Case 1:05-cv-01607-RCL Document 363-1 Filed 10/16/17 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AHMMED GHULAM RABBANI

)
)
Petitioner/Plaintiff,
)
)
v.
)
)
DONALD J. TRUMP, et al.,
)
)
Respondents/Defendants.
)
__________________________________________)

Civ. No. 05-1607 (RCL)

PETITIONER’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
HIS EMERGENCY MOTION FOR AN INDEPENDENT MEDICAL
EVALUATION AND TREATMENT AND MEDICAL RECORDS
Petitioner Ahmmed Ghulam Rabbani, by and through his undersigned counsel,
respectfully moves, pursuant to Federal Rule of Civil Procedure 65 and the All Writs Act, 28
U.S.C. § 1651, for an order compelling an independent medical evaluation and treatment as
necessary to sustain his life without needless suffering or harm, as well as production of his
medical records from the last three months to his counsel.1
Mr. Rabbani has been on hunger strike for four of the last 13 years of his incarceration
without trial at the detention facilities at Guantánamo Bay. Counsel’s most recent information is
that he weighs little over 90 pounds, approximately 33% less than his ideal body weight of 135
pounds. Mr. Rabbani came before this Court in 2014, seeking to enjoin force-feeding by
barbaric methods that caused serious harm to his physical and mental health. This Court denied
Mr. Rabbani’s motion on the grounds that “the government has a legitimate interest in keeping
Guantánamo detainees alive.” Mem. Op. at 7 (ECF No. 350). That is, the Court found that
1

Pursuant to Local Civ. R. 7(m), undersigned counsel contacted respondents’ counsel on
October 13, 3017 to seek their consent to the relief sought herein. On October 16, 2017,
respondents indicated that they would oppose.
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force-feeding was justified on the grounds that it was part of what the government represented—
over objection—to be a careful process, overseen by medical staff, who determined that the
feeding was undertaken as a measure necessary to preserve the lives of Mr. Rabbani and the
other hunger striking detainees. This conduct was in keeping with the government’s “obligation
to provide medical care for those whom it incarcerates.” Id. at 3.
Now a new Senior Medical Officer (“SMO”) has been appointed who has reversed the
earlier policy and ignored the obligations that the Court adumbrated in denying the previous
Motion for Preliminary Injunction. Instead, the government has implemented a modus operandi
of “deliberate indifference to serious medical needs,” in contravention of the constitutional and
statutory requirements set forth in Estelle v. Gamble, 429 U.S. 97 (1976) and this Court’s earlier
decision. Multiple sources within the detention facility have reported that as of September 19,
2017, the SMO has ordered that medical staff forego the long-standing policy and stop forcefeeding2 the hunger strikers and cease the medical monitoring of their now rapidly declining
health. (Declaration of Clive Stafford Smith ¶¶ 40-47 (“Stafford Smith Decl.”)) Challenges in
communicating with detainees have precluded counsel from obtaining additional information on
the execution of the government’s new policy of medical neglect.
Mr. Rabbani does not want to die. He wants relief from indefinite detention without
charge, and that is what his hunger strike is meant to express. He also wants a reprieve from the
barbaric and unnecessary practices that have been used to keep him alive during his hunger
strike. These are not incompatible objectives. The government now is allowing the strikers to
either reach the brink of death only to revive them after they have suffered serious risk of
permanent damage, or the alternative of eating ordinary food, which hunger strikers could not

2

The term “force-feeding” will be used to encompass all “enteral feeding.”
2

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digest—several years into a hunger strike—even if they wanted to. Neither of these are choices
in any meaningful sense of the word: both involve extreme suffering and risk of permanent
health risk, and after the years of torture, interrogations, confinement, and cruelty, Mr. Rabbani
is unable to endure either one. And he should not have to.
Mr. Rabbani will suffer irreparable medical harm and possibly even die—very soon—
without this Court’s intervention. Petitioner therefore seeks the following emergency relief: 1)
daily reports to counsel on his medical condition, including both physical and mental health; 2)
2) an independent medical evaluation; 3) immediate medical treatment, if necessary; and 4) the
production of his recent medical records to his counsel to aid their evaluation of whether and to
what extent Mr. Rabbani’s health has deteriorated to the point he is unable to participate in these
proceedings and the development of his case; 5) reversion to the application of their own
procedures as they existed prior to September 20, 2017, pending resolution of this motion; and 6)
expedited proceedings on this motion. This is a legitimate and necessary exercise to preserve the
Court’s habeas jurisdiction; if the government is allowed to destroy a detainee’s mental and
physical health, and even kill a detainee through neglect, he cannot avail himself of his right to
challenge his detention.
BACKGROUND
Petitioner has been detained at Guantánamo Bay for more than 13 years, and prior to that
spent almost two years in the CIA torture program. Stafford Smith Decl. ¶ 13. He has never
been charged with a crime. The conditions he has survived have tested the limits of human
endurance. First, he was accused of being an entirely different person—notorious terrorist
Hassan Ghul. Id. He is not, as the government agreed, but this revelation did not spare him from
545 days in the CIA’s torture program. Id. For the most part, he was kept in total darkness,

