Case 1:05-cv-01607-RCL Document 371 Filed 11/07/17 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AHMED GHULAM RABBANI (ISN 1461), Petitioner, v. Civil Action No. 05-CV-1607 (RCL) DONALD J. TRUMP, et al., Respondents. NOTICE OF PUBLIC FILING: RESPONDENTS’ OPPOSITION TO PETITIONER’S EMERGENCY MOTION FOR AN INDEPENDENT MEDICAL EVALUATION AND TREATMENT AND MEDICAL RECORDS Respondents hereby file on the public record a redacted version of Respondents’ Opposition to Petitioner’s Emergency Motion for an Independent Medical Evaluation and Treatment and Medical Records. See ECF No. 368 (opposition filed under seal). The opposition and accompanying exhibits are attached hereto as Exhibit 1. The redacted portions of the opposition and exhibits contain information designated by Respondents as “protected information” in accordance with Protective Order entered in this case. Dated: November 7, 2017 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General TERRY M. HENRY Assistant Branch Director /s/ Andrew I. Warden ANDREW I. WARDEN (Indiana Bar #23840-49) Senior Trial Counsel United States Department of Justice Civil Division, Federal Programs Branch Case 1:05-cv-01607-RCL Document 371 Filed 11/07/17 Page 2 of 2 20 Massachusetts Avenue, NW Washington, DC 20530 Tel: 202.616.5084 E-mail: Andrew.Warden@usdoj.gov Counsel for Respondents 2 Case Page 1 of 51 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AHMED GHULAM RABBANI (ISN 1461}, Petitioner; v. Civil Action No. OS-CV-1607 (RCL) DONALD J. TRUMP, et 3 Respondents. 3 OPPOSITION TO EMERGENCY MOTION FOR AN INDEPENDENT MEDICAL EVALUATION AND TREATMENT AND MEDICAL RECORDS Respondents hereby oppose Petitioner?s October 16, 2017, Emergency Motion for an Independent Medical Evaluation and Treatment and Medical Records (ECF No. 363) (?Petr.?s Mot.) and state as follows: Petitioner?s emergency motion for a preliminary injunction seeks (1) the production of his physical and mental records since July 2017; a medical evaluation to be performed by a medical examiner of Petitioner?s counsel?s choosing; (3) an order directing that Petitioner?s chosen medical examiner be permitted to provide Petitioner with any medical treatment the examiner deems necessary and and that the medical staff at Guantanamo Bay facilitate that treatment; (4) the production of daily reports about Petitioner?s physical and mental health; and an order requiring Respondents to follow procedures governing the medical care provided to hunger-striking detainees that Petitioner alleges were in place prior to September 20; 201?, but that Petitioner contends Respondents no longer follow. Petitioner alleges that he has UNCLASSIFIEDNFOR PUBLIC RELEASE Case Page 2 of 51 been on hunger strike for the last four years and contends that the medical staff at Guantanamo Bay recently stopped feeding him enterally. Petr.?s Mot. at 1-2. Petitioner asserts that, as a result, he has not eaten for approximately one month, his health has deteriorated rapidly, and he goes so far as to allege that he is ?precariously close to death.? Petr.?s Mot. at 10. Petitioner's allegations regarding the current state ofhis health are without merit, and Petitioner otherwise fails to establish that a preliminary injunction providing Petitioner the relief he seeks is warranted. As explained below and in the attached declarations of the Senior Medical Of?cer (8M0), Joint Medical Group (JMG), Joint Task Force Guantanamo Bay GTMO), Cuba, Petitioner was recently removed from enteral feeding because it is no longer medically indicated to preserve his life and health. Petitioner is not malnourished, and there is no merit to Petitioner's allegation that he has not eaten solid food recently or is medically incapable of doing so. To the contrary, Petitioner has been-eating solid food daily. Although Petitioner regularly refuses the meals offered in his cellblock-he routinely Further, he walks (including up and down Stairways) and engages in other physical activity well, participates in recreation time with other detainees, and engages in mental activity well. Additionally, there has not been a decline in Petitioner's health since his enteral feeding was discontinued on September 20, 2017, a decision reached only after a thorough review of Petitioner?s overall health and condition. Petitioner?s usual body weight for the last year was 102 pounds; he continues to maintain that average weight consistent with his personal, stated goal ofmaintaining his weight in the range of 102 to 105 pounds, a range he has stated that he 2 UNCLASSIFIEDNFOR PUBLIC RELEASE Case Page 3 of 51 believes somehow bene?ts his legal standing. Moreover, Petitioner?s weight has not rapidly declined since the suspension of his enteral feedings as would be expected of a person consuming inadequate caloric intake. Additionally, there is no factual support for Petitioner?s allegation that the medical staff at Guantanamo Bay is depriving him of appropriate care. Petitioner has had long-term daily access to medical care, but Petitioner regularly refuses to accept that care. The medical staff at Guantanamo Bay continues to monitor Petitioner?s health and condition, and in the event his physical appearance combined with his weight or other factors suggest malnourishment, then the staff woold re-consider him for involuntary enteral feeding. Accordingly, there is no factual basis supporting the extraordinary relief requested by Petitioner, which calls upon the Court to override the medical judgment of the Guantanamo medical authorities with respect to Petitioner and substitute thejudgment of a medical expert to be chosen by Petitioner. Petitioner can demonstrate neither that he has a likelihood of success on his legal claim of inadequate medical care nor that he satisfies the other factors required to obtain preliminary injunctive relief. Accordingly, Petitioner?s motion should be denied. BACKGROUND 1. Detainee Medical Care. Detainees at Guantanamo Bay have continual access to a robust healthcare system. Medical care to the detainees is provided by the Joint Medical Group (JMG). Ex. 1, Decl. of Senior Medical Of?cer dated Oct. 19, 201?? 1 (First SMO Declaration).' Currently, the MG The First SMO Declaration was initially attached as Exhibit 1 to Respondents? Motion for Extension of Time to Respond to Petitioner?s Emergency Motion for an Independent Medical Evaluation and Treatment and Medical Records (Get. 19, 2017) (ECF No. 365-1). While that 3 UNCLASSIFIEDNFOR PUBLIC RELEASE Case Page 4 of 51 staff consists o-nedically trained professionals, including four board- certified physicians. 1d. 1i 4. These four physicians, and the other professionals, are dedicated to the care of 26 of the detainees housed at Guantanamo. See id. Till I, 4. Additionally, the United States Naval Hospital, Guantanamo Bay, provides consultative services from additional medical professionals including an anesthesiologist, general surgeon, and an orthopedic surgeon. Id. 1] 4. And as necessary, the MG routinely brings in subspecialists to treat the detainees, including medical professionals practicing in the areas of dermatology, cardiology, otorhinolaryngology (ear, nose and throat), gastroenterology, urology, and audiology. Id. JMG can also request Subspecialists with other areas of expertise as needed. M. For most medical care requiring inpatient services, detainees are admitted to the TF - GTMO Detainee Acute Care Unit (DACU) or Detainee Medical Center (DMC). Ex. 1, First SMO Decl. 1] 9. The DACU is a-Tledical facility akin to an intensive care unit, and the DMC is .nedical facility. Both are staffed to provide more intensive, inpatient medical care solely to the detainees at GTMO. M. For mental health issues, alehavioral Health Services staff supports the outpatient mental health needs of the detainees, and runs the-Behavioral Health Unit (BI-1U) designed for detainees requiring inpatient care and monitoring. Ex. 1, First SMO Decl. 1] 9. The BHU staff includes two board-certi?ed and nine hospital corpsmen dedicated to the behavioral health mission. 10'. The BHU staff conducts mental health assessments, provides crisis intervention, develops individualized treatment plans, formulates motion remains pending, Respondents have worked diligently to file this Opposition to Petitioner?s emergency motion as soon as practicably possible. 4 UNCLASSIFIEDIIFOR PUBLIC RELEASE Case Page 5 0f 51 therapy for management of self?injurious ideations or behavior, and provides supporting care and medication therapy, as needed to treat of major disorders. Id. Together, the medical and BHU staff provide appropriate physical and mental health care for all detainees through a coordinated team approach based on individualized plans that account for each patient?s condition and circumstances. Id. The JMG is committed to providing appropriate and comprehensive medical care to all detainees. EX. 1, First SMO Decl. T. MG providers take seriously their duty to protect the physical and mental health of the detainees and approach their interactions with detainees in a marmer that encourages provider-patient trust and rapport and that is aimed at encouraging detainee participation in medical treatment and disease prevention. Id. To this end, all military health care personnel whose duties involve support of detainee operations or contact with detainees receive advanced training with their duties prior to evaluating patients. Id. 1] 5. The purpose of this training is to equip them to provide quality care in a detention setting by ensuring that they have a working knowledge and lmderstanding of the requirements and standards for providing health care to detainees. Id. Upon arrival at Guantanamo, permanent providers typically have mandatory orientation that includes classroom time as well as a two- week formal transition between incoming and outgoing personnel. Id- Department of Defense policy and instructions require .TMG personnel to focus solely on the proper medical care of the detainees. In particular, health care persomrel responsible for the medical care of detainees have a duty to protect detainees? physical and mental health and to provide appropriate treatment- EX. 1, First SMO Decl. 11 6; see Instr. 23100813, Medical Program Support for Detainee Operations, 4.1. The professional provider?patient treatment WW 5 UNCLASSIFIEDHFOR PUBLIC RELEASE Case Page 6 of 51 relationship between health care personnel and detainees is exclusively for the purpose of evaluating, protecting, and improving detainees? physical and mental health. Ex. 1 1] 6. Conversely, health-care personnel do not participate in detention-related activities or operations for any reason other than to provide health care services in approved clinical settings, to conduct disease prevention and other approved public health activities, to advise proper command authorities regarding the health status of detainees, and to provide direct support for these activities. Id. And more speci?cally, per Department of Defense policy, medical personnel involved in healthcare do not have any involvement in the supervision, conduct, or direction of interrogations. Int; see Instr. 2310.08E 4.9. All medical procedures performed are justi?ed and meet accepted standards of care. Ex. 1, First SMO Decl. 1] 7. A detainee is provided medical care and treatment based solely on his need for such care, and the level and type of treatment is dependent on the accepted medical standard of care for the condition being treated. Id. Medical care is not provided or withheld based on a detainee?s compliance or noncompliance with detention camp rules or based on his refusal to accept food or drink. Id. Medical decisions and treatment are not made or withheld as a form of punishment or discipline. Id. In general, health care is provided with the voluntary and informed consent of the detainee. Id. 1] 8; see Instr. 