Case 1:04-cv-02215-RMC Document 60 Filed 10/06/2006 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) OMAR DEGHAYES, et al., ) ) Petitioners, ) ) v. ) Civil Action No. 04-2215 (RMC) ) GEORGE W. BUSH, ) President of the United States, et al., ) ) Respondents. ) )

RESPONDENTS’ OPPOSITION TO PETITIONER SHAKER AAMER’S MOTION TO LIFT STAY AND FOR PRELIMINARY INJUNCTION

Respondents hereby oppose petitioner Shaker Aamer’s motion to lift the stay in this case and for a preliminary injunction (dkt. no. 58) (“Petr’s Memo.”), which seeks extraordinary court intervention in and governance of the conditions of confinement of petitioner at the United States

Naval Base at Guantanamo Bay, Cuba (“Guantanamo”). Petitioner’s motion claims that petitioner’s conditions of confinement are inhumane and a violation of Common Article 3 of the

Geneva Conventions. Petitioner requests that the Court lift the previous stay entered in this case and that the Court issue an injunction addressing petitioner’s detention conditions, including his removal from alleged “isolation.”

As explained below, however, petitioner’s conditions of confinement are not inhumane, nor do they constitute “isolation.” To the contrary, petitioner’s conditions of detention are consistent with the safe, secure, and humane treatment of all detainees at Guantanamo. There is no legitimate factual or legal basis for the extraordinary relief sought by petitioner, which, aside from ignoring the legitimate reasons supporting a continued stay in this case, seeks to inject the Case 1:04-cv-02215-RMC Document 60 Filed 10/06/2006 Page 2 of 25

Court improperly into a process of second-guessing and managing the Executive in the administration of the detention of enemy combatants, an essential matter of national defense.

Petitioner’s motion, therefore, should be denied.

ARGUMENT

I. THE COURT LACKS JURISDICTION OVER THIS ACTION AND, IN ANY EVENT, THE CASE SHOULD REMAIN STAYED, INCLUDING WITH RESPECT TO PETITIONER’S COMPLAINTS REGARDING HIS CONDITIONS OF CONFINEMENT

As an initial matter, petitioner’s request for an injunction concerning his conditions of confinement should be denied because the Detainee Treatment Act of 2005, Pub. L. No. 109-148, tit. X, 119 Stat. 2680 (“the Act”), vests exclusive jurisdiction over this case in the D.C. Circuit.

The Act, among other things, amends 28 U.S.C. § 2241 to eliminate court jurisdiction to consider habeas petitions and other claims by aliens held as enemy combatants at Guantanamo Bay, id.,

§ 1005(e)(1), and creates an exclusive review mechanism in the D.C. Circuit to address the validity of the detention of such aliens and final decisions of any military commissions, id.,

§ 1005(e)(2), (e)(3). Section 1005(e)(2) of the Act states that the D.C. Circuit “shall have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status

Review Tribunal that an alien is properly detained as an enemy combatant,” and it further specifies the scope and intensiveness of that review. While the Supreme Court in Hamdan v.

Rumsfeld, 548 U.S. , 126 S. Ct. 2749, 2762-69 (2006), held that § 1005(e)(1) of the Detainee

Treatment Act did not apply to habeas petitions pending prior to the enactment of the Act, it recognized that the exclusive review provisions of the Act did expressly apply to cases pending prior to enactment. Although the petitioner in Hamdan escaped the Act because his challenge

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did not involve a final decision of a military commission within the exclusive jurisdiction of the

Court of Appeals under § 1005(e)(3), the Court reserved the question of the effect of the exclusive review provisions of the Act on other cases, stating that “[t]here may be habeas cases that were pending in the lower courts at the time the DTA was enacted that do qualify as challenges to ‘final decision[s]’ within the meaning of subsection (e)(2) or (e)(3). We express no view about whether the DTA would require transfer of such an action to the District of Columbia

Circuit.” Hamdan, 126 S. Ct. at 2769, n.14. The above-captioned case is such a case, i.e., it challenges petitioner’s detention as an enemy combatant and thus his very designation as an enemy combatant through the Combatant Status Review Tribunal. Given the Act’s investment of exclusive review in the Court of Appeals, the District Court lacks jurisdiction over this case, for it is well-settled that an exclusive-review scheme, where applicable, precludes the exercise of jurisdiction under more general grants of jurisdiction, including habeas corpus. Cf., e.g.,

5 U.S.C. § 703 (“form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for . . . writs of . . . habeas corpus”); Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207-09 (1994) (“exclusive” jurisdiction under federal Mine Act precludes assertion of district court jurisdiction); FCC v. ITT

World Communications, Inc., 466 U.S. 463, 468 (1984) (Hobbs Act) (“The appropriate procedure for obtaining judicial review of the agency’s disposition of these issues was appeal to the Court of Appeals as provided by statute.”); Laing v. Ashcroft, 370 F.3d 994, 999-1000 (9th

Cir. 2004) (“§ 2241 is ordinarily reserved for instances in which no other judicial remedy is available”); Lopez v. Heinauer, 332 F.3d 507, 511 (8th Cir. 2003) (“Because judicial review was

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available . . . the district court was not authorized to hear this § 2241 habeas petition.”). See also

Telecommunications Research and Action Center v. FCC, 750 F.2d 70, 77 (D.C. Cir. 1984)

(“even where Congress has not expressly stated that statutory jurisdiction is ‘exclusive’ . . . a statute which vests jurisdiction in a particular court cuts off original jurisdiction in other courts in all cases covered by that statute”) (footnote omitted); id. at 75, 78-79 (request for relief in district court that might affect Court of Appeals’ future, exclusive jurisdiction is subject to the exclusive review of the Court of Appeals). Thus, the Supreme Court’s decision in Hamdan did not resolve the issue of whether this Court may exercise jurisdiction in this case in light of the Act, and entry of an injunction such as that requested by petitioner – addressing in a coercive fashion petitioner’s conditions of confinement – would require an assertion of jurisdiction and authority in this case inconsistent with the Act’s investment of exclusive jurisdiction in the Court of

Appeals. See also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (“Without jurisdiction [a] court cannot proceed at all in any cause.”); Ex parte McCardle, 74 U.S. (7 Wall.)