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except when his torturers showed him pictures of his wife and threatened to rape her, forcibly
kept him awake, or underwent some other novel, inhumane torture while being interrogated by
the U.S. government. Id. ¶¶ 14-15.
Since arriving in Guantánamo Bay, Petitioner has continued to be detained indefinitely
without charge or trial by court or military commission. The government has stated that his
captivity is necessary to ward off some putative “return” to some unidentified battlefield. Mr.
Rabbani maintains that this is nonsense, since he was never on any battlefield, and never took
part in any war against the United States. (Petition, ECF No. 1). Petitioner suffers from a range
of physical and mental infirmities, almost exclusively caused or brought on by his mistreatment
by U.S. authorities since his original detention on September 10, 2002. On account of this
treatment, he is susceptible to ongoing pain and trauma which are exacerbated by extreme
changes in his treatment, and which require constant monitoring. Declaration of Professor
Nimisha Patel ¶ 31-33 (“Patel Decl.”).
1. Previous Detention by the United States
Mr. Rabbani was held at a facility that has been called the Dark Prison in the environs of
Kabul for approximately seven months. Stafford Smith Decl. ¶ 17. The fact that he was in the
CIA torture program is corroborated by the Senate Select Committee on Intelligence Report
(SSCI Report).3 He was held in a cell that was very cold and constantly dark for the first six
months, and had deafening music blasted at him continually.

Stafford Smith Decl. ¶ 15.

Interrogators showed him pictures of his wife and said “we’ll get the words [information] we
need out of the anus of your wife,” he was told. Id. ¶ 14. Each time American interrogators
came for him, they would hood him, drag him forcibly out of his cell, slam him into the wall,
3

Executive Summary of the Senate Select Committee on Intelligence – Study of the CIA’s
Detention and Interrogation Program, at 325.
4

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drag him up some steps, and shackle him to the floor. Id. ¶ 16. Mr. Rabbani spent an entire
month shackled to a metal ring on the wall. Id. ¶ 17. From the Dark Prison, Mr. Rabbani was
taken to another prison which he referred to as the “Underground Prison,” where he slept on a
bed full of lice and in the freezing cold. Id. ¶¶ 18-19. Prisoners were often denied access to the
freezing showers and toilets. Id. ¶ 19. One American interrogator brought pictures of Mr.
Rabbani’s children and told him that he would never get to see them again. Id. After nine
months underground, Mr. Rabbani spent approximately 4 months in the prison in Bagram in
2004. He was kept in a small room that was freezing and was not allowed possession of a
Qur’an. Id. ¶ 20. It would be intolerably cruel if in fact Mr. Rabbani had not been the subject of
mistaken identity; his innocence only compounds the evil of his treatment.
2. Detention at Guantánamo
Mr. Rabbani reports that much of the abuse in Guantánamo Bay has been subtler, but no
less disturbing. Id. ¶ 21. Military personnel deprive him of sleep by constantly banging on his
cell door to try to force him to stop his hunger strike. Id. Mr. Rabbani is traumatized by the fact
that he remains in the custody of those who were responsible for his torture, and he has received
no meaningful treatment or therapy to help him deal with his experiences. Patel Decl. ¶ 12. To
the contrary, medical staff at Guantánamo have been complicit in detainee abuse; detainees have
reported that interrogators have known personal medical information that had only been shared
with doctors.
3. Hunger Strike
Upon leaving Afghanistan for Guantánamo in May 2004, U.S. soldiers informed Mr.
Rabbani that he would never return. Stafford Smith Decl. ¶ 21. Despite that prescient warning,
Mr. Rabbani held out hope for more than 10 years from the time of his capture that he would

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have a trial at which he could prove his innocence.4 Id. ¶ 23. By February 2013, that day had
yet to come, and Mr. Rabbani realized that it probably never would.