2310.08E, 4.7. All detainees, upon arrival at JTF-GTMO, receive a complete physical examination. Ex. 1, First SMO Decl. 11 8. Medical issues identi?ed during the examination, or identi?ed during Subsequent examinations, are monitored by the medical staff. Id. Detainees may make a request to guard personnel in the cell blocks or to the medical personnel who make daily rounds on each cell block, at any time to initiate medical care. Id. In addition to responding to such detainee 5 UNCLASSIFIEDNFOR PUBLIC RELEASE Case Page 7 of 51 requests, the medical staff will investigate any medical issues observed by JTF-GTMO guards or staff. Id. The availability of care through ongoing monitoring and response to detainee-initiated requests has resulted in thousands of outpatient contacts between detainees and the medical staff, followed by inpatient care as needed. Id. Multiple diagnoses and successful treatments have come out of this intense availability of care for those detainees who have chosen to engage with the medical department. Id. There are many detainees with common medical conditions such as diabetes, hypertension, high cholesterol, and musculoskeletal pains. Id. Quality healthcare metrics consistent with Department of Veterans AffairsIDepartment of Defense clinical practice guidelines are achieved with medications, physical therapy, and provider counseling. Id. Multiple diagnoses have been identified and controlled such as depression, anxiety, and schizophrenia, as well as a variety of personality disorders. Id. In summary, the healthcare provided to the detainees at JTF-GTMO is comparable to that afforded active duty service members on island. Ex. 1, First 8M0 Decl. 1i 7. Detainees receive timely, compassionate, quality healthcare and have regular access to primary care and sub- specialist physicians. Id. Medical Management of Detainees with Weight Loss. It is the policy of the Department of Defense to support the preservation of life by appropriate clinical means and standard medical intervention, in a humane manner, and in accordance with all applicable, current medical standards. Ex. 2, Decl. of Senior Medical Of?cer dated Oct. 27, 20171] 5 (Second SMO Decl.). Accordingly, there are procedures and protocols for providing medical care to detainees that guide clinical decision-making by all UNCLASSIFIEDIIFOR PUBLIC RELEASE Case Page 8 of 51 medical personnel within the detention facility at JTF-GTMO, including for detainees with weight loss. Id. JTF-GTMO's guidelines (La, Standard Operating Procedures) for managing detainees with weight loss are modeled on guidelines used by the US. Federal Bureau of Prisons. Ex. 2, Second SMO Decl. 1] 6. guidelines have evolved, and continue to evolve, over time based on, among other things, experience of providing medical care to detainees who have participated in non-religious fasting, both on a short-term and long-term basis Id. In March 2017, JMG updated its procedures. Id. This revision was intended to better describe the procedures for monitoring detainee weights, authorizing enteral feedings, and administering medical treatment to long-term enteral feeding patients. Id. The current procedures, as described further below, maintain the same framework for authorizing enteral feeding as the December 2013 procedures (which this Court previously considered in this case in 2014, see Rabbani v. Obama, 76 F. Supp. 3d 21 (D.D.C. 2014)). Id. The current procedures, like those that preceded it, are based on Department of Defense Instruction 23100813 section 4.7.1, which provides that in the case ofa hunger strike, medical treatment may be directed without the consent of the detainee where a medical determination is made that immediate treatment or intervention is necessary to prevent death or serious harm. Ex. 2, Second SMO Decl. 1] 6. And again, like all the enteral feeding procedures that preceded it, the current procedure continues to require that a decision to authorize enteral feeding must be based on a medical determination that intervention is necessary to prevent death or serious harm to the detainee. Id. UNCLASSIFIEDIIFOR PUBLIC RELEASE Case Page 9 of 51 To that end, the process for determining whether a detainee requires enteral feeding due to weight loss begins with close observation ofthe detainees. In particular, the JTF-GTMO guard force monitors the detainees? daily consumption ofmeals and records when a detainee refuses the provided meals. Ex. 2, Second SMO Decl. 1 7. These records are shared with JMG staff. Id. Additionally, medical-staff members typically weigh all detainees at least Id. 1 8. In the past, detainee weights were generally obtained on the cell blocks during routine medical visits. Id. 1? 9. The .IMG has discontinued that practice, however, due to repeated attempts by some detainees to manipulate their weight readings. Id. Id. As a result, recently identi?ed a scale that minimizes the opportunities for such manipulation, and that scale is now used to weigh all detainees. Id. . Id. When detainees are weighed with prosthetics, on a backboard, wearing restraints or other restrictive devices, or in an FCE?chair, the weight ofthose devices are subtracted from, or otherwise accounted for, when obtaining the measured weight. Id. As pertinent here, when the JMG is notified that a detainee has been refusing meals, the staff will then review the clinical medical information for that detainee. Ex. 2, Second SMO Decl. 1' lf, as a result ofthat review, the detainee is designated as being of medical interest based on his weight loss, the SMO undertakes a daily review of the detainee?s circumstances, including looking at his weight trends, overall nutritional intake, physical appearance, medical UNCLASSIFIEDIIFOR PUBLIC RELEASE Case Page 10 0f 51 conditions, and overall health. 151?. The SMO remains in continual communication with other JMG staff regarding observable detainee behavior, food consumption, and weight changes. Id. If medically indicated, the JMG will order more frequent weight checks for a detainee of medical interest for weight loss. Sea Ex. 2, Second SMO Decl. 1] 8. Currently, the frequency of weight-checks for detainees exhibiting weight loss varies from the frequency used in the past. Id. Based on experience, the JMG has determined that a case-by-case assessment of when a particular detainee?s weight needs to be taken is more appropriate than a set schedule. Id. This approach is geared toward respecting the detainees? autonomy (cg, time to attend classes or legal meetings, or to observe religious practices), and to performing medical procedures only when clinically indicated. Id. Using the detainee?s weight and other data collected about his consumption of meals and his overall health as a starting point, combined with any clinical signs of malnutrition, the SMO will determine if a detainee quali?es as having clinically signi?cant weight loss. Ex. 2, Second SMO Decl. 1] 10. Clinically signi?cant weight loss is a medical determination that may signal the need for further action to safeguard the detainee's life and health. Id. Various factors are considered when determining if a detainee has clinically signi?cant weight loss: whether the detainee?s weight loss is associated with clinical evidence of malnutrition (such as significant loss of body fat or muscle mass); (2) whether the detainee weighs less than 85% of his calculated ideal body weight whether the detainee has experienced a loss of weight greater than 15% of the detainee?s usual body weight; whether there is evidence of deleterious health effects accompanying the weight loss that reflect end-organ involvement or damage (such as cardiac syncope [loss of consciousness] or pre-syncope [for example, blurred vision 10 UNCLASSIFIEDNFOR PUBLIC RELEASE Case Page 11 of 51 or faintness], altered mental status, signi?cant metabolic derangements, muscle wasting). Id. Additionally, other risk factors for complications from fasting are considered, including (1) age greater than 64 years; (2) baseline Body Mass Index a. 18.5; (3) use of certain medications; and (4) certain chronic medical conditions (such as hypertension, cancer, renal disease, congestive heart failure}. Id. Also as part ofthe determination of whether a detainee is experiencing clinically- significant weight loss, the JMG conducts an overall medical assessment. See Ex. 2, Second SMO Decl. ?ll 1 1. This assessment includes a review ofthe detainee's personal background, his current health, and other potential health-related causes that might explain the weight loss. Id. Preferably, this review includes a physical examination ofthe detainee. including an electrocardiogram (EKG) and appropriate laboratory tests. See id. If the detainee refuses to consent to this evaluation, as they often do, trends in his weight versus his height are used as surrogate criteria to determine whether the detainee may have clinically signi?cant weight loss. rd. in all cases, this multi-factor decision is made with careful attention to the detainee's current weight, rapidity of weight loss, weight trend, water intake, and clinical appearance. Id. When the SMO has determined that a detainee has experienced clinically significant primaly medical provider will conduct a formal evaluation ofthe detainee which will include a complete medical record review, a history including nutritional intake, and an updated general 11 UNCLASSIFIEDHFOR PUBLIC RELEASE Case Page 12 of 51 physical examination (if the detainee will consent to it, to include updated vital signs, weight, and height), particularly noting findings consistent with malnutrition but paying special attention to signs of malignancy or infection. Id. Ifthe weight loss appears to be attributed to voluntary caloric restriction, the clinician will counsel the detainee on the health risks associated with clinically significant weight loss and encourage the detainee to resume eating sufficient food and drinking water. Id. results in a number of methods to ensure additional monitoring of the detainee?s condition; these can include offering the detainee, subject to his consent, (1) more frequent weight checks; (2) clinically?indicated laboratory tests to assess the detainee's physical and metabolic status (such as EKG, urinalysis, complete blood count and basic metabolic profile,); and an assessment by the BHU regarding the detainee's mental health as it relates to his refusal to consume nutrition. Ex. 2, Second SMO Decl. 1[ 12. Additionally, independent of whether or not the detainee consents, the JMG will (1) conduct biweekly assessments of the detainee?s health; (2) track,? -, the estimated percentage of food that the detainee consumed at each meal: provide twice in-depth reviews ofthe detainee?s medical status to the JTF-GTMO Commander, and continually consider the possibility of approval for involuntary enteral feeding if the detainee continues to refuse nutrition with signs of malnutrition. Id. The SMO will recommend involuntary enteral feeding only when it becomes medically necessary to prevent death or serious harm. Ex. 2, Second SMO Decl. 1] 13. This medical determination is based on a comprehensive, multi-factor evaluation ofthe detainee's health (such 12 UNCLASSIFIEDHFOR PUBLIC RELEASE Case Page 13 of 51 as detailed above), including any clinical signs ofmalnutrition the detainee may display. Id. lf involuntary enteral feeding is deemed necessary, the SMO, in coordination with the detaineels primary care provider and the JMG Commander will seek authority from the Commander, GYMO to begin involuntary enteral feeding without the consent ofthe detainee. 1d,; 3ch 2310.08E 4.7.1 (requiring such approval). A detainee will be removed from the involuntary enteral feeding list when he no longer shows signs of malnutrition. Ex. 2, Second SMO Decl. 1] 14. The assessment of whether a detainee is malnourished can be informed by, among other things, the detainee?s physical appearance, eating habits (to include eating solid food or drinking liquid nutrition such as Ensure, the commercially available supplement), his weight, his physical activity level, or if he consents -medical test results. Id. In the event the SMO determines that enteral feeding is no longer medically necessary, the SMO will present a request to the Commander that the detainee be removed from the list of those approved for enteral feeding. Id. Upon approval from the Commander, enteral feeding will cease. Id. After a. detainee is removed from enteral feeding,? and will be monitored for weight loss, fluid consumption, caloric intake, and evidence of refeeding as he transitions to voluntary meal consumption. Id. [11. Petitioner?s Medical Status. Over the past few months, a review was conducted ofthe detainee weight management UNCLASSIFIEDHFOR PUBLIC RELEASE Case Page First SMO Decl. 1] 1 1. When determining the necessity to maintain enteral feeding. detainees engaged in long?term calorie restriction raise certain medical considerations. in particular a determinr-ltion whether enteral feeding remains medically necessary in a person who has voluntarily restricted his calories to maintain a consistent low weight but who displays no signs of malnutrition. Ex. 2, Second SMO Decl. 1 More speci?cally. when a detainee has lived in a long?term state of undernutrition, that is, low body weight. the body adjusts to live at that weight and. so. the weight alone is no longer an indicator of malnourishment. Id. Trends in the baseline weight [usual body weight) with percentage changes become the new surrogate. non? invz-lsive marker of malnutrition for detainees who desire to express their autonomy by not participating in their healthcare. Id. Usual body weight is generally accepted as the weight over the preceding 12 months. M. For detainees who arrived over a decade ago. using an intake weight does not truly represent their goal weight and could paradoxically hurt them if that weight were regained too quickly. Accordingly. for detainees engaged in long?term fasting who maintain consistent low body weight. but who do not display signs of malnutrition, enteral feeding may no longer be medically necessary. 