Rabbani v. Bush

Case l:05-cv-01607-RC.L Document 379 *SEALED* Filed 12/29/17 Page 1 of 24
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UNITED STATES DISITUCT COURT
FOR TriE DISTRICT OF GOLtJMBIA

AhmmedGhulamRabbani, §
§
Petitioner, §
§
V. §
§ No. l:0S-cv-0l607-RCL
Donald J.TRUMFyctal. §
• §
Respondents. §

Memorandum Opinion:
DenyingPetitioner's Emergency Motion for an Independent Medical Evaluation
and treatment and Medical Records

Summary

The petitioner, Ahmmed Ghulam Rabbani, is a detainee at the U.S. naval station at

Guantanamo Bay. He hasbeen onhunger strike forfour of thelast thirteen years. There is some

question astowhether ornot the petitioneriscurrently hunger striking,' but the Court will, for the
most part, assume that hishunger strike continues tothis day. Formuch of the tiniie during which

he was hunger striking, the petitioner was subjected to involuntary enteral feedings (force-

feedings). In September 2017, the new Senior Medical Officer (SMO) ofthe Joint Medical Group
(JMG) at Guantanamo Bay detennined that the petitioner no longer needed diese involuntary
feedings and ordered that they cease. The petitioner argues that thiscourse ofaction threatens his

life and consti^es deliberate indifference to his serious medical needs in violation ofhis Eighth

In its most recent filing, the Senior Medical Officer (SMO) at Ouantanamo Bay related to the Court that the petitioner
told him that ho (the petitioner) waa not on ahunger strike anymore, (BCF #376-1 ^lO). But neifter the petitioner
nor his counsel have confirmed or denied this representation.
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Amendment rightto be free from cruel and unusual punishment as set forth in Estelh v. Gamble,

429 U.S. 97 (1976).

The petitioner hasnow filed anemergency motion for a preliminary injunction seeking

thefollowing reliefunder eitherthedoctrine of Esidk andits progeny or pursuant to theAll Writs

Act,28U.S.C. § 1651(a):

(1) The production of his physical and mental records since July 2017;
(2) A medical evaluation to be performed by a medical examiner chosen, by the
petitioner'scounsel;
(3) An order directing that the petitioner's chosen medical examinerbe permitted to
provide the jpctitioner with any medical treatment the examiner deems necessary
and appropriate and that the medical staff at Guantanamo Bay facilitate that
• treatment;
(4) The production of daily reports about the petitioner's physical and mental health;
(5) An order requiring the respondents to follow procedures govemihg medical care
provided to hunger-striking detainees that thepetitioner alleges were inplace prior
to September 20, 2017—-i.e., that the medical staffat Guantanamo Bay resume
force-feeding the petitioner;
(6) An expedited briefing schedule.

Havingreviewed all ofthe briefings and exhibits submitted to it, the Court will DENY

the petitioner's motion in its entirety. While the Court finds that the petitioner has a serious

medical condition, the Court also finds that the petitioner isunlikely to be able to show that fhe
medical staff at Guantanamo has l)ccn deliberately indifferent to that condition. Therefore, his

deliberate-indifference claim does not support preliminary injunctivc relief. The Court alsofinds

that relief pursuant to the All Writs Act is inappropriate because the petitioner isnot likely to be
able to show tliat his life and health are in danger such thai this Court's jurisdiction is threatened.
Bnc-kground

The petitioner, Ahmmcd Ghulam Rabbani, is a detainee at the U.S. naval station at

Guantanamo Bay. He has been onhunger strike for four of the last thirteen years. There is some
question as to whether or not the petitioner is currently hunger striking, but tlie Court will, for the
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most part, assume that hishunger strike continues tothis day. Formuch of the time during which

he was hunger striking, the petitioner was subjected to involuntary enteral feedings (force-

feedings).