He exercised what

negligible autonomy he had by joining a peaceful hunger strike, but this was not without
consequence. As detailed in the motion for preliminary injunction previously filed in this action,
hunger strikers like Mr. Rabbani were force fed when they dropped below a certain percentage of
their ideal body weight. For Mr. Rabbani, this was 135 lbs. Id. ¶ 32. When he dropped below
85% of that, he was violently and forcibly extracted from his cell and medical personnel forced a
110cm-long tube5 through his nose and down his esophagus, causing him to vomit blood on a
regular basis. Id. ¶ 25.
a. Treatment and Monitoring of Hunger Strikers
The Senior Medical Officer at the Guantánamo Detention Facility had been using a
policy that outlined factors to aid in the determination of when to forcibly administer food or
medical treatment. These included 1) signs of damaged or failing organs; 2) pre-existing comorbidity that might accelerate organ damage or death, such as renal failure or a heart condition;
3) a hunger strike longer than 21 days; 4) a weight of less than 85% of the calculated ideal body
weight; 5) weight loss greater than 15% from the previously recorded weight.

4

Id. ¶ 30.6

Mr. Rabbani is unlikely to be charged or released. President Trump has stated publicly that
releases from Guantánamo Bay must end. Donald Trump says Guantánamo Bay releases must
end, BBC NEWs (Jan. 3, 2017), http://www.bbc.co.uk/news/world-us-canada-38502539. The
Administration is closing down the office that had been in charge of transfers, and the periodic
review system exists in name only. These developments underscore petitioner’s commitment to
peaceful protest, although the bleaker reality has further strained his mental health.
5
See Carol Rosenberg, U.S. attorney Defends Guantánamo Hunger Striker’s Forced-feedings,
MIAMI HERALD (Oct. 6, 2014), http://www.miamiherald.com/news/nationworld/world/americas/guantanamo/article2534404.html.
6
See Joint Task Force (JTF), Guantánamo Bay, Cuba, Joint Medical Group (JMG) Standard
Operating Procedure: Medical Management of Detainees on Hunger Strike, SOP-JMG # 001
(05 MAR 2013), at 13, available at: http://humanrights.ucdavis.edu/projects/the-Guantánamo6

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Petitioner challenged that policy as unnecessarily cruel and painful, but he did not seek to fast
unto death; to the extent that he was to be force fed, it could be done under standards that were
far less violent and damaging. That challenge was rejected; but it does not bear on the relief
sought here.
b. The Policy of Cruel Indifference Will Kill Hunger Strikers
The government has now converted Mr. Rabbani’s indefinite detention to a de facto death
sentence with a dramatic, secret change in its practice with respect to hunger striking detainees
under its care. The events of the last few weeks have made clear that it is no longer interested in
preserving their health, or even their lives, regardless of the hunger strikers’ wishes.

On

September 19, 2017, medical officers announced that they were stopping the tube feeding the
next day for the hunger strikers. Stafford Smith Decl. ¶ 41. At that time, Mr. Rabbani weighed
103 pounds, or 76% of his ideal body weight. Id. He spoke to the SMO and other officers, and
told them that “you know that I suffer of vomiting, I do not take food or consume it, and even if I
were to eat anything with the other inmates, I would throw it up.” He was not wrong. Mr.
Rabbani has been on a hunger strike for four years, and suffers from bleeding, indigestion, a
colon problem, ulcers, and other ailments. The SMO responded with indifference, and quipped
that this was Mr. Rabbani’s “own choice.” Id. Mr. Rabbani has had and retains the right to
peaceful protest and the hunger strike has been the only means available to him. At this point, in
any event, he cannot simply start eating again given his health condition and any intake of food
would needed to be under strict medical supervision, and such medical supervision has now been
removed.