14 UNCLASSIFIEDHFOR PUBLIC RELEASE Case Page 15 of 51 As a result of this review ofthe weight management program and of all detainees who had been approved for enteral feeding. Petitioner was removed on September 20, 2017. from the list of detainees approved for involuntary enteral feeding because it was no longer medically indicated to preserve his life and health. Ex. 1, First 8M0 Decl. ll 12. Mr. Rabbani has been eating solid food daily. 153.11 13. Although Mr. Rahbani regularly refuses the communal food offered in his cellblock_ he routinely eats solid food? in see Ex. 2, Second SMO Decl. '1l He also frequently makes ?smoothies" as he desires. Ex. 1,1] 13. Further. other than his low weight, Petitioner currently does not show any medical signs that would support the continuation ofenteral feeding. Petitioner is not malnourished and has no known underlying medical condition that requires daily medical monitoring. Ex. 1, First 8M0 Decl. 1[ 12. He continues to ambulate without assistance, to participate in recreation time with other detainees. and to engage in mental activity wellSecond SMO Decl. 16, 17 (noting Petitioner was observed descending and climbing stairs, multiple times, including while carrying food? noting Petitioner physically and mentally appeared unimpaired when arguing with the SMO regarding the lack of medical need to continue his enteral feedings). As for Petitioner?s weightw it is stable. Mr. Rabbani has verbalized to the SMO and to his assigned physician on several occasions since May 2017 that his goal was to maintain his weight at 102?105 pounds due to that weight range's perceived benefit to his legal standing and case. 15 UNCLASSIFIEDHFOR PUBLIC RELEASE Case Page 16 0f 51 Ex. 1, First SMO Decl. 11 14; Ex. 2, Second SMO Decl. 11 16. His usual body weight for the last year (October 2016 4 October 2017) was 102 pounds. Id. His most recent weight on October 13, 2017, was 102.4 pounds (82% ideal body weight, 18.2 body mass index). Id. His weight on September 15, 2017, taken shortly before the discontinuation of enteral feeding, was 104.2 pounds (83% ideal body weight, 18.5 body mass index). Ex. 1 11 14. His weight on August 18, 2017, was 102 pounds (81.5% ideal body weight, 18.1 body mass index}. Ex. 2 11 16. His intake weight of 129 pounds was obtained in 2004 and as such is no longer relevant to any acute assessment given his prolonged, stable weight within his self-proclaimed goal of 102-105 pounds. Ex. 1 1] 14. His October 2017 weight represents neither a rapid decline nor suggests a person consuming inadequate caloric intake given that he has claimed not to have eaten since September 20, 2017. Id.; sea Ex. 2 11 16. While the JMG cannot con?rm his precise daily calorie intake since enteral feeding ceased, it is estimated based on his current weight trends that he is ingesting approximately 1200 Kcal, with 1400 Kcal needed to maintain his weight and 1500 Kcal needed to slowly increase his weight. Ex. 2 11 17. (One Kcal is equivalent to one food calorie, the measure typically used on nutrition labels. Id.) Each of these factors, along with others, led the SMO to recommend that Petitioner be removed from the list of detainees approved for enteral feeding. See Ex. 1, First SMO Decl. 1111 12-14; Ex. 2, Second SMO Decl. 16-17. Petitioner currently requires no special medical surveillance. Ex. 1 11 12. Nevertheless, he is at a minimum daily monitored visually by hospital corpsmen, registered nurses, or physicians, or if he accepts, by physical examination. Id. If his physical appearance combined with his weight or other factors suggested malnourishment, then he would be re-considered for involuntary enteral feeding. Id. 11 14. 16 UNCLASSIFIEDIIFOR PUBLIC RELEASE Case Page 17 0f 51 The JMG will continue to recommend to Mr. Rabbani that he resume a normal, regularly consumed diet of solid, nutritive foods with adequate hydration. Ex. 1, First SMO Decl. 1] 15. In addition, should Mr. Rabbani find solid food difficult to consume, he may engage with his physician to discuss his medical concerns. Id. Of note, should eating solid food be challenging for him, he may choose to drink the liquid arti?cial nutrition (Ensure Plus) provided to all detainees daily. Id. While he may have some degree of adjustment to increasing his caloric intake should he desire to eat in public on a regular basis, it is dif?cult to predict whether that would be the case since he is already eating solid food and has maintained a consistent weight for over a year now, including during the recent period when he claims he stopped eating. Id. As for the physical issues enumerated in Petitioner?s counsel?s affidavits, JMG has no evidence that they currently exist. Despite? continual monitoring by medical personnel, Petitioner has not been observed vomiting or losing consciousness. Ex. 2, Second SMO Decl. 11 18. Nor has Petitioner evidenced any change in his mental health over his baseline issues as confirmed by his on-going, regular and recent visits with the BHU staff. Id. 14. Other than those visits, Petitioner has chosen not to participate in his healthcare. Ex. 2, Second SMO Dec]. 1] 18. For example, Petitioner even currently refuses to accept vitamins. Id. He has similarly refused to request or has declined all medical appointments. Id. 11 19. As a consequence, on October 20, 2017, the SMO placed a physician order that Mr. Rabbani be scheduled for an appointment with him. Id. This scheduled, rather than requested, appointment ensured that Mr. Rabbani would be evaluated by the SMO if he were unable for any reason to verbalize a desire to meet with the SMO. Id. Since that date, Petitioner has refused every 17 UNCLASSIFIEDIIFOR PUBLIC RELEASE Case Page 18 0f 51 offered appointment. 1d. He has also refused offers of dental care and gastroenterology evaluations. Ex. 1, First SMO Decl. 1] 16. Despite Petitioner?s refusal to cooperate in his own healthcare, the JMG healthcare staff continue to assess him daily, generally when offering him medications that he refuses. Ex. 2, Second SMO Decl. 1] 19. There have been no new, documented medical complaints in addition to those already addressed before September 20, 2017. Id. 1T 18. He is essentially unchanged from his baseline level of health. Id. IV. Prior Hunger Strike Related Proceedings in This Case. In March 2014, Petitioner filed a motion for a preliminary injunction, challenging various procedures used to carry out enteral feeding. Mot. for Prelim. lnj. at 1-2 (Mar. 27, 2014) (ECF No. 306}.2 That motion closely paralleled a nearly identical motion filed shortly thereafter in a case before Judge Kessler, see Dhiab v. Obama, Civ. No. 05-1457, Mot. for Prelim. Inj. (April 18, 2014) (ECF No 203). In contrast to the claim now asserted by Petitioner, both of these earlier challenges to the JTF-GTMO enteral feeding policies included a claim that MG personnel were enterally feeding the respective petitioners without a medical need to do so, 11.9., that JMG had recommended them?and JTF-GTMO had approved them?for enteral feeding too 3 Among other things, that motion initially challenged (1) the use of forced cell extractions for detainees who refuse to voluntarily proceed to a medically necessary enteral feeding, (2) the use of searches for transfers to and from enteral feedings, (3) the use of restraint chairs for enteral feedings, (4) the use of two enteral feedings per day, (5) the insertion and withdrawal of a nasogastric tube for each enteral feeding, (6) the use of austiculation to verify proper placement of the nasogastric tube prior to enteral feeding, (7) the alleged overly rapid administration of the nutritional supplement during enteral feeding, (8) the alleged use of drugs to induce defecation during enteral feeding, and (9) the alleged premature use of enteral feeding with a non-religious faster before it was necessary to preserve his health or life. Id. 18 UNCLASSIFIEDNFOR PUBLIC RELEASE Case Page 19 0f 51 soon. After Judge Kessler found for the Government on every substantive issue presented in the case before her, including the claim regarding the allegedly premature approval of enteral feeding, see Dhiab v. ()bmaa, 74 F.Supp.3d 16 (D.D.C. 2014), this Court ordered the parties to advise it of the issues left in dispute, Order (Nov. 12, 2014) (ECF No. 340). After the parties complied, the Court issued its own opinion, denying the three issues that Petitioner contended remained viable after Dhiab. See Rabbani, 76 F.Supp.3d at 21-33. Two aspects of that opinion are potentially relevant here. First, this Court agreed with Judge Kessler that the deliberate-indifference standard?sand not the balancing test of Tamer v. Sri?ey, 482 U.S. 78 (1987)?was likely to govern the issues raised by Petitioner?s then pending motion for a preliminary injunction. Rabbani, 76 .Supp.3d at 24-26? And second was the Court?s reliance on the Government?s assertion, through the af?davit of the then-SMO, that based on consideration of multifactor health-related criteria, enteral feeding was then medically necessary to prevent Petitioner?s death or serious bodily injury. Id. at 27 8.: 27-28 n.6. That assertion was predicated on Petitioner?s condition at the time, more than three years ago. Speci?cally, after starting his non-religious fast in February 2013, Petitioner subsequently lost approximately 14 pounds in one-month?s time, between April and May 2013. See Resp?s Opp?n to Petr?s Appl. For a Prelim. lnj., Ex. 7, Decl. of Senior Medical Of?cer 4-6 (May 7, 2014) (ECF No. 214-2). During that same month, Petitioner was also brought to or reported to the medical spaces for treatment of fasting related complications at least six times. Id. 5-6. Accordingly, he was designated for involuntary enteral feeding in early May 2013. Id. 1i 8. As set out above, 3 The Court ultimately chose not to decide whether or not the deliberate-indifference standard did apply, because it concluded that Petitioner could not prevail on the merits of his injunction under either that standard or under Turner. See id. at 26-29. 19 UNCLASSIFIEDIIFOR PUBLIC RELEASE Case Page 20 0f 51 however, Petitioner?s weight is now stable, and has been for some time, and the current SMO has explained that based on on-going,? .continual daily monitoring of his medical condition by MG personnel, Petitioner does not Suffer from any of the other serious, acute conditions that informed the then-SMO?s opinion that led to Petitioner?s enteral feeding. ARGUMENT A preliminary injunction is ?an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.? Winter 12. Natural Res. Def: onncil, Inc, 555 U.S. 22 (2008). plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.? Id. at 20. The Court of Appeals has emphasized that the ?first and most important factor? is whether the moving party has ?established a likelihood of success on the merits.? Annier r. ()bnmn, 7'42 F.3d 1023, 1038 (DC. Cir. 2014). ?[W]hen a plaintiff has not shown a likelihood of success on the merits, we need not consider the other factors.? Greater New Orleans Fair Hons. Action Cir. v. HUD, 639 F.3d 1078, 1088 (DC. Cir. 201 The Supreme Court has also instructed that a preliminary injunction cannot issue on the basis of speculative or possible injury. Rather, the moving party must establish that irreparable harm is ?likely in the absence of an injunction.? Winier, 555 U.S at 22 {emphasis in original).4 4 In Sheriey v. Sebeiins, 644 F.3d 388, 393 (DC. Cir. 201 the Court of Appeals noted that Winier called into question the ?sliding?scale approach? to consideration of the preliminary injunction factors that had been the law of this Circuit. The Court of Appeals explained that prior decisions held that a strong showing by the movant on one preliminary injunction factor could make up for a weaker showing on another factor. See id. at 392. But the Court read 20 UNCLASSIFIEDHFOR PUBLIC RELEASE Case Page 21 0f 51 The Court of Appeals has ?set a high standard for irreparable injury,? requiring that it be ?both certain and great? and that the alleged harm is ?actual and not theoretical.? See Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (DC. Cir. 2006). The standard for a preliminary injunction is even higher in this case because Petitioner seeks a mandatory or af?rmative injunction that would alter the states one rather than preserve it. See, Texas Children?s Hosp. v. Bnrwell, 76 F. Supp. 3d 224, 247 (D.D.C. 2014) (Sullivan, Sweis v. US. Foreign Claims Settlement Comm 950 F. Supp. 2d 44, 48 (D.D.C. 2013) (Kessler, .). When a mandatory injunction is sought, ?the moving party must meet a higher standard than in the ordinary case by showing clearly that he or she is entitled to relief or that extreme or very serious damage will result from the denial of the injunction." See Sweis, 950 F. Supp. at 48. 