In September 2017,thenew SeniorMedical OfiOcer (SMC) of theJointMedical Group

(JMG) at Guantanamo Bay determined that the petitioner no longer needed these involuntary

feedings and ordered that they cease. Upto this point, the petitioner and the respondents largely

agree. But beyond this point, the petitioner and the respondents diverge drasticaliy^ oflering

wholly different accounts of what policies concerning hunger strikers are currently in place at

Guantanamo and of the cunent stateofthepetitioner's health.- So different oxe theseaccounts that

th6 Court will provide sepaihte summaries of them. '

L The Petitioner's Account

The petitioneralleges that, as of September 19, 2017, the new SMO at Guantanamo

enacted a new policy under which the medical staff would no longer provide any involuntary

enteral feedings to hunger strikers, leaving them with only the options of eating normal food or
starving todeath. Inaddition, the SMO ordered that the medical staffcease monitoring the hunger

strikers, leaving them without any medical care. The petitioner does not widito end his hunger
strike, but healso does not wish to die. Beyond that, thepetitioner clouns thatevenifhewanted

to end his hunger strike, he could not do so because he isentirely unable to eat nonnal food because
it would cause him to vomit and because he suffers from bleeding, indigestion, colon problems,
ulcers, and other ailments. As such, the petitioner asserts that the end ofinvoluntary feedings is,
for him, adeath sentence. He caimot eat, and so he must receive involuntary feedings or die.
The petitioner alleges that his weight as ofSeptember 19, 2017, was 103 pounds. By
September 26, he weighed a mere 97 pounds. He alleges that he has signs oforgan failure. He
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Legal Standards

I. Prellminai'y Injunctions

Apreliminary injunction is "an extraordinary remedy that may only be awarded upon
aclear showing that the plaintiffis entitled to such relief" (Winter v. Natural Res, Def, Council
inc., 555 U.S. 7,22 (2008)), "A plaintiffseeking apreliminary injunction must establish [1] that
he is hkely to succeed on tiie merits, [2] that he is likely to suffer irreparable ham in the absence
ofpreliminary relief, [3] that the balance ofequities tips in his favor, and [4] that an injunction is
in the public interest." (Id at 20). By far the most important ofthese factors is the first. (Aamer
V. Obama, 742 F.3d 1023, 1038 (D.C. Cir,2014)), Iftheplamtif&'petitioner cannot satisfy the first
factor and show alikelihood ofsuccess on the merits, then it is not even necessary to consider the
otherfactors—the preliminary injunction will be denied. (GreaterNew OrleansFairHons. Action
Or V. HUD, 639 F.3d 1078, 1088 (D.C. Cir. 2011}). .
Courts in the D.C. Circuit have distinguished betweenpreliminary injunctions thatseek
to maintain the status quo and preliminary injunctions that seek to alter the status quo.
Specifically, when apreliminary injunction that would change the status quo is sought, "the
moving party must meet ahigh 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." (S^'eis v. U.S. Foreign Claims SetllemerU Comm %950 F. Supp. 2d 44, 48 (D.D.C.
2013)),

U. Deliberate Indifference to the Serious Medical Needs of Detainees
In Estelle v. Gamble, the Supreme Court concluded "that deliberate indifference to
serious medical needs of prisoners con.stitute3 the unnecessary and wanton infliction of pain

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proscribed by the Eighth Amendment." (429 U.S. 97, 104 (internal quotations and citations

omitted)). The test for establishing that this standard has beenviolatedconsistsoftwo parts.

First, the petitioner must establish that his medical condition is "objectively,

sufficiently serious." (Farmer v. Bretman, 511 U.S. 825,834 (1994)). Such a medical condition

must be "a condition of urgency, one thatmay produce death, degeneration, or extreme pain."

(Nielsen v. Rabin, 746 F.3d 58,66 (2d Cir. 2014)(quoting Hathaway v. Coughlih, 37 F,3d63,66

(2dCir.l994))).

Second, the petitioner must establish that the medical officers had the requisite,

culpable state of mind—deliberate indifference. This deliberate-indifference state of mind

requires more thana mere showing of m^ical malpractice or neglect. (Esielle^ 429U.S. at 105-

06 ("[A] complaint that a physician has been negligent in diagnosing or treating a medical

condition does not state a valid claim of medical mistreatment under theEighth TVmendment.");

Brown v. District ofColumbia, 5H F.3d 1279,1283 (D.C, Cir. 2008)), Rather, it is equivalent to

"subjective recklessness as used inthecriminal law." (Farmer, 511 U.S. at 834,839 (1994)), As

such, flie detaining authority ortreating physician can violate thepetitioner's constitutional rights