506, 514 (1869) (“Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”).

In any event, the effect of the Act on the Court’s jurisdiction is pending in the Court of

Appeals in Boumediene v. Bush, No. 05-5062, and Al Odah v. United States, No. 05-5064, which are appeals of the decisions of Judge Leon and Senior Judge Green, respectively, in certain other

Guantanamo detainee habeas cases.1 The pending appeals will also consider the substantive

1 In addition, new legislation, the Military Commissions Act of 2006, S.3930, 109th Cong. (2006) (“MCA”), has just been passed by Congress, and is awaiting signing by the President. The MCA amends 28 U.S.C. § 2241 to provide that “no court, justice, or judge shall have jurisdiction” to consider either (1) habeas petitions filed by aliens detained by the United States as enemy combatants, or (2) any other action “relating to any aspect of the

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rights available, if any, to detainees at Guantanamo under the Constitution and various statutes, as well as whether detainees have judicially enforceable rights under the Geneva Conventions.

Accordingly, at a minimum, a continued stay of proceedings in this case, see Deghayes v. Bush,

No. 04-CV-2215 (RMC), Minute Order (dkt. no. 7) (Feb. 22, 2005), including with respect to petitioner’s complaints regarding his conditions of confinement, is appropriate pending action by the Court of Appeals.

Indeed, on February 3, 2005, in response to a motion filed by respondents in the then- coordinated Guantanamo detainee cases, Judge Green certified for interlocutory appeal her

January 31, 2005 opinion and stayed proceedings in the eleven coordinated cases for all purposes pending the resolution of all appeals. Various petitioners in the eleven cases sought reconsideration of Judge Green’s stay order, arguing that the Court should permit factual development and proceedings regarding detainee living conditions to go forward, but Judge

Green denied the motion for reconsideration

in light of the substantial resources that would be expended and the significant burdens that would be incurred should this litigation go forward, and . . . [in] recognition that a reversal of the Court’s January 31, 2005 rulings would avoid the expenditure of such resources and incurrence of such burdens . . . .

See In re Guantanamo Detainee Cases, Order Denying Motion for Reconsideration of Order

Granting Stay Pending Appeal (Feb. 7, 2005). This Court entered its stay of this case just a few weeks later. See dkt. no. 7. Given the potential for the Court of Appeals’ ruling to moot or at detention, transfer, treatment, trial, or conditions of confinement” of such aliens, except for the exclusive review mechanism in the D.C. Circuit created under the Detainee Treatment Act for addressing the validity of the detention of such aliens. S.3930, § 7. Further, the new amendment to § 2241 takes effect on the date of enactment and applies specifically “to all cases, without exception, pending on or after the date of enactment which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention” of such aliens. Id.

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least significantly impact the legal bases for petitioner’s present motion, as well as the likelihood that any decision by this Court regarding petitioner’s right to challenge his confinement conditions at Guantanamo would have to be re-litigated or revisited once the Court of Appeals provides guidance on these legal issues and the need for the orderly resolution of the serious issues involved in the Guantanamo cases, and for the other reasons discussed infra, the Court should not consider petitioner’s challenge to his confinement conditions at Guantanamo at this time.

II. PETITIONER IS NOT ENTITLED TO A PRELIMINARY INJUNCTION REGARDING HIS CONDITIONS OF DETENTION

Petitioner’s motion should also be denied because petitioner fails to satisfy the standards for obtaining preliminary injunctive relief. It is well-established that a request for preliminary injunctive relief “is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520

U.S. 968, 972 (1997); Chaplaincy of Full Gospel Churches v. England, 454 F. 3d 290, 297 (D.C.

Cir. 2006); Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004). To prevail in a request for a preliminary injunction, a movant “must ‘demonstrate 1) a substantial likelihood of success on the merits, 2) that [he] would suffer irreparable injury if the injunction is not granted, 3) that an injunction would not substantially injure other interested parties, and 4) that the public interest would be furthered by the injunction.’” See Katz v. Georgetown Univ., 246 F.3d 685, 687-88

(D.C. Cir. 2001) (quoting CityFed Financial Corp. v. Office of Thrift Supervision, 58 F.3d 738,

746 (D.C. Cir. 1995)).

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The irreparable harm that must be shown to justify a preliminary injunction “must be both certain and great; it must be actual and not theoretical.” Wisconsin Gas Co. v. FERC, 758 F.2d

669, 674 (D.C. Cir. 1985). “Injunctive relief will not be granted against something merely feared as liable to occur at some indefinite time; the party seeking injunctive relief must show that the injury complained of is of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Id. (citations and internal quotation marks omitted; emphasis in original). Injunctions are not intended “to prevent injuries neither extant nor presently threatened, but only merely feared.” Comm. in Solidarity v. Sessions, 929 F.2d 742, 745-46

(D.C. Cir. 1991); see also Milk Indus. Found v. Glickman, 949 F. Supp. 2d 882, 897 (movant must show that the threatened injury is not merely “remote and speculative”).