1. Petitioner Is Not Entitled to Preliminary Injunctive Relief Because He Cannot Demonstrate A Likelihood Of Success On The Merits. Petitioner seeks an litany of extraordinary relief in this case: he seeks production of his medical and mental health records since July 2017? he seeks a medical evaluation to be performed by a medical examiner of Petitioner?s counsel?s choosing; he seeks an order directing not only that Petitioner?s chosen medical examiner be permitted to provide Petitioner with any ?Winter at least to suggest if not to hold that a likelihood of success is an independent, free- standing requirement for a preliminary injunction? such that a ?movant cannot obtain a preliminary injunction without showing both a likelihood of success and a likelihood of irreparable harm.? Id. at 393. Noting a split among the circuits on the interpretation of Winter, the Court of Appeals held that it did not need to resolve the question because the movant in Sherley failed to establish an entitlement to a preliminary injunction under the ?less demanding sliding-scale? approach. M. This Court need not address this issue here, as Petitioner?s claim for relief fails under either standard. 5 Petitioner seeks unredacted copies of those records. See Petr.'s Mot. at 19. 21 UNCLASSIFIEDNFOR PUBLIC RELEASE Case Page 22 0f 51 medical treatment the examiner deems necessary and appropriate, but also that medical authorities at Guantanamo be required to cooperate with the delivery of such care (and presumably be required to assist with such care because it is possible the doctor could recommend care that cannot be provided by him or her alone); and he seeks daily reports from JTF-GTMO about Petitioner's medical status. Petr.?s Mot. at 19-20. Petitioner additionally seeks an order requiring Respondents to follow procedures governing the medical care provided to hunger-striking detainees that Petitioner alleges were in place prior to September 20, 2017, but that Petitioner contends Respondents no longer follow, id. at 20; essentially, in context, Petitioner appears to be seeking an order from the Court requiring medical authorities at Guantanamo to resume enteral feeding of Petitioner. Petitioner argues that the Court may award these multiple levels of extraordinary injunctive relief under either the All Writs Act, 28 U.S.C. 165 or under jurisprudence addressing ?deliberate indifference to the serious medical needs? of non-criminal detainees. See Petr.?s Mot. at 12-16. As explained below, however, Petitioner cannot demonstrate a likelihood of success or entitlement to the relief he seeks under either rubric. Petitioner?s claim is that his health is endangered by recent decision that the enteral feeding of Petitioner is no longer medically necessary. That type of claim one alleging that the medical staff of a detention facility is not providing appropriate medical care to a detainee in custody is governed by the deliberate-indifference standard, and Petitioner should be required to make out such a claim to be entitled to any aspect of the extraordinary relief he seeks. See Wilson v. Setter, 501 US. 294, 303 (1991) (?Whether one characterizes the treatment received by the prisoner as inhumane conditions of confinement, failure to attend to his medical 22 UNCLASSIFIEDNFOR PUBLIC RELEASE Case Page 23 0f 51 needs, or a combination of both, it is appropriate to apply the ?deliberate indifference? standard articulated in Estelle Gamble, 429 US. 97 (citation and internal quotation marks omitted). Although this case does not involve pre-trial or other detention in a criminal-law setting, this Court has treated challenges to medical care and treatment of Guantanamo detainees as analogous to such claims and has applied the ?deliberate indifference? standard in considering requests for preliminary injunctions related to medical care. See Rabbant', 76 F. Supp. 3d at 24 (citing Dntab, 74 F. Supp. 3d 16 (D.D.C. 2014); OK. v. ann, 344 F.Supp.2d 44, 60-63 8.: n.23 (D.D.C. 2004); of? Geneva Convention (1) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of Aug. 12, 1949, art. 12 (wounded and sick combatants during international armed conflict on land ?shall not willfully be left without medical assistance and The deliberate-indifference standard requires Petitioner to establish ?acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.? Estelle, 429 US. at 106. This is a two-step test, consisting of an objective and subjective component. First, Petitioner must establish that his medical condition is ?objectively, sufficiently serious." Farmer v. Brennan, 511 US. 825, 834 (1994). A serious medical need is ?a condition of urgency, one that may produce death, degeneration, or extreme pain.? Ntetsen v. Rabin, 746 F.3d 58, 66 (2d Cir. 2014) (quoting Hathaway v. Congni't'n, 37 F.3d 63, 66 (2d Cir. 1994)). Second, Petitioner 5 Given that this case involves issues concerning the detention of enemy belligerents in a military detention facility, any standard less deferential to prison medical authorities than the deliberate- indifference standard should not apply, especially given that, under applicable precedent in this Circuit, Guantanamo detainees may not lay claim to the full panoply of constitutional rights applicable in other prison litigation contexts. See Ktyentba v. Obatna, 555 F.3d 1022, 1026 (D.C. Cir. 2009) (Guantanamo detainees lack constitutional due-process rights), vacated and remanded, 559 U.S. 131 (2010) (per curiam), reinstated, 605 F.3d 1046 (DC. Cir. 2010). 23 UNCLASSIFIEDHFOR PUBLIC RELEASE Case Page 24 0f 51 must establish that JTF-Guantanamo officials had ?a suf?ciently culpable state of mind? equivalent to ?subjective recklessness as used in the criminal law.? Former, 511 11.8. at 834, 839 (1994). Speci?cally, ?a prison official may be held liable . . . only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.? id. at 84?. The deliberate-indifference standard requires more than a showing of medical malpractice or negligence. See Estelle, 429 U.S. at 105-06; Brown v. District of Cotarttbitt, 514 F.3d 1279, 1283 (DC. Cir. 2008). Consequently, differences of opinion over matters of expert medical judgment or a course of medical treatment fail to rise to the level of a constitutional violation. See Estelle, 429 US. at 107; 0.1K, 344 F. Supp. 2d at 61', Banks 12. York, 515 F. Supp. 2d 89, 103 (D.D.C. 2007) (Huvelle, 1.). And a detainee is not entitled to medical care by, or directed by, providers of their own choosing. See Roberts v. 783 F.2d 867, 870 (9th Cir. 1986) prison inmate has no independent constitutional right to outside medical care additional and supplemental to the medical care provided by the prison staff within the institution?); United States ex rel. Hyde v. McGirtrtis, 429 F.2d 864, 867 (2d Cir.1970) prisoner?s right is to medical care_-not the type or scope of medical care which he personally desires") (citations and internal quotation marks omitted). Further, when considering deliberate-indifference claims by prisoners participating in a hunger strike, courts have consistently refused to intervene. See White v. Simeje, No. 10cv332, 2013 WL 1144466 at *2-3 (SD. Ill. Mar. 19, 2013) (rejecting deliberate-indifference claim challenging prison?s practice of daily nasogastric tube changes for hunger striking prisoner); Lewis v. Zea, 920 F. Supp. 2d 379, 388-389 (W.D.N.Y. 2013) (concluding that prison medical 24 UNCLASSIFIEDNFOR PUBLIC RELEASE Case Page 25 0f 51 staff were not deliberately indifferent to hunger-striking prisoner?s medical needs); Wilson v. Hardy, No. 11-06862, 2012 WL 400927 at *3 (ND. 111. Feb. 7, 2012) (holding that prison doctors were not deliberately indifferent when they removed nasogastric feeding tube of hunger striking prisoner because of infection risks); Brown 12. Graham, 07-CV-1353, 2010 WL 6428251 at 12-13 (N.D.N.Y. Mar. 30, 2010) (rejecting deliberate-indifference claim asserted by hunger striking prisoner where medical staff monitored and evaluated prisoner frequently); In re- Farrah, No. 08-MC-164, 2008 WL 2704541 at 1, 5 (MD. Pa. July 8, 2008) (holding that hunger- striking prisoner ?has asserted mere disagreement with the methodology of his feeding? and concluding that ?[t]he court will not direct a particular method of feeding. 1 will leave that to the medical professionals?); Lilly v. Torhorsr, No. 06-0008, 2006 WL 335458 at *6-7 (WD. Wise. Feb. 13, 2006') (rejecting deliberate-indifference claim challenging procedure by which enteral feeding was administered to hunger-striking prisoner). Notably, Petitioner has not identi?ed any case in which a court has intervened to alter the specific manner in which medical staff at a detention facility provides treatment to allegedly hunger-striking detainees. That is not surprising; that a detained individual would ?risk[] undermining his health by conducting a voluntary hunger strike undercuts his claim of deliberate indifference to serious medical needs.? See Brown, 2010 WL 6428251 at 13 n.3l (citing cases); see also Rodriguez 13. Brlley, 403 F.3d 952, 953 (7th Cir. 2005) (holding that prisoner cannot ?engineer? a deliberate-indifference claim by going on hunger strike and then blame the prison for the resulting injury). There is no aspect of the medical care being provided Petitioner that re?ects deliberate indifference by JTF-Guantanamo to any serious medical needs of Petitioner, and Petitioner 25 UNCLASSIFIEDNFOR PUBLIC RELEASE Case Page 26 0f 51 cannot demonstrate any likelihood of success on such a claim that would support the extraordinary relief Petitioner requests?relief that ranges from the production of medical records, to daily reporting on Petitioner?s medical status, to, ultimately, usurpation by Petitioner?s expert of the medical care being provided Petitioner by Guantanamo medical authorities. Indeed, the SMO Declarations re?ect that Petitioner is receiving attentive, detailed medical care, including robust monitoring of his weight, appearance, activities, and overall health to ensure that he does not become malnourished, care that is being provided in the face of Petitioner?s own decision to maintain a low body weight. In fact, his current medical care is limited solely by Petitioner?s regular refusal to permit JMG personnel to conduct tests and examination that would inform their assessment of his condition. Nevertheless, if in the future Petitioner?s physical appearance combined with his weight or other factors suggest malnourishment, then he would be re-considered for involuntary enteral feeding. Further, TF-GTMO medical authorities have offered, although Petitioner has largely refused, a range of other medical care, including vitamin supplementation, dental care, and gastrointestinal diagnostic examinations. $39 First SMO Decl. 1] 16; Second SMO Decl. ?l 18. Petitioner?s frequent, if not consistent, refusals to accept these services further undercuts Petitioner?s deliberate-indifference claim in this case. Saa Ail-Adam v. Obnma, 596 F. Supp. 2d 11 l, 121 n.1 (D.D.C. 2009) (noting that a hunger striking detainee refused to accept medical care on multiple occasions in finding that TF-GTMO was not deliberately indifferent to that detainee?s medical needs); Cherry v. Barge, 98 Fed. Appx. 513, 515 (7th Cir. 2004) (no deliberate indifference where doctors attempted to provide treatment but inmate declined) (citing cases). 26 UNCLASSIFIEDNFOR PUBLIC RELEASE Case Page 27 0f 51 Additionally, Petitioner cannot demonstrate a likelihood of success specifically with respect to his request that the Court inject Petitioner?s chosen medical expert into the delivery of care to Petitioner. As explained above, Petitioner is not entitled to medical care by, or directed by, providers of his own choosing. See Roberts, 783 F.2d at 870 prison inmate has no independent constitutional right to outside medical care additional and supplemental to the medical care provided by the prison staff within the institution?). For these reasons, Petitioner cannot demonstrate a likelihood of success on his deliberate- indifference claim related to his medical care. Petitioner, nonetheless, argues that the Court may grant the relief he seeks under the All Writs Act, based on his own allegations. Petr.?s Mot. at 14-15. Petitioner, however, cannot satisfy the stringent requirements for relief under the Act. The All Writs Act grants all federal courts the power to issue those writs ?necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.? 