"only ifheknows that [the petitioner] face[s] a substantial risk ofserious harm and disregards that

risk by failing to take reasonable measures to abate it." (Id. at 847). And finally, courts are less
likely to find.that there has been deliberate indifference to.a serious medical need when that

medical need isthe result oforexacerbated by the petitioner's voluntary decisions. (See Brown v.
Graham, No. 07-cv-1353,2010 WL 9428251 at *13 n.3l (N.D.N.Y. Mar. 30,2010) (finding that
the "fact that plaintiff risked undermining his health by conducting a voluntary hunger strike
undercuts his claim ofdeliberate indifference to serious medical needs" and listing other cases that
reached the same conclusion); Rodriguez v. Briley, 403 F.3d 952, 953 (7th Cir. 2005) (reasoning
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that a prisoner cannot be permitted to "engineer" an Eighth Amendment violation by >villingly

goingon hunger strikeand then blaminghis captorswhen the foreseeable medicalcomplications

arise)).

UL The AU Writs Act

The All Writs Act, 28 U.S.C. § 1651(a), grants to all courts created by Congress the

power to "issue all writs necessary or appropriate in aid of their respective jurisdictions and

agreeable to theusages andprinciples of law." To beclear, theAll Writs Actdoesnotitselfcreate

orexpand a court's jurisdiction, it only grants to a court power *'in aid of protecting the court's

existing jurisdiction. (Clmtofr v. Goldsmith, 526 U.S. 529,534-^36 (1999)). Butjust because a

writ may be legitimately "in aid of a fcourt's existing jurisdiction does not mean thatdid court

may issue thatwrit under theAllWrits Act. Rather, theAllWrits Actonlyauthorizes theissuwce

of writs that are "agreeable to the usages and principles of law," (28 U.S.C. § 1651(a)).

Determining whether a particular writ is"agreeable to theUsages and principles oflaw" requires

a court to examine the common law and other "usages and principles" that haveconstmitied the

issuance ofsuch writs "down through the years." (Jones v, Lilly, 37F.3d 964,968 (3d Cir. 1994);
Rawlins v. Kansas, 714 F.3d 1189, 1196 (10th Gin 2013)).

TheAllWrits Actisa non-preferred remedy. Writsissued undertheAct areconsidered

"extraordinary measures," soif there are adequate, altematiye remedies at law orother measures
that a court may take to resolve an issue without resorting to a writ, then a writ ought not be
granted, (See Goldsmith, 526 U.S. at 537* TTTCmiy. Dev. Corp. v. Barton, 569 F.2d 1351, 1359
(11th Cir. 1978)). Despite providing an extraordinary remedy, courts have expressly recognized
that the All Writs Act has a role to play in the habeas context. Accordingly, the Act permits a
court "to enjoin almost any conduct which, left unchecked, would have.,. the practical effect of
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diminishing the court's power to bring the litigation to a natural conclusion." (Klay t. United

Heahhgroup, Inc.,376 F.3d 1092,1102(11thCir. 2004) (internal quotation omitted); see abo Ala.

Greats. Ry. Co. v. Thompson, 200U.S. 206,218 (1906) (federal courts"may arid should takesuch

action aswill defeat attempts to wrongfully deprive parties... of theprotection of their rights" in

the federal courts)). Such concerns are especially acute when the harm to a court'sjurisdiction

overthe detainee mayarise from the deathor incapacitation of the detainee.

Analysis

I. The Petitioner Is Not Likely to Prevail on the Merits of His Claims Under Either
the "Deliberate IndlfTcrencc to Serious Medical Needs" Standard or the All
Writs Act.

A. Deliberate Indifference to Serious Medical Needs

Thepetitioner is unlikely to prevail onthe merits of showing that the medical staffat

Guantanamo has been deliberately indifferent tohis serious medical needs. The.Court finds that

although thepetitioner docs have a serious (though self-inflictcd) serious medical need, there is no

reliable evidence tosupport thecontention thatthe medical siaffhas been indifferent to that need,

deliberately or otherwise.

1. The Petitioner Has a Medical Condition that Is Objectively, Sufficiently
Serious.

First, the Court finds that the petitioner's weight loss, already low body weiglit, and

probable malnutrition (though mostly caused by his own hunger strike), in addition to possible,
luidiagnoscd comorbidities, constitute an objectively, sufficiently serious medical need. Though
the petitioner an'd the Government disagree as to almost every particular regarding the petitioner's
health (as described in detail above), the Court finds that tlie Government's "Supplemental

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thanit wasa fewdaysearlierwhentheSMO recommended thepetitionerfor involuntary feedings.