A. PETITIONER FAILS TO ESTABLISH THAT HE FACES IMMINENT IRREPARABLE INJURY.

Petitioner has failed to carry his burden of establishing imminent irreparable injury, and his motion may be denied on that ground alone. See CityFed Financial Corp., 58 F.3d at 747

(failure to make showing of irreparable injury sufficient to deny preliminary injunction);

Chaplaincy, 454 F.3d at 297 (same); Wisconsin Gas Co., 758 F.2d at 674 (same).

Petitioner’s motion for preliminary injunction complains primarily that petitioner has been kept in “isolation” for approximately a year, denied human contact and fresh air and deprived of anything except the clothes on his back. See Petr’s Motion at 4-5. According to petitioner’s motion, petitioner suffers sleep deprivation due to lights that are never dimmed and is subjected to temperature extremes and regular, senseless beatings by guards. See id.; id.,

Katznelson Decl. ¶¶ 8-29. Petitioner also claims he has a plethora of medical problems, which

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he implies have not been attended to by Guantanamo authorities, and petitioner’s counsel assert that petitioner’s mental health is degenerating. See Petr’s Motion at 5. The facts, however, tell a different story.

Contrary to petitioner’s suggestions, the mission of the military authorities operating the

Guantanamo detention center is the safe, secure, and humane treatment of all detainees at

Guantanamo, including petitioner. See Declaration of Colonel Wade F. Dennis ¶ 2 (attached as

Exhibit 1) (“Dennis Decl.”).2 Petitioner resides in a cell in Camp Echo, not as any kind of punitive measure – indeed, detention in Camp Echo is not punitive – but based solely on appropriate detention considerations, including his potential influence upon various elements of the detainee population residing in other detention areas. Id. ¶ 8. Further, petitioner’s primary contention, that is, that his detention in Camp Echo equates to “isolation” is incorrect. Petitioner is not isolated from human contact; indeed, there are no “isolation” or solitary confinement detention areas at JTF-Guantanamo. Id. ¶ 6. Petitioner has regular contact at least with guards, medical corpsmen, and other personnel involved in the delivery of services to detainees. Id.

Furthermore, Mr. Aamer is permitted the opportunity for recreation outside his cell for two-hours each day and is permitted to participate in joint recreation sessions with other detainees held in

Camp Echo where petitioner resides. Id. When he chooses to participate in joint recreation sessions, guards have frequently seen petitioner engaged in conversation with the other detainees.

Id.

2 Colonel Dennis serves as the Commander of the Joint Detention Group for the Joint Task Force-Guantanamo (“JTF-Guantanamo”), and is responsible for detention operations for JTF-Guantanamo. Dennis Decl. ¶ 1.

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In this vein, while petitioner’s motion contends that he “has not been outside since June

13, 2006,” and that he has “not seen the sun” for over two months, see Petr’s Motion, Katznelson

Decl. ¶¶ 19, 29, any decision not to go outside or see the sun or interact with others during the recreation opportunities offered him each day has been his own. Dennis Decl. ¶ 5. Since June 6,

2006, Mr. Aamer has periodically refused to take advantage of the daily outside recreation period offered him. Id. In fact, since mid-May 2006, Mr. Aamer has refused to leave his cell for outdoor recreation some 51 times. Id. While petitioner is offered the opportunity for outdoor recreation each day, no Guantanamo detainee is ever forced to take recreation. Id. Furthermore, the exterior door to the building containing petitioner’s cell is opened during the day to circulate fresh air into his cell, even when he chooses not to go outside. See id. Accordingly, petitioner’s allegations of isolation from others and deprivation of the ability to go outdoors or get fresh air either are untrue or are of petitioner’s own choice and making. They cannot support a finding of irreparable harm. See Al Odah v. United States, 406 F. Supp. 2d 37, 44 (D.D.C. 2005) (Kollar-

Kotelly, J.) (rejecting allegation of irreparable harm as justifying injunction where harm – related to a hunger strike – was being caused not by government’s actions but by detainee’s own actions).

Furthermore, contrary to the import of his motion, petitioner has not been deprived of the necessities of life. In fact, in his cell in Camp Echo, petitioner has a sink, a toilet, and a sleeping bunk. He is provided with basic items issued to all detainees, including a Koran; a blanket in the winter months, and a sheet at other times of the year, during sleeping hours; hygiene items, including a toothbrush, toothpaste, soap, and towel; clothing items (pants, shirt, and

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undergarments); and flip-flops.3 Dennis Decl. ¶ 3. Furthermore, he receives opportunities to maintain adequate personal hygiene, including a 10-minute daily shower time. Id. ¶¶ 5, 9(e).

Furthermore, as with others in the Guantanamo general detainee population, when not in disciplinary status,4 Mr. Aamer is also provided with “comfort items” based upon his compliance with camp rules, consistent with Guantanamo’s system for promoting detainee discipline. Id.

¶ 4. Such items include access to library books from the detainee library, a prayer rug, prayer beads, playing cards, a cup, and a prayer cap. Id. He also receives for his bunk a mattress that is

3-½ inches thick, the same size mattress used by Navy sailors aboard U.S. warships at sea.5 Id.

¶¶ 9(a), 12.