testimonials-project/testimonies/testimonies-of-standard-operatingprocedures/hungerstrike_sop_2013.pdf (hereinafter Medical Management of Detainees).
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Detainee and long-term hunger striker, Khalid Qasim, informed counsel that the medical
team are under instructions from the SMO to stop force feeding, allow the prisoners to starve to
the point where their bodies and minds are damaged, permanently in all likelihood, whereupon
they will be kept half alive by a belated re-initiation of force feeding. Mr. Qasim stated in a
telephone call:
Before they used to say, ‘We watch your health, 9 meals or your weight, your
health is important, if you’re in a bad condition, force feeding is required.’ Before
the 20th. After that, they don’t say that. Since this new SMO come … he doesn’t
care about the health. But this SMO is different. He said, ‘if you get some damage
to your body it is your choice.’
I talked yesterday with Provider 5 who told me the same, ‘it’s your choice if you
get some damage, the tube feeding we don’t think about it this time. It’s on the
table this time.’ Provider 5 said that ‘if you get some damage that is your choice
because you don’t eat... Why would you wait?’
Id. ¶ 44. Khalid Qasim told the medical staff that the goal of his hunger strike is not to get
“some damage,” nor does he want to die. Id. ¶ 46. Like Mr. Rabbani, he is using the only means
at his disposal to protest an injustice that has lasted well over a decade.
The medical providers at Guantánamo are not just talking tough; they actually refused
Mr. Qasim medical attention when he felt his condition was dangerous. He asked for assistance
on October 2, but they sent a mental health worker instead, who did not conduct physical tests.
Id. at ¶ 45. That evening he asked them to check his blood pressure and his vitals. Id. They said
that he could not get such medical attention unless he would meet with the new SMO. Id.
Without that, he was not going to get anything. Khalid Qasim complained that it was the
corpsman or nurse who does that testing, not the SMO. But they told him that the SMO had
ordered them to withhold treatment unless he agreed to meet with him. Id.
Thus, the authorities in Guantánamo Bay are not just threatening Petitioner with force
feeding to compel them to end their hunger strike—as has been the case for four years—but are
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actively depriving him (and others) of medical care in order to try to coerce him to stop his
peaceful strike. And when his organs fail, or he goes blind, when he is already half-dead and
permanently injured, the government will step in and force him to remain half-alive. This is a
cruel and impermissible way to make a point, whatever it may be.
Before September 20, 2017, Mr. Rabbani already suffered from serious torture-induced
mental disorders, including Post-Traumatic Stress Disorder (PTSD), and chronic dysthymia.
Without the requisite care, Mr. Rabbani’s mental health is likely to further deteriorate. For
example, a common development of an untreated hunger striker is Wernicke-Korsakoff
syndrome, a form of encephalopathy that causes confusion, delusions, and psychosis. Id. ¶ 33.7
The lack of appropriate care therefore poses a serious risk to Mr. Rabbani’s continued
participation in his case, and endangers his competence to make decisions about how to
proceed.8 While he does not want to die—indeed, suicide is against his religious principles—and
under normal circumstances might cave in to the illegal coercion to end his hunger strike, the
deterioration in his mental health makes it likely that he will make an involuntary, incompetent

7

Petitioner seeks a proper independent medical evaluation and does not purport to be able to
resolve complex medical issues without one. However, it must be said that of the six indicators
identified in the literature - vision changes, loss of muscle co-ordination, unsteady uncoordinated
walking, loss of memory, inability to form new memories, and hallucinations – Mr. Rabbani
already
reports
them
all.
See
Wernicke-Korsakoff
Syndrome,
at
https://patient.info/doctor/Wernicke-Korsakoff-Syndrome.
In determining a prisoner’s competence, courts acknowledge that treatment in confinement can
be so egregious as to render decisions involuntary. Smith v. Armontrout, 812 F.2d 1050, 1053
(8th Cir. 1987), cert. denied, 483 U.S. 1033 (1987) (“This [competency] inquiry resolved into
two questions: first, whether Smith had the capacity to appreciate his position and make a
rational decision, or was suffering from a mental disease, disorder, or defect that substantially
affected his capacity; and second, whether the conditions of his confinement rendered his
decision involuntary.”).
8

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decision to continue with his strike to the point where his physical and mental health is seriously
and permanently compromised. And in any event, even if he would end his hunger strike, he
cannot just start eating again.
It has been 26 days since the day the force-feedings and close medical monitoring
stopped. Mr. Rabbani has since lost even more weight, is precariously close to death, and has
been denied assistance from those who control his ability to stay alive. Mr. Rabbani currently
has all of the conditions which would trigger medical intervention under the government’s
standard operating procedures. Counsel has direct evidence of emaciation; as of September 26,
2017, his weight was 97 lbs, or 28% below his ideal body weight. Id. ¶ 33. Already this was far
below the 15% drop that (under Respondents’ practice) previously called for intervention, and
his weight has only been dropping in the nearly three weeks since that time. Mr. Rabbani also
has signs of organ failure, having fallen down and lost muscle control on many occasions. Id.
He suffers from various high-risk physical conditions, including heart arrhythmia, long term
insomnia, hypertension, and serious chronic mental health issues. Id.
4. Status of Habeas Petition
Mr. Rabbani’s petition for a writ of habeas corpus has been pending in this Court since
2005. The Court has yet to hear the merits on the case, delayed in part by Mr. Rabbani’s poor
health and psychological impediments from years of detention with no end in sight. This Court
denied his motion for a preliminary injunction in 2014, and he has respected that ruling while
maintaining his hunger strike, mitigated where possible to avoid the extreme pain that would
otherwise be inflicted upon him if he resisted in full. For instance, occasionally he will walk to
his forced feedings instead of risking further injury through forcible cell extractions, and has