28 U.S.C. 1651(a). A court?s power under the Act is con?ned to process ?in aid of" the court?s existing jurisdiction; the Act does not enlarge thatjurisdiction. See Clinton, v. Goldsmith, 526 US. 529, 534-36 (1999). Further, the Act ?invests a court with a power that is essentially equitable and, as such, not generally available to provide alternatives to other, adequate remedies at law.? See Goldsmith, 526 US. at 537. And if a court is able to resolve issues that would be before it ?without resorting to the extraordinary measures contemplated under the Act, then such measures cannot be employed.? ITT Conmmnity Develop. Corp. v. Barron, 569 F.2d 1351, 1359 (11?1 Cir. 1978). 27 UNCLASSIFIEDNFOR PUBLIC RELEASE Case Page 28 0f 51 Nor does the Act give a court earte blanche to oversee all matters related to a subject area relating to issues before it. Goldsmith, 526 U.S. at 536-37.? Furthermore, because relief under the Act must be ?agreeable to the usages and principles of law,? the Act does not authorize the issuance of just any writ or relief that may be deemed desirable ?in aid of? a court?s jurisdiction. Rather, courts must look to the common law and other ?usages and principles? that have constrained such relief ?down through the years.? See, Jones v. Lilly, 37 F.3d 964, 968 (3d Cir. 1994); Rawlins 12. Kansas, 714 F.3d 1 189, 1196 (10th Cir. 2013). Here, the relief requested by Petitioner is neither necessary nor appropriate in aid of this Court?s habeas jurisdiction, nor would it be ?agreeable to the usages and principles of law.? For one thing, the Court?s jurisdiction with respect to Petitioner?s habeas case is not threatened. As explained above, Petitioner?s health situation is stable; he is not malnourished or in immediate danger of serious medical harm or death?quite the contrary?and he is receiving attentive health care. And although this Court previously determined that it could act to ensure current Guantanamo detainees? ongoing access to counsel under the governing protective order in these cases, see In re Gaantanamo Bay Detainee Continued Access to Counsel, 892 F. Supp. 2d 8, 28 (D.D.C. 2012) (Lamberth 1.), there is no issue of Petitioner?s access to his counsel in this case. 7' In Goldsmith, the Supreme Court rejected an order of a military appellate court under the Act to set aside an administrative action of the military that imposed a sanction on an individual (removal from military rolls) that a court-martial had declined to impose as part of its sentence of that individual, a sentence over which the military court had appellate jurisdiction. The Court noted that the military court was not ?given authority, by the All Writs Act or otherwise, to oversee all matters arguably related to military justice, or to act as a plenary administrator even of criminal judgments it has af?rmed." 526 U.S. at 537. 28 PUBLIC RELEASE Case Page 29 0f 51 Petitioner has been fully provided access to his counsel, and Petitioner does not contend otherwise. Indeed, Petitioner?s motion evidences that he has communicated regularly and recently with his counsel, not only writing to his counsel, but also engaging in telephone calls with his counsel on September 26, 2017, and October 18, 2017. See Petr.?s Mot, Decl. of Clive Stafford Smith 1i 10 (ECF No. 363-2), Supp. Decl. of Clive Stafford Smith? (noting 90- minute telephone call with Petitioner on Oct. 18, 2017) (ECF No. 364). And, as re?ected in counsel?s declarations submitted in connection with Petitioner?s motion, Petitioner certainly has been able to discuss his views and alleged situation in detail with his counsel.? See also Second SMO Decl. 1] 16 (Petitioner has advised SMO that he?Petitioner?believes that maintaining his weight in the 102-105 pound range supports his legal case). Petitioner has been afforded appropriate access to counsel, and, indeed, is taking advantage of that access, such that he is able to pursue any legitimate habeas claim he may choose. Although Petitioner couches his request for a multi-pronged injunction as relief necessary ?in aid of? the Court?sjurisdiction, in reality, his claim is nothing more than a challenge to his medical care, that is, to his conditions of confinement. His requested relief is nothing short of a full takeover of Petitioner?s medical care by an expert of Petitioner?s choosing, as well as dictation by Petitioner of the procedures at Guantanamo for dealing with hunger-striking detainees and the requirement that JMG personnel conduct whatever medical procedures that 5? See also Pete?s Mot. at 11 (?Mr Rabbani has been speaking with counsel and discussing his remaining claims for violations of international and domestic law, including war crimes, torture, unlawful, prolonged, and arbitrary detention, and unlawful conditions of confinement. He intends to pursue these claims, and has worked with counsel to discuss the facts and legal developments which may support them, to the extent his health has allowed him to remain involved"). 29 UNCLASSIFIEDNFOR PUBLIC RELEASE Case Page 30 0f 51 Petitioner?s expert requests. In fact, Petitioner all but concedes that what he is pursuing is nothing less than a new habeas claim, noting that he ?is willing to amend his habeas petition to include the latest [alleged] abdication of the government [sic] obligations under law, but given the exigency of the circumstances seeks relief via motion instead.? Petr.?s Mot. at 11 n.10; see atso id. at 13 detainee may ?challenge the conditions of his confinement in a petition for habeas corpus.? Aomer v. ()bamo, 742 F.3d 1023, 1032 (DC. Cir. 2014). The recent change of policy, with its consequent impact on the conditions of his con?nement, presents such a compelling circumstance for challenge?). As explained above, however, Petitioner cannot Succeed on any such claim under the applicable ?deliberate indifference? standard. and Petitioner should not be permitted to invoke the All Writs Act to obtain relief in circumvention of the legal standard that applies to challenges to conditions of con?nement such as Petitioner is asserting. Indeed, for that reason, Petitioner?s request for relief also fails under the All Writs Act because the relief would not be ?agreeable to the usages and principles of law.? Petitioner improperly invokes the All Writs Act to obtain relief speci?cally addressing his conditions of confinement?his medical care?when the principles of law applicable to such challenges prohibit such relief in the absence of a showing of deliberate indifference. Simply put, the All Writs Act does not provide a workaround for equitable relief that would otherwise be impermissible under governing law in these circumstances. Here, because Petitioner has no likelihood of success under the deliberate-indifference standard, he cannot conjure such likelihood by invoking the All Writs Act. Petitioner cites a number of other Guantanamo detainee cases, claiming that the relief he seeks has been ?routinely grant[ed]" under the Act. Petr.?s Mot. at 14. In fact, however, in most 30 UNCLASSIFIEDNFOR PUBLIC RELEASE Case Page 31 0f 51 of the cited cases; the Court ordered the production of medical records while specifically eschewing; unlike Petitioner in this case, any attempt to address detainees? conditions of con?nement or otherwise involve the Court in detainee medical care. See Al-Jaadi v. Bush, 406 F. Supp. 2d 13, 20 (D.D.C. 2005); Hasaya v. Gates; 588 F. Supp. 2d 7; 10-11 (D.D.C. 2008); v. Obanm; 598 F. Supp. 2d 67; 69-71 (D.D.C.. 2009); Abdallah v. Bash; 2009 WL 2020774; at *1 (D.D.C. July 9; 2009).9 These cases certainly do not support the broad relief Petitioner seeks; which; as discussed above; seeks to supplant and to second-guess the medical care being provided Petitioner with care to be directed by outside experts of Petitioner?s own choosing. Sec; hanatas afAllegheny County Jail v. Pierce; 612 F.2d 754; 762 (3d Cir. 1979) (stating that federal courts will ?disavow any attempt to second-guess the propriety or adequacy of a particular course of treatment" chosen by prison doctors). For these reasons; Petitioner cannot demonstrate a likelihood of success on his claims and; therefore; is not entitled to the mandatory preliminary injunctive relief he seeks. II. Petitioner Cannot Demonstrate Irreparable Harm in the Absence of Relief, and a Balancing of the Equities, as Well as the Public Interest, Weigh Against Granting Preliminary Iniunctive Relief. Petitioner is not entitled to the relief he seeks not only because he cannot demonstrate a likelihood of success on his claim; but because the other factors applicable to requests for preliminary injunctive relief also do not support awarding such relief in this matter. Here; 9 And with respect to the remaining cases cited by Petitioner in which medical examinations (but not care) by outside experts were permitted; Al-Ushaa v. Obama; 753 F. Supp. 2d 1; 6 (D.D.C. 2010); Zahair v. Bash; 592 F. Supp. 2d 16, 17 (D.D.C. 2008); those cases involved more serious factual scenarios allegedly impacting detainees? participation in their cases andfor a failure to take adequate account of the principles argued in this Opposition. 31 UNCLASSIFIEDNFOR PUBLIC RELEASE Case Page 32 0f 51 Petitioner cannot demonstrate that actual irreparable harm is likely, and the balance of the equities, as well as the public interest, do not support a grant of relief in this case. As explained supra, Petitioner is not malnourished, he eats solid food (albeit often Surreptitiously), and his weight is stable over the last year reflecting Petitioner?s choice to maintain his weight in the 102-105 pound range. He walks and engages in other physical activities without assistance, participates in recreation time with other detainees, and gives no sign of being unable to engage in mental activity well. He is regularly offered medical care, and he is observed or monitored, physically and medically, on a frequent, regular basis in furtherance of the approach of the medical authorities at Guantanamo to monitor and consider multiple factors to look for any indicia of malnutrition. If, in the future, Petitioner?s physical appearance combined with his weight or other factors suggest malnourishment, then he would be re- considered for involuntary enteral feeding. Thus, there is simply no basis for Petitioner?s claim that absent the intervention of the Court, his health and life are under threat and he will suffer irreparable harm. By contrast, the harm to the Government if the injunctive relief Petitioner seeks were to issue is quite evident. The injunction Petitioner seeks would interfere with the legitimate medical judgments of JTF-GTMO medical professionals and would subordinate that judgment to the judgment of Petitioner and his chosen expert. '0 Indeed, what Petitioner seeks is no less than '0 Additional unwarranted burdens on the Government occasioned by Petitioner?s requested relief would include the submission to Petitioner?s counsel of daily medical reports concerning Petitioner. Petitioner cites no authority for requiring medical professionals at Guantanamo, who are charged with overseeing and providing medical care to more than two dozen detainees, to drop what is otherwise required under their duties to provide Petitioner?s counsel 3 written, daily update on Petitioner?s condition. Furthermore, Petitioner?s apparent demand for unredacted medical records is unduly burdensome given that such records would identify various medical 32 UNCLASSIFIEDHFOR PUBLIC RELEASE Case Page 33 0f 51 to have the Court directly oversee his medical care. See Ai-Gnizzawi v. Bash, 2006 WL 284478] at *5 (D.D.C.) (asking for an order requiring respondents to perform additional medical tests directed by petitioner?s physicians is asking for direct judicial intervention into Guantanamo medical operations). Importantly, in the context of medical care related to hunger striking detainees, the Court in this case has previously credited and deferred to the multi-factor analysis of detainees? health used by Guantanamo medical authorities in considering the medical necessity for initiation of enteral feeding. See Rabbani, 76 F. Supp. 2d at 27" n.6. The Court in the current matter likewise should credit the same type of multi-factor consideration being used by Guantanamo medical authorities in determining whether continuation of enteral feeding is medically necessary. See generally id. at 28 (deferential standard traditionally applied to prison Operations is ?a standard this Court ?nds especially germane in the context of medical care given to prisoners"); cf. also Ai-Adani v. Obama, 596 F. Supp. 2d 1 1 l, 122 (D.D.C. 2009) (resolution of issues related to manner of care provided hunger-striking detainees ?requires the exercise of penal and medical discretion by staff with the appropriate expertise, and is precisely the type of question that federal courts, lacking that expertise, leave to the discretion of those who do possess such expertise?). For these same reasons, the public interest favors denying the preliminary injunctive relief Petitioner seeks, which calls upon the Court to override the medical judgment of the Guantanamo medical authorities with respect to Petitioner?and, by extrapolation, possibly with providers at Guantanamo?information normally redacted by the Department of Defense in discovery contexts to protect the privacy of those providers and prevent possible harassment of them should their identi?cation be otherwise disclosed, even inadvertently. 