Thus, petitioner’s assertions that he is kept in “isolation” and deprived of human necessities are counter-factual. Petitioner furthermore engages in a number of other misleading distortions or outright storytelling. For example, he claims that his current cell was “filthy,” with a “moldy” ceiling and “stained walls” when he moved in, requiring him to spend five hours scrubbing the cell. See Petr’s Motion, Katznelson Decl. ¶ 16. In reality, it is standard practice for JTF-Guantanamo personnel to clean a cell before a detainee moves in. Dennis Decl. ¶ 7. A detainee, however, is permitted to further clean his cell if he wishes, and cleaning materials are provided to the detainee upon request, within reason. Id.

3 These items are available at all hours; however, if misused, an item will be removed from a detainee’s cell. Dennis Decl. ¶ 3.

4 Mr. Aamer is not currently in disciplinary status. Dennis Decl. ¶ 4.

5 When a detainee in petitioner’s circumstances is placed in disciplinary status, the thick mattress is replaced with a one-inch thick “iso-mat.” Dennis Decl. ¶¶ 9(a), 12.

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Petitioner also attempts to give the impression that he has been needlessly and repeatedly beaten. See Petr’s Motion, Katznelson Decl. ¶¶ 10-14. In fact, only two physical engagements, not five, occurred during the time frame petitioner complains about, and both of those incidents were in response to petitioner’s unwillingness either to permit collection of standard biometric data (such as fingerprints) or to hand over socks that were being confiscated by authorities in the hours following the apparent suicides of three other detainees by hanging. See Dennis Decl.

¶¶ 10-11. Aside from that fact that a series of historical allegations such as these manifestly does not establish an entitlement to forward-looking injunctive relief such as petitioner seeks, see City of Los Angeles v. Lyons, 461 U.S. 95, 105, 110 (1982); O.K. v. Bush, 377 F. Supp. 2d 102, 113-

14 (D.D.C. 2005) (Bates, J.), these incidents were not brutalizations of petitioner, but rather

Guantanamo’s use of the minimum force required to ensure petitioner’s compliance with legitimate directives. See Dennis Decl. ¶¶ 10-11.

Petitioner also claims that for some period of days after June 13, 2006, he was given the thick mattress described above during a visit by the International Committee for the Red Cross

(“ICRC”), but after the visit, the mattress was taken away, see Petr’s Motion, Katznelson Decl.

¶ 17, implying that he was given the thicker mattress in order to mislead or deceive the ICRC in some fashion. In fact, however, petitioner was in disciplinary status between June 1- 19, 2006, and during that time he would have been permitted the one-inch thick iso-mat, but not the 3-½- inch-thick foam mattress / comfort item described earlier. Dennis Decl. ¶¶ 9(a), 12. In any

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event, the type of mattress provided a detainee is not dependent upon any visit by the ICRC, but rather upon a detainee’s medical and disciplinary issues.6 Id. ¶ 12.

Petitioner also claims that he suffers from a number of medical problems, and seeks to give the impression that the medical staff is ignoring them. As explained in the Declaration of the Joint Task Force Surgeon for Joint Task Force–Guantanamo Bay, Cuba, Captain Ronald L.

Sollock – the U.S Navy physician responsible for medical care provided to all civilian and military personnel living at Guantanamo Bay and who oversees the operation of the detention hospital that provides medical care to the detainees there – petitioner has received appropriately attentive medical care for his complaints and problems. See Exhibit 2 (“Sollock Decl.”).7

6 As for petitioner’s complaints about the temperature and lighting in his cell, as indicated in the declaration of Colonel Dennis, petitioner is able to request changes to the temperature in his cell; the insinuation that petitioner is subjected to temperature extremes due to guard misconduct is disputed. See Dennis Decl. ¶ 9(b). Further, the lights in petitioner’s cell are in fact dimmed at appropriate times, though other lights outside his cell are left on to ensure that a security camera in the cell can function. See id. ¶ 9(c).

7 As noted by Dr. Sollock, Guantanamo provides extensive medical care facilities and resources for detainees. The detention hospital at Guantanamo provides an 20-bed facility with a hospital medical staff of approximately 100, including five medical doctors, a physician’s assistant, nurses, corpsman, various technicians (laboratory, radiology, pharmacy, operating room, respiratory, physical therapy), and administrative staff. Sollock Decl. ¶ 3. All incoming detainees are given a complete physical examination. Id. ¶ 4. Detainees continue to receive medical care, the quality of which is comparable to that provided to active duty military members, throughout their detention. Id. ¶¶ 4-5, 7. Medical issues identified in initial physical examinations, or subsequently, are followed by medical staff. Id. ¶ 4. A detainee can request medical care not only by notifying guards, who make rounds on the cellblocks multiple times daily, but also by directly approaching medical personnel who make rounds on the cellblocks every day. Id. In addition to following up on detainee requests, the medical staff investigates any medical issues observed by guards or other staff. Id. The availability of this medical care has led to thousands of out-patient contacts between detainees and medical staff, followed by in-patient treatment and care as needed. See id.

Detainees have been treated for a variety of medical conditions, including hepatitis, heart ailments, hypertension, combat wounds, diabetes, tuberculosis, appendicitis, inguinal hernia,

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The Guantanamo medical staff has responded to a number of medical complaints by petitioner over the past 12 to 15 months, including with respect to asthma, leg swelling or edema, ankle and knee pain, constipation, and stomach pains. See Sollock Decl. ¶ 9. With respect to many of these complaints, despite Guantanamo’s attempts, petitioner has refused examinations or recommended x-rays, orthopedic consults, and medications. See id. ¶¶ 9(a)-(d), (g)-(h), 11.

Guantanamo also has performed extensive testing in response to petitioner’s complaints of

“kidney pain,” when petitioner has permitted it, with results found to be normal. See id. ¶ 9(e).