{Id. ^10). In addition, the petitioner is anemic, has abnormal electrolytes, and remains at risk of

malnutrition.^ {Id. T118-10). The SMO himself states that once the petitioner longer has a
medical indication for involunta^ enteial feeding, [the SMO] will request that tlie current

authorization for involuntary enteral feeding be revoked,^' implying that the petitioner'shealth is

still sufficiently at risk to justify involuntary feedmgs should he cease willingly to consume

nutrition. {Id. ^11). Andlastly, the SMO states that he is "concerned aboutthe possibility of an

underlying, incompletely differentiated niedical problem unrelated to his protest but possibly
contributing to his successful ability to lose weight" {Id ^12).- In light of the petitioner's

continued eligibility for involuntary feeding and the possibility of comorbiditieS, the Court

concludes that the petitioner does have an objectively, sufficiently serious medical condition as

contemplated by Estelle and its progeny.

2. The SMO and JMG at Guanlanamo Have Not Been Deliberately Indifferent
to the Petitioner's Serious Medical Needs.

Having established that he has a serious medical condition, the petitioner must now

showthatthosein chargeof his medical care at Guantanamo have beendeliberately indifferent to

his medical needs. This the petitioner fails to do.

The petitioner alleges that onSeptember 19,2017, the SMO had "ordered thatmedical

staffforego . .. long-standing policy and stop force-feeding the hunger strikers and cease the

^Concerning the risk ofmalnutrition, the SMO says that the petitioner "demonstrates physical signs ofmalnutrition
without biochemical evidence ofmalnutrition." (EOF #27$-1 ^11). But the SMO also notes that "some biochemical
markers [of malnutrition] are influenced by hydration status and can be *fhlsely normal.'" (/d ^8). Given the
petitioner's dehydration, then, the Court isnot willing torule cutmalnutrition. Tobeclear, the Court isnot questioning
themedicalJudgment of theSMO, who alsonotes thmthepetitioner bears someindications of malnutrition; theCourt
isonly saying that for purposes ofthe threshold determination ofwhether thorc ison objeotively, sufficiently serious
medical need, the Court takes the possibility ofa "false normal" seriously.
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mecUcal monitoring offlielr now rapidly decUning health." (ECF #363-1 at 2). As characterized
.* •

by the petitioner, this new policy was absolute^no more force'feedings—and demonstrated that
the SMO and JMG were "no longer interested in preserving their health, or even their lives,
regardless ofthe hunger strikers' wishes." (Jd at 7) This policy was enacted, according to the
petitioner, coerce him to stophis peaceful strike." (Id at 9). Even when he requested aforce-
feeding, the SMO refused it, stating that any harm he suffered as a result was his "own choice."
{Id at 7). The petitioner asserts that the JMG ceased to take his weight on adaily basis or to
provide medical observation andalso denied him nn^ical care generally.
The Government's response reveals a much more nuanced situation than, the
petiticiner's characterization.

The petitioner was one ofthe detainees whose status on the list was reviewed. In this
review, the SMO noted that the petitioner's weight had been relatively stable at around 102 pounds
for the past year (October 2016 - October 2017). Although this is significantly below the
petitioner's ideal weight of129-335 pounds, the SMO noted that 'Svhen adetainee has lived long
term in astate of undemutrition (low body weight), the body makes adjustments to live at that
weight and the weight alone Is no longer an indicator of malnourishment." (ECF #368-2 ^15).
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More important than the weight itself, then, are "[t]rends in the baseline weigjit (usual

bodyweight)," which is defined as "llie weight over the preceding 12 months " (Id), feentially,

the frame of reference for determining what is an acceptable weight for the detainee changes over

time. Therefore, it became muchless important that the petitioner's intake weight was 129pounds

and much more important that his weight had remained relatively stable for more than a year.

In that review, the SMO also noted that the petitioner had been observed eating solid

food on a daily basi.s (despite his claims of being on a hunger strike) and making smoothies for

himself. (Id. 1|I3). TheSMO estimated that thepetitioner's daily caloric intake was approximately

1200 kilocalories per day. (Id. TjlT), The SMO also noted that (contrary to the petitioner's

assertions) thepetitioner wasphysically andmentally active—climbing stairs; walking unassisted;

participating in recreational-time; engaging in conversation with tlie SMO, behavioral health unit

staff^ andotliers; etc, (Id. ^ 14,16-17).