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periodically consumed a liquid nutrient in the past when his body was too fragile to handle the
aggressive insertion of the feeding tube. Id. ¶ 39.
In these circumstances, 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. Id. ¶ 48.
Mr. Rabbani is in no such position now. Based upon the representations made to him by
the SMO and relayed to counsel by Mr. Rabbani, he may very well be maimed, or even dead,9
very soon. His death, or repeated incidents of near-death, obviously violate his right to life, and
has and will impede his access to counsel and his ability to pursue his claims for a writ of habeas
corpus, as is his right.10 And, as is exceedingly evident, the government’s abdication of its
responsibility to provide medical care for those in its custody is a violation of the Fifth
Amendment’s proscription of the deprivation of life without due process of law, and the Eighth
Amendment’s bar on cruel and unusual punishment (to the extent that the Eight Amendment is
held not to apply because he has not been convicted, the bar on such punishment applies through
the Fifth Amendment in any case), which encompasses the deliberate indifference to Mr.
Rabbani’s need for timely and continued medical treatment.
9

“Serious medical problems begin at a weight loss of approximately 18% of initial body weight
in individuals who continue fasting. Starvation is life threatening when more than 30% of the
original body weight is lost.” Sondra S. Crosby, MD, Caroline M. Apovian, MD, & Michael A.
Grodin, MD, Hunger Strikes, Force-feeding, and Physicians’ Responsibilities, 298 JAMA 563
(2007) (footnotes omitted). He is now at starvation level.
10
To the extent this Court deems it appropriate, Petitioner is willing to amend his habeas petition
to include the latest abdication of the government obligations under law, but given the exigency
of the circumstances, seeks relief via motion instead.
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ARGUMENT
Mr. Rabbani is in grave danger. He does not wish to die, but rather seeks justice. He
does not wish to be force-fed under the gratuitously painful procedures used in Guantánamo.
However, the worst of all possible worlds is to face respondents’ latest coercive scheme: that he
should be allowed to starve to the point where he is half-dead, with exacerbated psychological
problems and long-term, irreversible physical damage, but then force-fed again to keep him
half-alive, permanently impaired, yet still in illegitimate, indefinite detention.
Held in Guantánamo, he is unable to compel the government to provide the requisite
medical care to prevent his death and the challenge to his confinement without judicial
intervention. The government’s abdication of its duty to care for Mr. Rabbani by providing
appropriate medical treatment, and to conduct the close monitoring necessary to be able to
ascertain when that treatment is urgently needed, violates his right to habeas by rendering him
incapable of participating in proceedings and meaningfully accessing his counsel by virtue of
delirium, psychosis, partial or full organ failure, and possibly death. He respectfully requests the
Court to issue a writ to alter the trajectory of the government’s plan to prevail by establishing
conditions resulting in the death of its opponent in this action, and in doing so, inflicting
egregious harm and letting him dwindle on the precipice of death only to yank him back to the
realm of the living, but just barely.
A. Habeas Is a Right, and the Courts Have the Power to Order Relief to Effectuate It
The Supreme Court has repeatedly recognized that Guantánamo detainees have the right
of habeas corpus, and are entitled to conditions and accommodations that allow them to invoke
that right effectively. Hamdi v. Rumsfeld, 542 U.S. 507, 539 (2004); Boumediene v. Bush, 553
U.S. 723, 779 (2008).