33 UNCLASSIFIEDNFOR PUBLIC RELEASE Case Page 34 0f 51 respect to other detainees purportedly on hunger strike? and substitute the judgment of a medical expert to be chosen by Petitioner. Because the preliminary injunctive relief sought by Petitioner would unnecessarily interfere with the ability of Guantanamo medical personnel to use their best medicaljudgment as to when to enterally feed and otherwise care for a detainee, the public interest weighs against the relief sought here. CONCLUSION For the foregoing reasons, Petitioner cannot satisfy the requirements for obtaining the extraordinary preliminary injunctiye relief he seeks. Accordingly, Petitioner?s motion should be denied. '1 See Petr.?s Mot, Decl. of Clive Stafford Smith 42-46 identifying other detainees purported to be on hunger strike and suggesting they also may be affected by challenged practice) (ECF No. 363-2). 34 UNCLASSIFIEDNFOR PUBLIC RELEASE Case Page 35 0f 51 Dated: October 2017 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General Civil Division JENNIFER R. RICKETTS Director Federal Pregrams Branch TERRY M. HENRY Assistant Branch Director Federal Programs Branch Ronald J. Wiltsie RONALD J. WILTSIE ANDREW I. WARDEN Senior Trial Attorneys United States Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Ave, NW Washington, DC 20530 Tel.: (202') 307-1401 Fax: (202) 616-8470 E-mail: Ronald.Wiltsie@usdoj.gov 35 UNCLASSIFIEDIIFOR PUBLIC RELEASE Case Page 36 of 51 CERTIFICATE OF SERVICE I hereby certify that on October 27:. 2017, I sent the forgoing opposition memorandum and exhibits to the following attorneys via electronic mail to: Tara Plochoclci Eric Lewis eric. Shelby Sullivan-Bennis Clive Stafford Smith eric. Anomeysfor Petitioner Andrew I. Warden ANDREW I. WARDEN (IN Bar #2384049) United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 Tel: 202.616.5084 E-mail: Andrew.Warden@usdoj.gov onnsei . for Respondents UNCLASSIFIEDHFOR PUBLIC RELEASE Case Page 37 of 51 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AHMED GHULAM RABBANI (ISN 1461). Petitioner, Civil Action No. OS-CV-1607 (RCL) v. DONALD J. TRUMP, et at, Respondents. Progosed ORDER Upon consideration of Petitioner Rabbani?s Emergency Motion For An Independent Medical Evaluation And Treatment And Medical Care (ECF No. 363), and Respondents? Opposition thereto. it is hereby ORDERED that the motion is DENIED. It is so ORDERED this day of 2017. ROYCE C. LAMBERTH Senior United States District Judge UNCLASSIFIEDNFOR PUBLIC RELEASE Case Document 371-1 Filed 11/07/17 Page 38 of 51 PUBLIC RELEASE IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AHMED GHULAM RABBANI 1461), Petirioner, v. Civil Action No. 05-CV- 607 (RCL) DONALD J. TRUMP, el al., Respondents. OPPOSITION TO EMERGENCY MOTION FOR AN INDEPENDENT MEDICAL EVALUATION AND TREATMENT AND MEDICAL RECORDS EXHIBIT 1 DECLARATION OF THE SENIOR MEDICAL OFFICER (Oct. 19, 2017) CONTAIN-SW PUBLIC RELEASE or commos- MD. Fears Pursuant to as use. 5,1745, I- hereby declare: IWI am a Commander in the United States Navy with over 23 years of active and reserve service. I currently serve as the Senior Medical Of?cer (8M0), Joint Medical Group (MG), Joint Task Force Guantanamo Bay (JTF-GTMO), Cuba. I am responsible for the medical care provided to 26 detainees at Guantanamo Bay and supervise the operation of the MG that provides medical care to those detainees.1 I have served in this position since April 2017'. 2pm I completed my residency in Fainily Medicine in June of 21313 and have been board certi?ed in the United States since that time. 3W1 have personal knowledge of the procedures that are in place for the operation and application of medical care at medical facilities, andI am responsible for ensuring that they are followed. Due to my responsibilities, 1 have personal knowledge of or have received information in the course of my responsibilities concerning the matters trained by Mr. Rabbani (ISN 1461) through his counsel in the Petitioner?s Emergency Motion for an Independent Medical Evaluation and Medical Records ?led on October 16, 2017. This declaration is based on information made available to me through my of?cial duties, inciuding discussions Ipersonally had with Mr. Rabbani?s Primary Care Manager (POM) and other JMG medical staff involved inthe medical care and treatment of Mr. Rabb'ani, as well as a review of pertinent medical records of Mr. Rabbard. As the 5M0, I have also had personal interactions with Mr. Rabbani on an outpatient basis. Joint Medical Group ?lm-The JMG staff consists of licensed, board-certi?ed physicians of different specialties. Specifically, as of October 2017, the medical staff has? professionally trained individuals, including one board certi?ed faint yoretan, one card certi?ed internist, two board certi?ed one certified physician?s assistant, a general dentist, licensed medicalfsurgieal nurses, hospital (formally trained Navy medical personnel akin to a ?medic? in the Army), various technicians (lab, radiology, phannacy, operating room, respiratory morass, physical therapy and biomedical mp air), and administrative staff. The United States Naval Heapital, Guantanamo Bay provides additional consultative services from numerous medical professionals including an anesthesiologist, general surgeon, an ordiopeoic surgeon, a licensed dietician,'and a physical therapist. We routinely bring in subspecialists, including medical professionals practicing in the areas of dermatology, cardiology, (ear, nose and throat}, gastroenterology, urology and audiology, and have the ability to request subspecialists from other areas as needed. I do not provide or oversee medical care for the 15 detainees designated as ?high-value detainees,? or I-IVDs. HVDs have their own Senior Medical Of?cer. Mr. Rabbani (Detainee ISN 14-61) is not an HVD. 1 UNCLASSIFIEDHFOR PUBLIC RELEASE man military health care personnel whose duties involve support of detainee operations or contact with detainees receive advanced training commensurate with their duties prior to evaluating patients. The purpose of this training is to equip them to provide quality care in a detention setting by ensuring that they have a working hrowledge and understanding of the requirements and standards for providing health care to detainees. Upon arrival at Guantanamo, permanent providers have mandatory orientation that includes classroom time as well as a two- week formal transition, between incoming and outgoing personnel. Subspecialists permanently stationed off of the island and making their ?rst visit to Guantanamo to otter subspecialty care have another medical staff member with them at all times to help acclimate and to assist in the provision of care. To' maintain continuity of care with the detainee, we make ever)r effort to keep the same subspecialists for their recurring visits to the island. Further, the Joint Task Force has medical linguists who have been assigned to the facility for many years allowing them to provide continuity daring medical sta?'turnover. GMAccording to Department of Defense Instruction 2310.03E, entitled Medical Ptogram Support for Detainee Operations, health care personnel responsible for the medical care of detainees have a duty to protect detainees? physical and mental health and to provide appropriate treatment. According to Directive 3115.09, sec. 3.4.3, decisions regarding the appropriate medical treatment of detainees are the province of medical personnel. The professional provider-patient treatment relationship between health care personnel and detainees is exclusivehr for the purpose of evaluating, protecting, and improving detainees? physical and mental health. Health care personnel do not participate in detention-related activities or operations for any reason other thanto provide health care services in approved clinical settings, conduct disease prevention and other approved public health activities, advise proper command authorities regarding the health status of detainees, and provide direct support for these activities. Per Policy, medical personnel do not have any involvement in the supervision, conduct, or direction of interrogations. ?Fm-The JMG is committed to providing appropriate and comprehensive medical care to all detainees. JMG providers take action sly their duty to protect the physical and mental health of the detamees and approach their interactions with detainees in a manner that encourages provider-patient trust and rapport and that is aimed at encouraging detainee participation in medical treatment and disease prevention. Detainees receive timely, compassionate, quality healthcare and have regular access to primary care and sub?specialist physicians. The healtheare provided to the detainees at is comparable to that afforded our active duty service members on island. All medical procedmes performed are justi?ed and meet accepted standards of care. A detainee is provided medical care and treatment based solely on his need for such care, and the level and type of is dependent on the accepted medical standard of care for the condition being treated. Medical care is not provided or withheld based on a detainee? a compliance or noncompliance with detention camp rules or based on his refusal to accept food or drink. Medical decisions and treatment are not made or withheld as a form of punishment or discipline. 8W detainees, upon arrival at receive a complete physical examination. Medical issues identi?ed during the examination or identi?ed during subsequent 2 . UNCLASSIFI EDHFOR PUBLIC RELEASE examinations, are monitored by the medical staff. Detainees may make a request to guard personnel in the cell blocks or to the medical personnel who make daily rounds on each. cell block at any time in order to initiate medical care. In addition to responding to such detainee requests, the medical staff will investigate any medical issues observed by JTF-GTMO guards or staff. In general, health care is provided with the voluntary and informed consent of the detainee in accordance with'DoD Instruction 2310.03E, Section 4.7. The availability of care through ongoing monitoring and response to detainee-initiated requests has resulted in thousands of outpatient contacts between detainees and the medical staff, followed by inpatient care as needed. Multiple diagnoses and successful treatments have come out of this intense availability of care for those detainees who have chosen to engage with the medical department. There are many detainees with common medical conditions such as diabetes, hypertension, high cholesterol, and musculoskeletal pains. Quality healthcare metrics consistent with Departrnent of Veterans Affairs/Department of Defense clinical practice guidelines are achieved with medications, physical therapy and provider counseling. Multiple diagnoses have been identi?ed and controlled such as depression, anxiety, and schizophrenia, as well as a variety of personality disorders. Elm-For most medical care requiring inpatient services, detainees are admitted to the Detainee Acute Care Unit (DACU) or Detainee Medical Center MC). The former is a-medical facility alo'n to an intensive care unit and the latter is ?medicel facility. Both are staffed to provide more intensive, inpatient medical care solely etainees at GTMO. An?ehavioral Health Services (HHS) staff supports the outpatient mental health needs 0 etamees, and runs th Behatdcral Health Unit (BHU) designed for detainees requiring inpatient care an monitoring. The BHU staff includes two board- certified and nine hospital corpsmen organized to support the behavioral health mission. The BHU sta?' conducts mental health assessments, provides crisis intervention, develops individualized treatment plans, formulates therapy for management of self~inj urious ideations or behavior, and provides supporting care and medication therapy, as needed to treat of major disorders. The medical and BI-IU staff provide appropriate physical and mental health care for all detainees through a coordinated team approach based on individualised plans that account for each patieot?s condition and circumstances. 