In response to petitioner’s complaints of tinnitus symptoms (ringing in the ears), the Guantanamo staff initially removed petitioner’s impacted ear wax and then provided audiology consultations and audiograms, as well as an examination by an ear, nose, and throat specialist, though petitioner has refused the most recently scheduled audiogram. See id. Furthermore, petitioner was recently provided eyeglasses, but refused to accept them because they were bifocals. Id.

¶ 11. Petitioner is being given an additional optometry consultation in an attempt to address his concerns. Id.

In addition, as a result of assertions of petitioner’s counsel regarding petitioner’s mental health condition, petitioner was evaluated by a Guantanamo Behavioral Health Services (“BHS”) psychologist on September 22, 2006, even though petitioner had not previously been diagnosed with any mental health condition or shown signs of mania or hysteria, despite having been seen leishmaniasis, malaria, and malnutrition, and have been provided prescription eyeglasses and prosthetic limbs. Id. ¶ 6. The medical staff at Guantanamo has performed over 290 surgical procedures, some as advanced as coronary artery stent replacement, on detainees since January 2002. Id. ¶ 8. When necessary, detainees are transferred to the Naval Base Hospital at Guantanamo to receive types of care not available at the detention hospital, and medical specialists are flown in from outside Guantanamo in appropriate cases. Id. ¶ 5. Thus, the provision of health care for Guantanamo detainees is comprehensive.

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by BHS staff during a previous hunger strike as part of routine protocol. Id. ¶ 13. The

September 22 examination, however, revealed no symptoms of mental disorder. Id.

Accordingly, far from neglecting petitioner’s health, Guantanamo medical personnel have provided and are providing petitioner with attentive medical care.

As illustrated above, the story petitioner has conveyed to his counsel, compounded with counsel’s own embellishments, is refuted by the detailed declarations provided by those responsible for his care and detention at Guantanamo. Petitioner’s inaccurate characterization of the nature of his detention and the care provided him by Guantanamo authorities fails to establish an imminent threat of irreparable harm and cannot justify the Court’s intervention into the military’s administration of the Guantanamo detentions, including that of petitioner. Petitioner’s motion for preliminary injunction, therefore, should be denied.

B. PETITIONER’S MOTION IS NOT LIKELY TO SUCCEED ON THE MERITS BECAUSE THERE IS NO ADEQUATE LEGAL BASIS FOR THE RELIEF REQUESTED.

In addition to lacking an appropriate factual basis to justify preliminary injunctive relief, petitioner’s motion lacks an adequate legal basis for the requested intervention into petitioner’s detention conditions. The only legal argument advanced by petitioner in support of his request for a preliminary injunction is that he is not being treated humanely contrary to Common Article

3 of the Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6

U.S.T. 3316, which, petitioner argues, the Supreme Court held in Hamdan applies to detainees such as petitioner. See Petr’s Motion at 2-3, 6. Thus, petitioner claims, in essence, that

Hamdan’s holding regarding Common Article 3 also means that Common Article 3 is judicially enforceable by detainees.

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Hamdan, however, did not hold that any aspect of the Geneva Conventions were, in and of themselves, judicially enforceable by individuals; rather, it concluded that the petitioner in

Hamdan could invoke Common Article 3, not because the Conventions provided petitioner with enforceable rights, but because Article 3 was incorporated into a provision of the Uniform Code of Military Justice governing the military commission at issue in that case. See Hamdan, 126 S.

Ct. 2749, 2794 (2006). With respect to judicial enforceability of the Conventions generally, the

Supreme Court did not disturb the venerable rule that treaties are presumed not to create rights judicially enforceable by private parties. See, e.g., Head Money Cases, 112 U.S. 580, 597-98

(1884); Holmes v. Laird, 459 F.2d 1211, 1220-22 (D.C. Cir. 1972). Nor did Hamdan disturb the more specific statement in Johnson v. Eisentrager, 339 U.S. 763 (1950), that the Geneva

Conventions of 1929 were not judicially enforceable by private parties. See id. at 789 n.14 (“It is

. . . the obvious scheme of the Agreement that responsibility for observance and enforcement of these rights [under the Geneva Convention] is upon political and military authorities. Rights of alien enemies are vindicated under it only through protests and intervention of protecting powers as the rights of our citizens against foreign governments are vindicated only by Presidential intervention.”). Nor did Hamdan suggest that the (former) Geneva Conventions of 1929 and the

(present) Geneva Conventions of 1949 are meaningfully distinguishable for present purposes.

See Hamdan, 415 F.3d 33, 40 (D.C. Cir. 2005) (“[T]he 1949 Geneva Convention does not confer upon [a detainee] a right to enforce its provisions in court.”). To the contrary, the Supreme Court in Hamdan expressly “assume[d]” that “‘the obvious scheme’ of the 1949 Conventions is identical in all relevant respects to that of the 1929 Convention.” 126 S. Ct. at 2794. Moreover, the Court further “assume[d]” that this enforcement “scheme would, absent some other provision

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of law, preclude Hamdan’s invocation of the Convention’s provisions as an independent source of law binding the Government’s actions and furnishing petitioner with any enforceable right.”