A prisoner’s access to courts must be “adequate, effective, and

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meaningful.” Omar v. Harvey, 514 F. Supp. 2d 74, 77 (D.D.C. 2007) (citing Bounds v.
Smith, 430 U.S. 817, 822 (1977)). “[Detainees] are entitled to present the facts surrounding their
confinement to the Court [and] the Court is authorized to craft the procedures necessary to make
this possible, in order that the Court might fully consider Petitioners’ challenge to their
detention.” Al Odah v. United States, 346 F. Supp. 2d 1, 7 (D.D.C. 2004). A detainee may
“challenge the conditions of his confinement in a petition for habeas corpus.” Aamer v. Obama,
742 F.3d 1023, 1032 (D.C. Cir. 2014). The SMO’s recent change of policy, with its consequent
impact on the conditions of his confinement, presents such a compelling circumstance for
challenge.
The Court may issue an order necessary to restore Mr. Rabbani to reasonable health and
ensure his ability to exercise his habeas right and participate in these proceedings. This authority
exists as incident to the Court’s habeas jurisdiction under 28 U.S.C. § 2241, and in the All Writs
Act’s grant of broad discretionary authority, through which a court may effectuate orders—
including injunctive relief—to preserve its habeas jurisdiction over detainee claims. 28 U.S.C. §
1651(a) (federal courts “may issue all writs necessary or appropriate in aid of their respective
jurisdictions”). Courts expressly recognize the Act’s application in the habeas context. The Act
accordingly permits a court to “enjoin almost any conduct which, left unchecked, would have . . .
the practical effect of diminishing the court’s power to bring the litigation to a natural
conclusion.” Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1102 (11th Cir. 2004) (quotation
omitted); see also Ala. Great S. Ry. Co. v. Thompson, 200 U.S. 206, 218 (1906) (federal courts
“may and should take such action as will defeat attempts to wrongfully deprive parties . . . of the
protection of their rights in those tribunals”).

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Courts have exercised their habeas jurisdiction by issuing whatever orders are necessary
to afford Guantánamo detainees meaningful access to justice, even in cases where petitions were
stayed indefinitely or had yet to be filed. In re Guantánamo Bay Detainee Continued Access to
Counsel, 892 F. Supp. 2d 8, 19 (D.D.C. 2012). The loss of a petitioner’s ability to participate in
his own action and communicate with counsel—for whatever reason—is irreparable harm, and
such loss infringes on his right to challenge his detention and compels the court to order
appropriate remedies. Al-Joudi v. Bush, 406 F. Supp. 2d 13, 20 (D.D.C. 2005). Affliction with a
severe medical condition constitutes interference with a detainee’s right to habeas corpus.
Husayn v. Gates, 588 F. Supp. 2d 7, 10 (D.D.C. 2008). “Unless Petitioners’ counsel can have
access to their clients, and know their true medical conditions . . . it is obvious that their ability to
present their claims to the Court will be irreparably compromised.” Id. Accordingly, the right to
habeas includes the right of counsel to ascertain, on their client’s behalf, whether “clients are in
such fragile physical condition that their future ability to communicate is in imminent danger”
and to demand immediate action to prevent irreparable impairment of the right to habeas. AlJoudi, 406 F. Supp. 2d at 21–22.
In preserving their jurisdiction and the detainees’ right to habeas, courts routinely grant
the relief sought here. They have ordered the production of medical records where the detainee’s
medical condition impaired his access and ability to participate in the proceedings. Abdallah v.
Bush, No. CIV.A. 08-1923 (GK), 2009 WL 2020774, at *1 (D.D.C. July 9, 2009); Tumani v.
Obama, 598 F. Supp. 2d 67, 70–71 (D.D.C. 2009), as well as evaluations by independent
medical examiners. In Al-Oshan v. Obama, 753 F. Supp. 2d 1, 6 (D.D.C. 2010), the court
ordered an examination by outside medical personnel when the petitioner was at 71% of his ideal
body weight. The court ordered the examination noting testimony that “such a low body weight