10,119.11: is the policy of the Department of Defense to support the preservation of life by appropriate clinical means and standard medical intervention, in a humane manner, and in accordance with all applicable, current medical standards. Accordingly, there are procedures andfor proteccls for providing medical care to detainees that guide clinical decision-making by all medical personnel within the detention facility at including for detainees with weightless. PUBLIC RELEASE Mr. Rabbani 12W a result of this review, Mr. Rabbani was removed September 20, 2017.fron1 the list of detainees approved for invohultary enteral feeding because it is no longer medically indicated to preserve his iife and health. He is monitored daily by a combination of hospital corpsmen, registered nurse anchor physician line of site evaluation or physical esarninationfdiscussion, if he accepts, but he is not malnourished, requires no special medical surveillance, and he has no known underlying medical condition that requires dailyr medical monitoring. 13 WM Rabbani has been?eating solid food daily. Althou 11 Mr. Rabbani regularly verbally refuses the communal food offered in 11?s lamespite adequate access to nutritive, solid foods, Mr. Rabbani has verbalized to the EMU and to his assigned physician on several occasions since May 2017 that his goal was to . maintain his weight at 102-105 pounds due to his perceived bene?t to his legal standing. In fact, on September It}, 2017, during the course of being weighed, he mentioned that is stupid" . after be (Mr. Rah-bani) accidentally manipulated his weight above his goal of 105 pounds while trying to invalidate the scale weight. His usual body weight for the last year (October 2016 October 2017) was 102 pounds (that excludes the outlier elevated weight discussed above that the detainee attributed to 3M0 stupidity). His most recent weight on October 13, 2017, was 102.4 pounds (32% ideal bod};r weight, 18.2 body mass index). His weight on September 15, 201?, taken shortly before the discontinuation of enteral feeding, was 104.2 pounds {83% ideal body weight, 18.5 body mass index). His intake weight of 129 pounds was obtained in 2004 and is no longer relevant to any acute assessment given his prolonged, stable weight within his self- proclaimed goal of 102?105 pounds. His October 2017 weight represented neither a rapid decline nor suggested a person consuming inadequate caloric intake given that he has claimed not to have eaten since September 20, 201?. He continues to ambulate without assistance, participate in recreation time with other detainees, and mentate (engage in mental activity) well, to include arguing with medical staff attempting to perform assessments. if his physical appearance combined with his weight or other factors suggested malnourishment, then he would he rte-considered for involuntary enteral feeding. lam-ills JMG will continue to recommend to Mr. Rabbani that he resume a normal, regularly consumed diet of solid, nutritive foods with adequate hydration ??om the variety of 4 UNCLASSIEI EDHFOR PUBLIC RELEASE foods offered to all detainees in the setting. In addition, should Mr. Rabhani find solid food dif?cult to consume, he may engage with his physician to discuss his medical concerns. While he may have some degree of adjustment to increasing his caloric intake should he desire to eat in public on a regular basis, it is dif?cult to predict whether that would be the case since he is already eating solid food and has maintained a consistent weight for over a year now, including during the recent period when he claims he stopped eating. Should solid food be challenging for him, he may choose to drink the liquid arti?cial nutrition (Ensure Plus) provided to all detainees by the Joint Detention Group on their detainee menu. 16m Mr. Rabbani has had long-term daily access to medical and mental health care. He has re?isecl offered medical care in most instances, including offers of diagnostic procedures to evaluate additional medical complaints discussed with subspecialists. His last annual medical review was April 11, 2017. He had his nursing cell visit (unrelated to weight issues) on October 07, 2017 and he refused both a medical appointment with his physician on October 10, 2017 and a dental examination on October 12, 2017. Of note, his last gastroenterology evaluation was April 2917 and he has declined multiple c?crs to receive esophagoduodenoscopy (upper digestive) and colonoscopy (lower digestive) procedures to visualize his digestive system. He had an interval gastroenterology evaluation scheduled for October 20-17 but the subspecialist timeframe was adjusted for outside operational commitments. When that subspecialist returns, the detainee will again he offered an evaluation I declare under penalty of perjury under the laws of the United States of America that the forgoing is true and correct. Executed on October [2,2017 . Commander, Medical Corps, US. Navy UNCLASSIFIEDHFOR PUBLIC RELEASE Case Page 44 of 51 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AHMED GHULAM RABBANI (ISN 1461}, Petitioner, v. Civil Action NO. 05-CV-1607 (RCL) DONALD J. TRUMP: e! (23., Respondenrs. OPPOSITION TO EMERGENCY MOTION FOR AN INDEPENDENT MEDICAL EVALUATION AND TREATMENT AND MEDICAL RECORDS EXHIBIT 2 DECLARATION OF THE SENIOR MEDICAL OFFICER (Oct. 27, 2017) UNCLASSIFIEDHFOR PUBLIC RELEASE Case Page 45 of 51 1. Is: WECLARATION OF FAAFP Pursuant to 28 U.S.C. ?l?4ti. L-hereby declare: am a Commander in the United States Navy with over 23 years of active and reserve service. I currently serve as the Senior Medical Of?cer (SMO), Joint Medical Group (JMG), Joint Task Force Guantanamo Bay UTF-GTMO), Cuba. I am responsible for the medical care provided to 26 detainees at Guantanamo Bay and supervise the operation of the .I MG that provides medical care to those detainees' have served in this position since April 21, 201?. ZWI completed my residency in Family Medicine in une of 2013 and have been board certified in the United States since that time. 3. ?nu, I have personal knowledge of the procedures that are in place for the operation and application of medical care at JTF-GTMO medical facilities.1 and I am responsible for ensuring that they are followed. Due to my responsibilities, 1 have personal knowledge of or have received information in the course of my responsibilities concerning the matters raised by Mr. Rabbani (ISN 146]) through his counsel in the Petitioner's Emergency Motion for an Independent Medical Evaluation and Medical Records ?led on October 16, 2017. This declaration is based on information made available to me through my official duties, including discussions I personally had with Mr. Rabbanils Primary Care Manager and other JMG medical stal?l'involved in the medical care and treatment of Mr. Rabbani, as well as a review ofpertinent medical records of Mr. Rahbani. As the 5M0. have also had personal interactions with Mr. Rabbani on an outpatient basis. 4W1 previously submitted a declaration in this case explaining the medical services provided to detainees by the JMG and the current medical condition of Mr. Rabbani as of October 19, 20W. This declaration provides updated information about Mr. Rabbani's medical status as well as information about the policies and procedures JTF-GTMO follows to provide appropriate medical care to hunger-striking detainees. Medical Management of Detainees with Weight Loss 5. foil-1t is the policy of the Department of Defense to support the preservation of life by appropriate clinical means and standard medical intervention, in a humane manner, and in accordance with all applicable, current medical standards. Accordingly, there are procedures and/or protocols for providing medical care to detainees that guide clinical decision-making by all medical personnel within the detention facility at including for detainees with weight loss. guidelines (to, Standard Operating Procedure) for managing ?Vrv- detainees with weight loss are modeled on guidelines used by the US. Federal Bureau of I I do not provide or oversee medical care for the 5 detainees designated as ?high-value detainees,? or HVDs. HVDs have their own Senior Medical Of?cer. Mr. Rabbani (Detainee ISN 1461) is not an HVDUNCLASSIFIEDNFOR PUBLIC RELEASE Case Page 46 of 51 li?l?: Prisons. guidelines have evolved, and continue to evolve, over time based on, among other things, experience of providing medical care to detainees who have participated in non-religious fasting, both on a short-tenn and a long-term basis. In March 2017, JMG updated its procedures. The 2017 procedures. like those that preceded it, are based on Department of Defense Instruction 23 10.0813. Medical Program Support for Detainee Operations. Section 4.7.1. which provides that in the case of a hunger strike. medical treatment may be directed without the consent of the detainee when a medical determination is made that immediate treatment or intervention is necessary to prevent death or serious harm. The revisions made in 2017 were intended to better describe the procedures for monitoring detainee weights, authorising enteral feedings, and administering medical treatment to long-tenn cnteral-feeding patients. The current procedures, as described below, maintain the same framework for authorizing enteral feeding as the December 2013 procedures and continue to require that a decision to authorize enteral feeding must be based on a medical determination that intervention is necessary to prevent death or serious harm to the detainee. guard force monitors detainee consumption of meals and maintains records of when detainees refuse the provided meals. These records are shared with JMG staff who will then review the clinical medical in formation for any detainee who has been noted as having refused meals. The JMG SMO undertakes a daily review of detainees who are of medical interest based on weight loss that includes looking at weight trends, overall nutritional intake, the detainee's physical appearance. medical conditions, and overall health. 'l?he SMU remains in continual communication with other JMG staff regarding observable detainee behavior, food consumption, and weight changes. part of this data collection, medical-stat members typically weigh all detainees at least and more frequently as medically indicated. There have been variations of?the weight-check schedule for detainees exhibiting weight loss in the past. Based on experience, we have determined that case-by-case assessments of when a particular detaince?s weight needs to be taken are more appropriate than a set schedule. This approach is geared toward respecting the detainees? time to attend classes or legal meetings, to observe religious practices, and to perform medical procedures only when clinically indicated. QW'l-ln the ast. detainee wei Ihts were encrallv obtained on it When detainees are weighed with prosthetics, on a backboard, wearing restraints or other restrictive devices, or in an FCE?chair. the weight of those devices are subtracted from, or otherwise accounted for, in obtaining the measured weight. 10. sing the detainee?s weight and other data collected about his consumption of meals and his overall health as a starting point, combined with any clinical signs of malnutrition, Case Page 47 of 51 the SMO will determine ifa detainee quali?es as having clinically signi?cant weight loss, a medical determination that may signal the need for home!? action to safeguard the detainee's life and health. Various factors are considered when determining whether a detainee has experienced clinically signi?cant weightless: 1) whether a detainee?s weight loss or underweight is associated with clinical evidence of malnutrition (such as signi?cant loss of body fat or muscle mass); whether a detainee weighs less than 35% of the calculated ideal body weight (3) whether a detainee has experienced a loss of weight greater than 15% of the detainee?s usual body weight; (4) whether there is evidence ofdeleterious health effects accompanying the weight loss that re?ect end-organ involvement or damage (such as cardiac syncope [loss of consciousness] or pre-syncope [for example, blurred vision or faintness], altered mental status, signi?cant metabolic derangements, muscle wasting). Risk factors for complications from fastng include (1) age greater than 64 years: (2) baseline Body Mass Index {18.5; (3) use of certain medications; and (4) certain chronic medical conditions (such as hypertension, cancer, renal disease, congestive heart failure). 