Based on thepetitioner's stable weight, observed and estimated caloricintake, physical

and mental activity, and otherindicators, theSMO determined that involuntary feedings were no

longer necessary to prevent death or serious harm to the petitioner. (Id at 16-17). The SMO

found that "other than his low weight, [the petitioner did] not show any medical signs that would

support the continuation of enteral feeding" in September -2017. (ECF #368 at 15). The SMO

concluded that the petitioner was not malnourished and that he had no known medical condition

that even required daily monitoting. (Id). Therefore, the petitioner was removed from the list of

detainees approved for involuntary feedings. (ECF #368-2 16-17).
As such, the initial decision to stop force-feeding the petitioner was not made with

IndiiTerence to his health, but was rather an informed decision made by an attentive medical care
provider. The petitioner may not have liked that determination, but the petitioner's treatment
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preferences are largely irrelevant to this analysis. (Esielle^ 429 U.S. at 107 C'Butthe question

whether [colain] forms of treatment is indicated is a classic example of a matter for medical

judgment A medical decision not to order an X-ray, or like measures, does not represent cruel

and unusual punishment."); United States ex rel. Hyde v. McGinnis, 429 F.2d 864,867 (2d Cir.

1970)(finding that a prisonerhas no right to the specific"type or scope of medical care which he

personally desires")).

Also baseless are the petitionerLs claims that he was refused medical care generally.

According to the SMO, the.petitioner was, aflerhis removal ftom the list, visually examined on a

daily basis by tlie JMG and could receive physical examinations if he wanted. (ECF#368-1 ^14).

But the petitioner did not w^t physical examinations or any other medical care. In fact, the

petitioner actively refused all medical care in the period following his removal from the list,

including denial care, gastroenterology evaluations, and even the provision of vitamins. (ECF

#368-2 16,19). What the Court faces is a situation in which a detainee refuses to participatein

his own healthcare, turns down repeated offers of care, and then claims medical, neglect. The

petitionercannot artificiallymanufacturea deliberate indifference claim in this manner.

Further reinforcing the Courf s conclusion is the fact that, afler the petitioner filed his

motion,the JMGconducted a medicul examination of the petitioner. In that review, the JMGfound

no evidence that the physical issues enumerated in tho petitioner's counscTs affidavits existed at

the time. (ECF #368 at IT). The SMO also informed the Court that, per standard medical

procedures, the petitioner would continue to be examined and thai he would be reconsidered for

involuntary feeding if "his physical appearance combined willi his weight or other factors
suggested maln'ourishinent." (ECF #368-1 T|14). That is exactly what happened. When the
petitioner's weight dropped significantly the second month after his involuntary feedings stopped,
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he was reconsidered and rcapproved for involuntary feedings. (ECF #376 at 2). These am act the
actions ofacallous and indifferent medical corps. Rather, the JMQ has perfoimed as attentive and
responsible medical professionals should.

Finally, Ute Court turns to the SMO's "quip" that any harm befalling the petitioner
following Ute cessation of the involuntary feedings was the petitioner's "own choice." The
petitioner makes much of this statement in his briefs, arguing that it shows the deliberate
indifference with which the SMO and the JMG in general regard the petitioner's life and health.
TTie Court does not agree. The policy ofUte JMG is to approve adetainee for involuotatyfcedmgs
only when medically necessary to prevent deaUi or serious harm," (ECF. #368-21|I3), Implicit
In this standard is the rcalizaUon that there arc harms that can result from aHunger strike that do
•not rise to the level ofa risk ofdeath or serious harm. These we allow adetainee to suffer. Only
once ahunger striker is at risk of death or serious harm must the SMO and JMG intervene and
perform involuntaiy enteral feedings. When exactly tiiis timearrives and when it ends is amedical
determination requiring a"comprehensive, multi-feotor evaluation of the detainee's health" as
descnbcd above. (ECF #368 at 13). Detainees are never happy with the determination no matter
the result. Detainees have sued challetigiiig the determination that they Were at risk ofdeath or
serious harm. (Jam.,- v. Obama. 742 F.3d 1023 (D.C. Cir. 2014)). Detainees have sued
challenging the manner of force-feeding after adetermination. (M). And now adetainee sues
challenging the determination that he was not at rLsk ofdeath or serious harm. In light ofthis, the
Court interprels the SMO's statement not- to reflect deliberate indifference to the life and health of
the petitioner. Rather, the statement, ifindeed it was made, was more likely an acknowledgment
that our system tolerates acertain amount of suffering on the part of detainees who volimtaiily
bring it upon themselves.
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Havingconsidered all ofthe affidavitsand other evidencebefore it, the Court finds no