Id. Given those express assumptions, nothing in Hamdan undermines the rule that treaties are presumed not to create rights judicially enforceable by private parties.8 Petitioner’s attempt to obtain enforcement of his view of Common Article 3, therefore, should be rejected.9

Petitioner also cannot demonstrate a likelihood of success based on other potential sources of law. Neither the decision of Judge Leon in Boumediene nor of Judge Green in In re

Guantanamo Detainee Cases authorized conditions of confinement claims or decided what legal standard should govern them. Indeed, Judge Leon dismissed Boumediene in its entirety, and, as noted supra, Judge Green stayed proceedings, including with respect to conditions of confinement claims. In circumstances arising with respect to a challenge related to allegedly inadequate medical care of a Guantanamo detainee, another Judge of this Court has stated:

Although petitioner does not assert a constitutional violation (or any other violation of a substantive legal right) in the present motion, the issue of a dereliction of medical care for a person detained by the government usually arises in the context of constitutional challenges to prison conditions. The Supreme Court has emphasized on several occasions that a claim of deficient medical care will not be cognizable under the Constitution unless a prisoner can show a level of dereliction so grave that it amounts to a ‘‘deliberate indifference’’ to the

8 Furthermore, the Court in Hamdan explicitly limited its substantive treaty holding to a provision in Common Article 3 addressed to “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all of the judicial guarantees which are recognized as indispensable by civilized peoples.” 6 U.S.T. at 3318. On its face, that provision addresses only the imposition of criminal punishment as opposed to any other aspect of detention of enemy combatants – a question the Court expressly declined to consider, see 126 S. Ct. at 2798.

9 In addition, the new MCA legislation, passed by Congress and awaiting the President’s signature, expressly precludes individuals from invoking the Geneva Conventions “as a source of rights in any court of the United States” in which the government is a party. See S.3930, § 5.

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prisoner’s ‘‘serious medical needs.’’ Neitzke v. Williams, 490 U.S. 319, 321, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989); Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). A prisoner challenging his medical care must be prepared to show that officials ‘‘were knowingly and unreasonably disregarding an objectively intolerable risk of harm to the prisoners’ health or safety.’’ Scott v. District of Columbia, 139 F.3d 940, 943 (D.C. Cir.1998) (quoting Farmer v. Brennan, 511 U.S. 825, 846, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994)).

. . .

Petitioners do not explain why these principles should be diluted in the context of military detention centers . . . .

O.K. v. Bush, 344 F. Supp. 2d 44, 61 (D.D.C. 2004) (Bates, J.) (footnote omitted). Judge Bates further noted,

The ‘‘deliberate indifference’’ standard was developed to assess the claims of prisoners under the Eighth Amendment. Estelle, 429 U.S. at 104, 97 S. Ct. 285. The standard of care for a pre-trial detainee who has not yet been convicted, however, is governed by the Due Process Clause of the Fifth and Fourteenth Amendments rather than by the Eighth Amendment. See, e.g., Hill v. Nicodemus, 979 F.2d 987, 990 (4th Cir. 1992). Although the Supreme Court has said that the due process rights of pre-trial detainees are ‘‘at least as great’’ as the Eighth Amendment rights of a convicted prisoner, see City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244, 103 S. Ct. 2979, 77 L. Ed. 2d 605 (1983), most courts have applied the ‘‘deliberate indifference’’ standard in both settings, see Hill, 979 F.2d at 991–92 (collecting cases). Without concluding that the ‘‘deliberate indifference’’ doctrine is the correct standard for any constitutional claims that petitioners might raise in this case, the Court will draw on this well developed body of law to guide its analysis on this emergency motion.

See O.K., 344 F. Supp. at 61 n.23. See also Al Odah v. United States, 406 F. Supp. 2d 37, 42-44

(D.D.C. 2005) (Kollar-Kotelly, J.) (applying “deliberate indifference” standard in rejecting request for Court intervention into medical care provided hunger-striking Guantanamo detainees).

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This standard is applicable both to claims alleging inadequate medical care as well as challenges to general conditions of confinement, such as inadequate food, clothing, and cell temperature. See Wilson v. Seiter, 501 U.S. 294, 303 (1991) (“Whether one characterizes the treatment received by the prisoner as inhumane conditions of confinement, failure to attend to his medical needs, or a combination of both, it is appropriate to apply the ‘deliberate indifference’ standard articulated in Estelle [v. Gamble, 429 U.S. 97 (1976)]”). As indicated by Judge Bates in

O.K., the two-prong deliberate indifference test requires the moving party to establish first that

“the deprivation alleged must be, objectively, sufficiently serious, . . . a prison official’s act or omission must result in the denial of the minimal civilized measure of life’s necessities”; second, a prison official must have a “sufficiently culpable state of mind” – “one of deliberate indifference to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotations omitted); see also id. at 832 (applying the standard in consideration of duty to maintain “humane conditions of confinement,” including adequate food, clothing, shelter, and medical care). Furthermore, the standard calls for deference to the judgment of prison administrators. See, e.g., Bell v. Wolfish, 441 U.S. 520, 548, 562 (1979) (explaining that the operation of even domestic “correctional facilities is peculiarly the province of the Legislative and Executive Branches of our Government, not the Judicial,” and cautioning lower courts to avoid becoming “enmeshed in the minutiae of prison operations”); Inmates of Occoquan v.

Barry, 844 F.2d 828, 841(D.C. Cir. 1988) (noting that “courts are not to be in the business of running prisons” and that “questions of prison administration are to be left to the discretion of prison administrators). See also Sept. 28, 2005 Memorandum and Order at 3-4 (Deghayes v.

Bush, dkt. no. 28) (Oberdorfer, J.) (rejecting preliminary injunction motion related to conditions

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and hunger strike care; relying on standard applied by Judge Bates in O.K. v. Bush, 377 F. Supp.