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impedes the attorney-client relationship” because of fatigue, severe abdominal pain, collapsing,
and mental and emotional consequences of extremely poor health. Id. In Zuhair v. Bush, 592 F.
Supp. 2d 16, 16–17 (D.D.C. 2008), the court granted petitioner’s request for immediate medical
relief and an independent medical examiner to evaluate the detainee in connection with forcefeedings. An order requiring an independent evaluation where the petitioner is alleged to be
near-death, and has informed counsel of first-hand communications in which the medical
director has expressed total indifference to the condition, is amply justified and a judicious use of
the Court’s authority.
B. Petitioner Is Entitled to Injunctive Relief Compelling Access to an Independent
Medical Evaluation
Injunctive relief is available in the court’s discretion, and where a plaintiff demonstrates:
“1) a substantial likelihood of success on the merits, 2) that [plaintiff] would suffer irreparable
injury if the injunction is not granted, 3) that any injunction would not substantially injure other
interested parties, and 4) that the public interest would be served by the injunction.” Al-Joudi,
406 F. Supp. 2d at 19 (citing Katz v. Georgetown Univ., 246 F.3d 685, 687–88 (D.C. Cir. 2001).
The threat of irreparable injury must be “real and imminent.” Id. In Al-Joudi, petitioners were
also detainees on a hunger strike, and their counsel sought injunctive relief with respect to
obtaining access to and medical information concerning their clients and the harm caused by
force-feeding, conducted in a particularly savage fashion as set forth elsewhere in this action.
The court found that the petitioners were entitled to advance notice of feedings and weekly
updates on the health of their clients. Petitioner should prevail here for the same reasons.
a. Petitioner is Substantially Likely to Prevail on the Merits
Petitioner is likely to prevail on the merits of his claim because it is rooted in the right of
all Guantánamo prisoners to have their habeas petitions heard in federal court. Boumediene, 553
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U.S. at 795. Numerous courts have ruled that to give meaning to this right, the petitioner must
be able to maintain a physical condition sufficient to participate, including staying alive. AlJoudi, 406 F. Supp. 2d at 20; Zuhair, 592 F. Supp. 2d at 17; Al-Oshan, 753 F. Supp. 2d at 5. Mr.
Rabbani has identical rights to those detainees who have brought their cases before the court
while suffering medical distress, and who were granted the relief to which they were plainly
entitled by law. Moreover, in this instance, there is a prima facie violation of the Eighth
Amendment, by the documented exhibition of “deliberate indifference to serious medical needs,”
particularly given the more demanding standard of care required for non-criminal detainees.
Estelle, 429 U.S. at 104; Campbell v. McGruder, 580 F.2d 521, 531 (D.C. Cir. 1978)
(“conditions of confinement that are likely to impair a [pre-trial] detainee’s mental or physical
health should be subjected to the closest scrutiny and can be justified only by the most
compelling necessity”); Washington v. Harper, 494 U.S. 210, 223 (1990) (quoting Turner, 482
U.S. at 89) (“[T]he proper standard for determining the validity of a prison regulation claimed to
infringe on an inmate’s constitutional rights is to ask whether the regulation is ‘reasonably
related to legitimate penological interests.’”).
b. Petitioner Will Face Irreparable Injury Without Relief
Injunctive relief is warranted when a detainee’s health is in imminent danger. Al-Joudi,
406 F. Supp. 2d at 20. Petitioner has long been in a precarious state of health on account of
being tortured by respondents; their dramatic changes to the administration of his medical care
have precipitated an astonishingly rapid further decline. Prior government policy set the trigger
for medical intervention in a hunger strike when a detainee reached 85% of his body weight. He
had lost nearly a quarter of his body weight before the SMO’s decision to terminate the program
of ensuring hunger strikers received the minimally necessary nourishment to prevent death or

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organ failure. Although counsel cannot know with any kind of precision the condition of Mr.
Rabbani now—particularly given that medical staff have ceased taking daily evaluations of his
weight and vital signs—what is apparent is that a prisoner is utterly powerless against his warden
within the prison walls, and has no power to obtain the requisite medical treatment in these
circumstances. The SMO’s comment that Mr. Rabbani’s dire condition was his “own choice”
makes it all the more apparent that he intends to wash his hands of the hunger strikers and their
attendant health issues, and indeed, aggravate them by withholding medical care.
Injunctive relief is justified even if the government actually provides health care. In AlJoudi, the government had represented that “Guantánamo personnel have policies and practices
in place for responding appropriately to hunger strikes such that no detainee’s life or health will
be endangered,” and contended that the court should stay out of it because no one had died yet.
Id. at 19. The court found this to be preposterous; “[i]t goes without saying that this Court need
not wait to issue injunctive relief until a detainee has died.” Id. at 20. For Mr. Rabbani, any
delay whatsoever brings him ever closer to total organ failure and further ravages a body already
damaged from years of torture and confinement, and weakened by his quest for justice. Action
must be taken, and quickly.
c. Relief Would Not Burden the Government
A grant of the injunctive relief would not injure or burden others—at the time the AlJoudi court granted compulsory medical monitoring and provision of medical records to counsel,
there were 26 hunger strikers; here counsel is aware of only five. 406 F. Supp. 2d at 22 (noting
that the logistical burden is “simply not substantial when weighed against the irreparable injury
Petitioners face”). Access to independent medical experts has been granted without prohibitively
burdening Guantánamo authorities or prison staff and there is no reason this case should be any