evidence that couldsupport a finding that the SMO and JMG have been deliberately indifferentto

the petitioHCT's serious medical needs. Instead,the Court finds that the SMO and JMG have been

remaricabiy attentive to the patient's needsand careful in their attemptsto balancethe petitioner's

right to engage in a hungerstrike withthe needto preserve the petitioner'slife. Forthesereasons,

the plaintiff is unlikely to show that he will succeed on the merits of his deliberate-indifference

claim.

B. The AH Writs Act

The petitioner's arg;ument concerning the All Writs Act is inseparably related to his

argument under the deliberate-indifTerence standsird. The petitioner argues' that the refusal of the

medical staff at Guantanamo to resume involuntary enteral feedings endangers his life and his

capacity to interact with his attorneys. If the petitioner dies, this Court will have obvious trouble

exercisingjurisdiction overhis habeas petition. Likewise, ifdiepetitioner's healthdegrades tothe

extent thatit "impedes theattorney-client relationship" because of fatigue, collapsing, and mental

and emotional instability, thenhis access andability to participate in habeas proceedings will be

impaired. (See Al-Oshan v. Obama, F. Supp. 2d 1,6 (D.D.C. 2010); Tumani v. Obama^ 598 F.

Supp. 2d 67, 70-71 (D.D.C. 2009)).

These arguments would be compelling if the Court, as a factual matter, actually

believed thatthe petitioner waslikely to die or become incapacitated in thenearfiiture. Butas the

Court discussed in great detail above, while thepetitioner has a serious medical condition, he is

also receiving excellent, attentive care. The medical staff at Guantanamo even resumed forced-

feedings briefly when the petitioner indicated that itwas necessary. Simply put, the Court has full
confidence that themedical staffat Guantanamo isdoing itsJob andthat, as a factual matter, the
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plaintiffs lifeand health are not so threatenedas to pose any threat to this Courtis jurisdiction over

him.

The Court also finds that the relief the petitioner requests is inappropriate given the

availabilityofcoursesofaction short ofan extraordinary writ that can protect die patient's life and

health. First and fortnnost, the petitioner can end bis hunger strike.^ Short ofthat, the petitioner

may continue his hunger strike, but stop refusing the other medical procedures that have been

offered to him (suchas the gastrcenterology evaluations that could help the JMGto discoverthe

source of his bloody stools). The pointis diatmany of therisksto the petitioner'slife andhealth

are the result of his own choices. Ifhe truly is concernedabout preserving this Court's jurisdiction

over his habeas petitibn, he is fiee to stop placing himself at risk. The'Court does not think it

approimate to find that a petitioner may voluntarily pursue a course of actionthat threatens his

own life and thenpetitionfor an extraordinary writ commanding someone else to stop him when

it looks like he mightsucceed. The medical staffat Quantanamo has demonstrated that it willnot

allow the petitioner to die or come to serious barm. The Court will afibrd to the petitioner no

greaterrelief in the face of his chosencourse ofaction.

C. Conclusion

Forthese reasons, theCourt finds thatthepetitioner is unlikely to succeed onthemerits

of either his deliberate-indifference claim or his claim under the All Writs Act. For tliis reason

alone the Court could denyhis motion for a preliminary injunction. But the Court will proceed to