2d 102 (D.D.C. 2005), that “[a]bsent a persuasive claim that the conditions of confinement at

Guantanamo are so severe that they present an imminent threat to petitioner’s health, the Court will not insert itself into the day-to-day operations of Guantanamo”).

Of course, such an analysis assumes that Guantanamo detainees possess constitutional rights and that petitioner’s case is properly before the Court. As to the latter point, as explained supra, the Court lacks jurisdiction over this case because the Detainee Treatment Act of 2005 vests exclusive jurisdiction over this action in the Court of Appeals.

And as to the former point, no decision of the Court, including the decisions of Judges

Green and Leon in the Guantanamo detainee cases currently pending before the Court of

Appeals, has held that Guantanamo detainees are possessed of constitutional rights with respect to conditions of confinement claims. Indeed, Judge Leon in Khalid v. Bush, Boumediene v. Bush,

355 F. Supp. 2d 311 (D.D.C. 2005), found that aliens held at Guantanamo, that is, outside the sovereign territory of the United States, are not possessed of any constitutional rights, id. at 320-

21, and concluded that “no viable legal theory exists” by which the Court “could issue a writ of habeas corpus” in favor of the Guantanamo detainees, id. at 314. Judge Leon also noted that challenges to the conditions of confinement did not support the issuance of a writ of habeas corpus because such claims, even if true, would not render the custody itself unlawful. Id. at

324-25. Judge Leon explained that separation of powers principles prevent the judiciary from scrutinizing the conditions of the aliens’ detention because such matters are the province of the

Executive and Legislative branches. Id. at 328.

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In addition, Judge Green in In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 464

(D.D.C. 2005), while concluding that “the detainees at Guantanamo Bay have the fundamental right to due process of law under the Fifth Amendment” to challenge the legality of their detention through petitions for writs of habeas corpus, did not address whether alien enemy combatants have a constitutional basis to challenge their conditions of confinement, nor did her decision authorize such claims. Judge Green’s analysis of the constitutional issues was limited solely to whether Guantanamo detainees are “entitled to due process under the Fifth

Amendment” to challenge “the government’s determinations that they are ‘enemy combatants.’”

See In re Guantanamo, 355 F. Supp.2d at 465. The Court’s focus on the legality of the detention

– as opposed to the legality of the conditions of confinement – is reflected throughout the opinion. See id. at 464 (“In sum, there can be no question that the Fifth Amendment right asserted by the Guantanamo detainees in this litigation – the right not to be deprived of liberty without due process of law – is one of the most fundamental rights recognized by the U.S.

Constitution.”); id. at 476 (“[T]he detainee is entitled to fully litigate the factual basis for his detention in these habeas proceedings and to have a fair opportunity to prove that he is being detained on improper grounds.”); id. at 477 (stating that a detainee must be provided with a “fair opportunity to challenge . . . the legality of his detention as an ‘enemy combatant’”). Put simply,

Judge Green only addressed the scope of petitioners’ Fifth Amendment rights to challenge the lawfulness of the procedures used to confirm their enemy combatant status; she did not make any

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findings or conclusions with respect to the scope of any Fifth Amendment right to challenge the conditions of their confinement.10

Even assuming that petitioner is entitled to constitutional protections under the Fifth

Amendment or otherwise, or to judicial enforcement of Common Article 3, (points respondents contest), petitioner still has failed to demonstrate that his challenge to his detention conditions is likely to succeed.11 Petitioner has failed to establish that his conditions fail of “the minimal

10 The distinction between legal challenges to the fact or duration of custody and legal challenges to the conditions of confinement is well-established. See Preiser v. Rodriguez, 411 U.S. 475, 498 (1973). This distinction is based in part on the different legal bases underlying these types of challenges. On the one hand, challenges to the procedures used to determine the lawfulness of custody invoke the procedural due process component of the Fifth Amendment, which requires the government to follow appropriate procedures when its agents or officials decide to deprive a person of liberty. See Daniels v. Williams, 474 U.S. 327, 331 (1986). On the other hand, challenges to conditions of confinement rely on the substantive due process component of the Fifth Amendment, which forbids “certain government actions regardless of the fairness of the procedures used to implement them.” See id. Judge Green’s opinion addressed only the Guanatanamo detainees’ procedural due process rights to challenge the procedures used to confirm their status as enemy combatants. See In re Guantanamo, 355 F. Supp.2d at 465-78 (discussing whether CSRTs comport with procedural due process). Judge Green gave no consideration to whether the detainees have any rights under substantive due process to challenge their conditions of confinement. See also O.K. v. Bush, 377 F. Supp. 2d at 112 (discussing procedural vs. substantive due process issue).

11 It is not even settled that petitioner may assert a condition of confinement claim in a habeas case. Neither the Supreme Court nor the D.C. Circuit have squarely resolved whether challenges to conditions of confinement may be brought under habeas proceedings. See Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979) (“Thus, we leave for another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of confinement itself.”); Brown v. Plaut, 131 F.3d 163, 168-69 (D.C. Cir. 1997) (acknowledging that habeas corpus might conceivably be used to challenge prison conditions, but indicating that requiring use of habeas corpus in such cases would extend the writ beyond its core). Courts in other jurisdictions that have squarely addressed the issue, however, have affirmatively held that conditions of confinement claims that do not seek accelerated release from custody are not within the scope of the writ of habeas corpus. See, e.g., Cochran v. Buss, 381 F.3d 637, 639 (7th Cir. 2004); Carson v. Johnson, 112 F.3d 818, 820-21 (5th Cir.1997); McIntosh v. United States Parole Commission, 115 F.3d 809, 811-12 (10th Cir. 1997); Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991).