1 l. Wit-Trends in anthropometric data [height and weight) are used as surrogate criteria for signaling that a detainee may have clinically significant weight loss when detainees refuse physical evaluation of their condition such as vital signs, full physical exams, electrocardiography (EKG) or lab work that would provide other objective data about the detaince's health condition, which the detainees often do. In all events, however, the JMG conducts an overall medical assessment in deciding whether a detainee is experiencing clinically? signi?eant weight loss, including review of a detainee's personal background, current health condition, and other potential health-related causes that might explain the weight loss. This multi-factor decision is made with careful attention to the detainees current weight, rapidity of weight loss, weight trend, water intake, and clinical appearance. 12. When the 3M0 has determined that a detainee has ex erienced clinical] si rnificant wci ht los the 8M0 or the etainee 5 primary me we prov: er en con uct a orma eva uation ol 1 etainee which will include review of the information gathered when assessing whether the detainee has suffered clinically signi?cant weight loss, as well as more historical infonnation, such as a complete medical record review, a history including nutritional intake, and a general physical examination (if the detainee will permit it, to include updated vital signs, weight, and height), particularly noting ?ndings consistent with malnutrition but paying special attention to signs of malignancy or infection. lfthe weight loss appears to be attributed to voluntary caloric restriction, the clinician will counsel the detainee on the health risks associated with clinically signi?cant wei ht loss and encoura the detainee to resume eating sufficient food and drinking water. i ?results in a number of methods to ensure additional monitoring of the detainee?s condition; these can include offering l) more frequent weight checks; (2) clinically- indicated laboratory tests to assess the detainee?s physical and metabolic status (such as EKG, urinalysis, complete blood count and basic metabolic pro?le); and (3) an assessment by the BHU regarding the detainee?s mental health as it relates to his refusal to consume nutrition. Additionally, independent of whether or not the detainee consents, the JMG will (1) conduct UNCLASSIF EDNFOR BLIC RELEASE Case Page 48 of 51 biweekly assessments of the detainee? 5 health to the extent possible dependent on the detainee?s participation); (2) track, through monitoring_thc estimated percentage of food that the detainee consumes at each meal, provt twice monthl in-de th reviews of the detainee?s medical status to the JTF-GTMO Commander to approve the detainee for involuntary enteral feeding if he continues to refuse nutrition with signs of malnutrition. l3. WThe SMO will recommend involuntary enteral feeding only when it becomes medically necessary to prevent death or serious harm. This medical determination is based on a comprehensive, multi-factor evaluation of the detainee's health (such as detailed above) based on the detainee?s individual circumstance, including any clinical signs ofmalnutrition the detainee may display and the need for enteral feeding. if involuntary enteral feeding is deemed necessary, the SMO, in coordination with the detainee's primary provider and the Commander of the Joint Medical Group, will seek authority from the Commander of the Joint Task Force to begin involuntary enteral feeding without the consent of the detainee in accordance with Instruction 23 1 0.0813,, Section 4.11, which requires such approval to perform this medically necessary, life-preserving procedure. 14. detainee will be removed from the involuntary enteral feeding list when he no longer shows signs of malnutrition. The assessment of whether a detainee is malnourished can be informed by, among other things, the detainee?s physical appearance, eating habits (if he is getting suf?cient nutrients through solid food or through liquid nutrition such as Ensure), his weight, his physical activity level, or his medical test results (if he permits). In the event the SMO determines that enteral feeding is no longer medically necessary. the EMU will present a request to the JTF?Commander that the detainee be removed from the list of those approved for enteral feeding. Upon approval from the JTF Commander enteral feedin of After a detainee is removed from enteral feedin and will be monitored for weight loss, ?uid consumption, ea one in as he transitions to voluntary meal consumption. 15. WDetainees engaged in long-term caloric restriction present additional medical considerations. including determining whether enteral feeding remains medically necessary in a person who has voluntarily restricted his calories to maintain a consistent low weight but who does not show signs of malnutrition. More specifically, when a detainee has lived longterm in a state (low body weight), the body makes adjustments to live at that weight and the weight alone is no longer an indicator ofmalnourishment. Trends in the baseline weight (usual body weight) with percentage changes become the new surrogate, non-invasive marker of malnutrition for detainees who desire to express their autonomy and not to participate in their healthcare. Usual body weight is generally accepted as the weight over the preceding 12 months. For detainees who arrived over a decade age. using an intake weight does not truly represent their goal weight and could paradoxically hurt them if that weight were regained too quickly. Accordingly, for detainees engaged in long-term fasting who maintain consistent low body weight, but without displaying signs of malnutrition, enteral feeding may no longer be medically necessary. As noted above, an individualized, multifactor assessment is undertaken by the .IMG UNCLASSIFIEDNFOR PUBLIC RELEASE Case Page 49 of 51 1? I 1?11t22lr ?ii I and SMO to determine whether enteral Feeding remains medically necessary for a detainee engaged in long-term fasting. Mr. Rabbani 16. W111 the case of Mr. Rabbani, who has been monitored for clinically significant weight loss or has engaged in non?religious fasting since March 2013 and is considered as a long-term meal refuser, the factors and considerations discussed above led me to conclude prior to September 20, 2017, that enteral Feeding was no longer medically necessary to preserve his health and his life. In June 2017', during an internal quality assurance audit of an enteral feed procedure that happened to be with Mr. Rabbani, I discussed with him my concerns for his need for enteral feeding based on his well-nourished physical appearance at the time {recorded weights for the month ranged 99.5 101.5 pounds}. As he has stated numerous times since then, he believes that his enteral?feeding status with a goal weight in the 102-105 pound range supports his legal case. I expressed my thanks to him for his willingness to provide feedback regarding the enteral-feeding procedure to some of the new medical personnel, but also expressed my concern for his prolonged calorie restriction and his refusal to accept additional arti?cial nutrition to raise his weight above 105 pounds. In addition to the weights previously discussed in my prior declaration, on August 18, 2017, Mr. Rabbani weighed 102 pounds representing 31.5% ideal body weight and a BMI of 13. 1. None of the weights or the trend in the weight combined with his physical appearance suggested malnutrition. When I informed Mr. Rabbani on September 20, 2017, that he would no longer receive enteral feeding because it was not medically indicated, his facial appearance displayed appropriate fat distribution of a person who is well nourished and well developed. albeit thin. His negative verbal reaction and phvsical motion supported someone who was thinking clearly and capable of purposefully moving all Four extremities without assistance. However, because of mv concern for his wei ht and his attempts to manipulate weight measurement, Mr. Rabbani ?ensure adequate oversight of his weight trend pending an October weigh-in that was identi?ed in my prior declaration 102.4 pounds) and represented an upward trend above his usual body weight ot? 102 pounds for the previous 12 months. As a result. on October 13, 2017, there was no new medical indication to recommend resumption of enteral feeding, and Mr. Rabbani was again urged to increase his calorie intake because he is underweight. Of note, all weights discussed here and in my prior declaration are weights that accounted For and subtracted any physical restraints or other item that may have been on Mr. Rabbani during the weigh-in. On the evening of October 19, 2017, I personally observed Mr. Rabbani- his cell obscuring his movements with the use of a sheet desi nod to rovide rivae er removing container or Food used by all detainees} in his right hand while he walked down a ?ight of stairs unassisted (not using hand rails). I continued to observe his actions 'hile he Case Page 50 of 51 til and carried those against his body while he went to make a cup of tea. He walked up the ?ight of stairs unassisted, carrying his tea and the containers. He placed the containers in the bottom shelf of a lastic bin located in his cell behind the area previously obscured by the curtain He left his cell a sin w' hand. went ownt there was no evidence of disorientation, deconditioning, or any other form of overt impairment (physical or behavioral} to support that he was suffering from starvation, dehydration, or malnourishment. The above is documented as a progress note in his health record and supports multiple previous reports over the years of his consuming solid foods, either obtained himself or offered by other detainees. while continuing to verbalize to staff that he is refusing food. While I cannot con?rm his daily calorie intake due to his attempts to obscure food consumption or hide food, given the above, and the small change in weight over a month, 1 estimate his current daily consumption as at least1200 kilocalorie (heal), with a goal of approximately 1400 Kent to maintain his current weight and approximately 1500 Kent to slowly increase his weight. (One Kcal is equal to one food or large Calorie, the measure often used on nutrition labels.) Mr. Rabbani has chosen not to participate in a positive fashion in his healthcare. For example, his last acceptance of an ?as needed? (patient requested) oral multivitamin, which are available to all detainees, was February 2017. This multivitamin, in addition to thiamine and complex were changed to ?scheduled? [offered on a regular schedule, rather than patient requested) on September 23, 2017, as a means to potentially engage with Mr. Rabbani regarding, his healthcarc during his vcrbalized meal refusal. He refused every offered attempt at vitamins until October 16, 2017, at which time the thiamine and complex were cancelled by his PCM as no longer needed. Since October 16, 2017, he has continued to refuse the daily, scheduled multivitamin. His last dental appointment was in April 2017 for routine care but he was offered an additional appointment that he refused in October 2017 as mentioned in my prior declaration- Also as discussed in my prior declaration he has been offered multiple evaluations to address his gastrointestinal complaints. There has been no new, documented medical complaints in addition to those already addressed be fore September 20, 201?. In particular, Mr. Rabbani has not been observed nor has he complained of losing consciousness or vomiting. Additionally, Behavioral Health providers continue to assess Mr. Rabbani on a regularly scheduled basis, which Mr. Rabbani allows, as they have done in the recent past, unrelated to his current food refusal but have paid particular attention to any changes in current behavior. "1 heir last evaluation was October 26, 2017. He is essentially unchanged from his baseline level ofmedical and behavioral health over the last several months. [a??ihile Mr. Rabbani may request a medical appointment at any time, on October 20. 2017. placed a physician order that Mr. Rabbani be scheduled for a daily appointment with me pending the arrival of his new PCM. This scheduled, rather than requested, appointment ensured that Mr. Rabbani would be evaluated by me if he were unable for any reason to vcrbalize a desire to meet with me. It also ensured that there was no interruption in his access to care Case Page 51 of 51 should he desire to request it. Since that date, he has refused every offered appointment yet the liealtheare staff continue to assess him as needed, generally when offering the daily medication or vitamins that he refuses. I declare under penalty of perjury under the laws of the United States of America that the forgoing is true and correct, Executed on Commander, Medical Corps, US. Navy - -. -- a - - - UNCLASSIFIEDHFOR PUBLIC RELEASE