analyze the other Winter factors for thoroughness. •

^As the Court has previously mentioned, the petitioner may have done so already, (ECF #376-1 ^10), but without
confirmafian from thepetitionerhimselfthe Courtwillnot assume thisto be true.
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n. The Mtioner Docs Not Face Irreparable Injuiy Without Reliet
The harm that the party pursuing apreiiminary injunction seeks to prevent may not be
speculative or merely possible. lUther, the moving party must establish that irreparable harm is
"likely in the absence ofan injunction." ((»7n/er. 555 U.S. at 22) (emphasis in original)). In this
me, evaluating whether the petitioner is likely to feoe ineparable harm without an injunction is
inseparably related to the analysis of the merits of the petitioner's claims. The harm that die
peaUoner alleges is the "imminentdanger" that die SMO's chosen course ofaction represents to
the petitioner's health. (ECF #363-1 at 16). As the Court has made clear, the policies and
procedures that Guantanamo personnel have in place are sufficient to avoid the catastrophic
consequences ofwhich the petitioner warns. Guantanamo perMiinel have not ceased
the.petidoner's health. Hiey have not refiised to perfonn involuntaiy feedings vdien diey have
found itnecessary. And the SMO's thorough evaluation offlte petitioner's health reveals that the
petitioner is "medically stable." (ECF #376-1 ^11). For these reasons, the Court finds that the
petitioner sfears ofdeath and "total organ fbilure" are overblown. (ECF ^363 at 1).
The petitioner's health is stable and likely to remain so. For that reasons the Court
fmds that the petitioner does not face arisk ofirreparable harm without injunctive relief.
III. The Balance ofthe Equities Does Not Favor Granting Injunctive Relief.
The third WinJer factor requires that the Court balance the equities ofthe case. (555
U.S. at 20). In this case, the balance ofthe equities does not favor the petitioner.
Ihe petitioner argues that allowing an independent medical evaluation by anon-
militarydoctor would pose no great burdenon the Oovemmait, The logistics ofthe visititselfare
easy to arrauge. and the requirement that the medical officers at Guantanamo administer any
treatments the non-military doctor may suggest is nothing more than "the requirement to provide
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care to prisoners of war." (ECF363-1 at 18). This assessment is incorrect. It is indeedeasy for a

non-military doctor to fly to Guantanamo. But requiring the medical officers at Guantanamo to

follow the orders of this supposedly independent doctor is much more than "the requirement to

providecareto prisoners of war"—it is a coup that subjects the medicaljudgment and authorityof

the JMG to whatever supposedly neutral physician the petitioner's counsel selects. The Court

agrees vrith theGovernment's characterization ofthepetitioner's requested reliefas"nothing short

of a full takeover of Petitioner's medical care by an expert of Petitioner's choosing, as well as

dictation byPetitipner of theprocedures at Guantanamo for dealingwitlihunger-striking detainees

and the requirement that JMG personnel conduct whatever medical procedures that Petitioner's

expert requests." (ECF 368at 29-30). This goes far beyond therequirement thattheUnited States

provide care to prisoners of war (or, more accurately, to detainees, because the petitioner is not

legally a prisoner of war). PLather, this is an attempt by the petitioner to receive thatto vidiich he

has no right, not just medical care, but "the type or scope of medical care which he personally

desires." {McGinnis, 429 F.2d at867). The burden the petitioner's requested reliefwould impose

on the Government, then, is much higher than the petitioner suggests.

TTie general upending of thechainof command amongthe medical decision-makers at

Guantanamo that the petitioner's requested relief would cause is not the only burden posed to the
Government in this case. Other portions of the petitioner's requested relief present their own
concerns. Of particular concern to the Court is the petitioner's request for the disclosiu-e of

comprehensive daily reports on the petitioner's physical and mental health, which the petitioner •
requests to be delivered immediately to counsel even if they contain classified (or potentially
classified) information. A request for a client's medical records is one thing. (See AUJoudi v.
406 F. sup, 2d 13, 20 (D.D.C. 2005) (ordering the production ofmedical records); ilusaytx
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V. GateSj 588 F. Supp. 2d 7, 10-11 (D.D.C. 2008) (same); Tumani^ 598 F. Supp. 2d at 69-71

(same)). But a request for comprehensive daily reports with no initial rcgand to the potentially

classified nature of their contents is another. Granting thisrelief would require the medical staff

at Guantanamo toexpend an inordinate amount oftime tending to a single detainee—and that to a

detainee who has a habit of willfully refusing medical examinations—^and would require the

Government torisk thedisclosure ofclassified information unnecessarily. Inthis case, the burden

ofcomplying with thepetitioner's requests ismuch higher thaawould be thecase ifthe petitioner

merely requested a routine disclosure ofhis medicalrecords to counsel.