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different. See, e.g., Al-Oshan, 753 F. Supp. 2d at 2; Zuhair, 592 F. Supp. 2d at 17; Aamer v.
Obama, 58 F.Supp.3d 16, 17–18 (D.D.C. 2014).
Petitioner is requesting an independent evaluation by a non-military doctor, which is no
more burdensome than allowing any other visitor, such as counsel, to the detention facility to
meet with a detainee. And to the extent medical treatment is necessary, and the medical officers
at Guantánamo administer it, this is no more an imposition than the requirement to provide care
to prisoners of war. Mr. Rabbani’s status as a noncriminal enemy belligerent entitles him to
freedom from torture as well as cruel, degrading and inhumane treatment under the UN
Convention Against Torture. Petitioner is also entitled to adequate medical care under the Fifth,
Eighth, and Fourteenth Amendments to the U.S. Constitution. As noted above, medical neglect
alleged here violates the Eighth Amendment, and constitutes the “unnecessary and wanton
infliction of pain,” proscribed by the Eighth Amendment. Estelle, 429 U.S. at 104 (quoting
Gregg v. Georgia, 428 U.S. 153, 173 (1976)).

“This is true whether the indifference is

manifested by prison doctors in their response to the prisoner’s needs or by prison guards in
intentionally denying or delaying access to medical care or intentionally interfering with the
treatment once prescribed.” Id. at 104–05. There can be no undue imposition where the detainee
asks only for what the Constitution and international law entitles him to. Other cases have made
similar findings. Hamdan v. Rumsfeld, 548 U.S. 557, 624–25 (2006) (no undue burden in
requiring government to adhere to court-martial rules and Geneva Convention requirements for
trial of detainee); Zaid v. Bush, 596 F. Supp. 2d 11, 12 (D.D.C. 2009) (no “unbearable burden” in
requiring government to produce detainee statements in order to provide “meaningful habeas
hearings”).

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d. Injunctive Relief is in the Public Interest
Denying the relief sought here affirms the death sentence issued by the new SMO last
month, which is decidedly not in the public interest. “It can hardly serve either the national
security interests of this country or enhance its image throughout the world to contribute in any
way to the death of a detainee in its custody.” Al-Joudi, 406 F. Supp. 2d at 20. Additionally,
ensuring Mr. Rabbani’s capacity to participate in this proceeding ultimately supports the Court’s
continued ability to adjudicate the case, and avail himself of a right so important and dear to the
notion of justice that it is enshrined in the Constitution.
CONCLUSION
For the reasons set forth above, Petitioner respectfully requests entry of an order
providing for:
1.

Immediate disclosure of comprehensive daily reports on Ahmed Rabbani’s
physical and mental health. These reports shall be delivered to counsel at the
Secure Facility even if they contain purportedly classified information, with
redacted copies provided expeditiously thereafter.

2.

An independent evaluation to be performed as soon as practicable by a medical
examiner selected by Mr. Rabbani’s counsel.

3.

If that examiner finds that medical treatment is necessary and appropriate, the
order shall provide the examiner with the authority to provide it, and for the
cooperation of the medical officers at the Guantánamo detention facility.

4.

Immediate disclosure of Ahmed Rabbani’s physical and mental health records
since July 2017, including for each day since September 20, 2017. These
reports shall be delivered to counsel at the Secure Facility even if they contain

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purportedly classified information, with redacted copies provided expeditiously
thereafter.
5.

Immediate reversion to the application of their own procedures as they existed
prior to September 20, 2017, pending resolution of this motion.

6.

An accelerated briefing schedule and hearing on this motion.

Respectfully submitted,
/s/
Eric L. Lewis
LEWIS BAACH KAUFMANN
MIDDLEMISS PLLC
Eric L. Lewis (D.C. Bar #394643)
Tara J. Plochocki (D.C. Bar #989404)
1899 Pennsylvania Avenue, NW, Suite 600
Washington, DC 20006
(202) 833-8900
eric.lewis@lbkmlaw.com
tara.plochocki@lbkmlaw.com
REPRIEVE
Clive Stafford-Smith
Shelby Sullivan-Bennis
PO Box 3627
New York, NY 10163
(929) 376-8446
clive@reprieve.org.uk
shelby @reprieve.org
Counsel for Petitioner
Dated: October 16, 2017

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CERTIFICATE OF SERVICE
I hereby certify that on October 16, 2017, I filed and served the foregoing on ECF and by
e-mailing a copy to andrew.warden@usdoj.gov.

s/ Tara J. Plochocki

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