the petitioner’s request for production of medical records and an
independent medical examination); Husayn, 588 F. Supp. 2d 7, 12 (D.D.C. Nov. 28, 2008)
(granting the petitioner’s request to show his medical records to and consult with an independent
physician).

In this case, the petitioner’s experiences over the past year have demonstrated that his
ability to participate in this litigation in a meaningful way is jeopardized by his fragile mental

and physical state. Meetings between the petitioner and his counsel have been cancelled due to

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the petitioner’s health problems and emergency hospitalization Petr’s Reply at 5. 'I`he petitioner
has experienced at least three life-threatening medical emergencies as defined by the
govemment. Govt’s Opp’n, Ex. B 11 17; Petr’s Supplement to Petr’s Mot.

Additionally, the petitioner is at 71% of his ideal body weight. Petr’s Reply at 6.
According to Dr. Crosby’s previous testimony, "at 70 percent of ideal body weight, the body
begins to cannibalize its own muscle tissue for energy. This intemal metabolic process is
externally characterized by symptoms of abdominal pain, weakness, dizziness, and emotional
withdrawal." Id. Such a low body weight impedes the attomey-client relationship because, as
the petitioner discusses, he "experiences fatigue to the point that he cannot meet with his
attomeys for longer than several hours in a day," “experienccs regular abdominal pain which, at
times, is so severe that it causes him to collapse to the ground," and is generally "more
emotionally withdrawn and apathetic" during visits with counsel. Id. at 7.

Although the court lacks jurisdiction to alter the conditions of the petitioner’s
confinement, see Tumani v. Obama, 598 F. Supp. 2d 67, 69 (D.D.C. 2009) (citing !n re
Guantanamo Bay Detainee Litig., 570  Supp. 2d 13, 19 (D.D.C. 2008)); In re Guantanamo Bay
Detainee Lirig., 577 F. Supp. 2d 3 l2, 314 (D.D.C. 2008), two of the petitioner’s requests involve
the petitioner’s immediate health - a prerequisite condition to his ability to consult with counsel
and participate in this litigation. Thus, the court grants the petitioner’s request to allow Dr.
Crosby and Dr. Kerarn to evaluate the petitioner and orders that the military gastroenterologist,
who has evaluated the petitioner in the past, collaborate and consult with Dr. Crosby in her
evaluation. See AI-Shr'bh v. Bush, Civ. Action No. 06-1725 (D.D.C. Jan. 16, 2009) at l.

As for the petitioner’s request that these doctors be allowed to evaluate the petitioner

every six months, the court observes that it cannot predict if the petitioner’s health (and,

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accordingly, his access to counsel) will be in the same precarious state six months from now as it
is today. Thus, the petitioner, in effect requests a permanent change to his confinement
conditions untethered to his constitutional or legal rights, a change which the court cannot order.
If in the future, the petitioner’s circumstances warrant further evaluation, the petitioner may, at
that time, request appropriate relief. Accordingly, the petitioner’s motion to compel medical

visits is granted in part and denied in part.

rv. coNcLusroN
For the foregoing reasons, the court grants in part and denies in part the petitioner’s
motion to compel medical and psychiatric visits. An Order consistent with this Memorandum

Opinion is separately and contemporaneously issued this 19th day ofNovember, 2010,

R]CARDO M. URBINA
United States District Judge

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