Against this burden, the petitioner sets forth his constitutional rights to adequate

medical care and tobe free from the"unnecessary and wanton infliction of paia'* (EOF #363-1 at

18 (quoting Estelle, 429 U.S. at 104)). But as the Court has already explained, the petitioner is

unlikely tosucceed inshowing that the Government hasdeprived him ofthese constitutional rights.

The balance ofthe equities, then, istitis: onthe one hand we have,the heavy burden ofsupplanting

the authority of the medical officers at Guantanamo with the will of physicians selected by the

petitioner's counsel and the administrative burden of comprehensive daily examinatioiis and the

unnecessary disclosure of classified information; and on theother hand we have the petitioner's

health, which is closely monitored bytheJMG and isthreatened, if at all, bythe petitioner's own

choices, and the petitioner's constitutional rights, which he cannot show are being violated.
The equities inthis case, then, favor denying the injunction tliat the petitioner requests.
IV. Injunctive Relief is Not in the Public Interest.

The petitioner argues that itwould harm the national security interests and image ofthe
United States were he to starve to death. (ECF #363-1 at 19 {cixSxvgAi-Joiidi, 406 F. Supp. 2d at
20)). This statement is true on its face; the death ofadetainee in American custody resulting fiom
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medical neglect would look very bad and certainly would not be in the public interest But the

statement presupposes that the petitioner will—or at least is likely to—be permitted to die as a

result of his hunger strike while under the care of the JMQ. That is not true. The harms to the

United States's national securityinterestsand imageof which the pditioner warns willnot come

aboutbecause, as the Court has alreadyexplained, the petitioneris receiving competent carefrom

an attentive medical staff that is aware of the petitioner's medical needs and is not disposed to

allowthe petitioner to witherawayand.die underits watch. .

The JMG's policy of conducting involuntary enteral feedings "when medically

necessary to prevent- death or serious harm" or when the petitioner's "physical appearance

combined with hisweight or otherfactots suggestfs] malnourishnlent" remains in fiill force.' (ECF

#368 at 12,-16). And the SMO and the JMG have demonstrated that they takes this policy

seriously, having briefly resumed involuntary enteral feedings of the petitioner when he

demonstrated signs of malnutrition and having continued monitoring his weight and nutrition^

intake since that time. (ECF #376 at 1~2). In addition, the Court believes the GovenunenCs

representation thatthe petitioner is fiilly capable of eating solidfood (which he has been observed

doing) and of drinking smoothies and Ensure Plus should eating prove uncomfortable. Forthese

reasons, the Court finds the petitioner's characterization of the newSMO's medical policies and

determinations as a "death sentence" to be gross hyperbole and his proffered harms to the public
interest to bespeculative at best. (ECF #363-1 at 19).

While the harms to the public interest that the petitioner alleges are speculative, the
Court also finds that granting die petitioner's requested relief would harm the public interest by
creating a perverse incentive structure. The petitioner's arguments regarding the public interest
boil down to this: "Give me what Iwant orI'll hurt myself, maybe even kill myself, and that would
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look bad to the rest ofthe world." Such threats cannot be entertained. (Cf, Rodnguez,A^^V^6.
at 953 ("A prisoner cannot force the prison to change its rules by going on ahunger strike and
blaming the prison for his resulting loss ofweight. He cannot, in short, be permitted to engineer
an Eighth Amendment violation.") (internal citations omitted)). Encouraging self-harm among
inmates—at Guantanamo Bay or anywhere else—is not in the public interest. To do so would
threaten the capacity of detention officers to maintain order. Detention officers must have
flexibility to deal with situations such as the petitioners, flexibility sufficient to balance the
requirement ofpreserving the health ofthe petitioner with tlie need to maintain order. Subjecting
the SMO and JMG'S informed medical judgment to critical judicial oversight and the demands of
physiciaiis selected by detainees* lawyers does not allow for that fle^ubility,
Becau^ the harms to the public interest ofwhich the petitioner warns are speculative
and improbable and because granting the petitioner's motion would be detrimental to the public
interest in maintaining order and discouraging self-harm among detainees, the Court finds that thi.s
factor weighs against granting apreliminary injunction.
Conclusion

For these reasons, the Court will deny the petftioner's motion in its entirety.
A separate order shall issue.

SIGNED this day ofDecember, 2017.

jUCL.
HONOfiftABLE ROYCE LAMBERTH
tlNITED STATES DISTRICT JUDGE
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ooMTj^nto rnoTccrrED ruromui^Tiort—
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