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civilized measure of life’s necessities” and reflect an attitude of “deliberate indifference to inmate health or safety” by Guantanamo authorities, the standard applied in the domestic prison context.12 Indeed, respondents’ showing supra § II.A demonstrates quite the opposite.13

Accordingly, a showing of deliberate indifference – which would be the minimum showing required in this context – is absent, and petitioner’s request for injunctive relief cannot succeed. His motion, therefore, should be denied.

12 Cf. also Bonner v. Parke, 918 F. Supp. 1264, 1270 (N.D. Ind. 1996) (finding that placement of prison inmate in disciplinary segregation for term of three years did not impose atypical and significant hardship on inmate, so as to create due process liberty interest in the inmate to remain in general prison population); Hill v. Pugh, No. 02-1561, 2003 WL 22100960, at * 4-* 5 (10th Cir. Sep. 11, 2003) (finding that federal prisoner’s placement in a maximum security prison where he was isolated in his cell for twenty-three hours a day and suffered from sensory deprivation did not implicate due process rights under the Fifth Amendment or constitute cruel and unusual punishment under the Eighth Amendment where prisoner’s minimal physical requirements for food, shelter, clothing, and warmth were satisfied).

13 Whether the “deliberative indifference” standard applied in the domestic prison context translates without alteration to the context involved in this case, i.e., the detention of enemy combatants by the military during a time of war, is debatable, at best. Cf. O.K., 377 F. Supp. 2d at 112-13 n.10 (noting that substantive due process analysis is dependent upon the precise circumstances involved and that “[n]o federal court has ever examined the nature of the substantive due process rights of a prisoner in a military interrogation or prisoner of war context”). Indeed, separation of powers principles would require satisfaction of an even more stringent standard before judicial intervention is warranted in a case like this. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 124 S. Ct. 2633, 2647 (2004) (plurality opinion) (stating that “[w]ithout doubt, our Constitution recognizes that core strategic matters of warmaking belong in the hands of those who are best positioned and most politically accountable for making them”); Almurbati v. Bush, 366 F. Supp. 2d 72, 81 (D.D.C. 2005) (Walton, J.) (indicating that “it is a fundamental principle under our Constitution that deference to the Executive Branch must be afforded in matters concerning the military and national security matters.”); Khalid v. Bush, 355 F. Supp. 2d 311, 328 (D.D.C. 2005) (explaining that management of wartime detainees’ confinement conditions is the province of the Executive and Legislative branches, thus precluding judicial scrutiny of such conditions).

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C. THE RELIEF REQUESTED WOULD IMPOSE UNDUE BURDENS ON THE GOVERNMENT AND INJURE ITS INTERESTS AS WELL AS THE PUBLIC INTEREST

Petitioner’s request for injunctive relief also should be denied because it would impose inappropriate burdens on the Guantanamo authorities and interfere with the appropriate operation of the detention facility. Petitioner’s requested relief seeks to interfere with the competent judgment and expertise of Guantanamo authorities respecting the detention of petitioner. The public, however, has a strong interest in assuring that the military detention operations provided at Guantanamo are not interrupted, overly burdened, and second-guessed by the unnecessary or contra-factual demands of a detainee pertaining to the particulars of detention conditions. In this vein, petitioner’s motion requests relief that fails in the specificity required for coercive injunctive relief. Compare Petr’s Motion, Proposed Order (seeking, inter alia, release from

“solitary confinement,” “end[ing] of all abuse,” prohibition on any “act in violation of Common

Article Three”) with FED. R. CIV. P. 65(d) (indicating that “[e]very order granting an injunction . .

. shall be specific in terms; [and] shall describe in reasonable detail . . . the act or acts sought to be restrained . . . .”). The Supreme Court has explained that Rule 65(d)’s specificity requirement

“was designed to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood.” Schmidt v. Lessard, 414 U.S. 473, 476 (1974). The relief sought by petitioner would likely require the Court to delve into the day-to-day workings of Guantanamo and regularly second-guess, or consider second-guessing, the military, which, as explained above, the

Supreme Court has instructed the Judiciary generally not to do. See Inmates of Occoquan v.

Barry, 844 F.2d 828, 841 (D.C. Cir. 1988) (“But in carrying out their remedial task, courts are

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not to be in the business of running prisons. The cases make it plain that questions of prison administration are to be left to the discretion of prison administrators.”). The prospect of the

Court being entangled, through an improper injunction, in the minutiae of the Guantanamo detention operations at petitioner’s behest indicates that such relief would impose undue burdens on the government and be contrary to the public interest. Furthermore, petitioner’s request for relief cannot be viewed in isolation or confined to just the petitioner at issue in the present motion, because any order granting the form of relief petitioner seeks would likely prompt counsel for many detainees in other cases to demand the similar remedies. Accordingly, providing petitioner with the relief he requests would be an inappropriate burden for the military authorities at Guantanamo and contrary to the public interest.

CONCLUSION

For the reasons stated above, respondents respectfully request that petitioner’s motion to lift the stay and for a preliminary injunction be denied in all respects.

Dated: October 6, 2006 Respectfully submitted,

PETER D. KEISLER Assistant Attorney General

DOUGLAS N. LETTER Terrorism Litigation Counsel

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/s/ Terry M. Henry JOSEPH H. HUNT (D.C. Bar No. 431134) VINCENT M. GARVEY (D.C. Bar No. 127191) TERRY M. HENRY JAMES J. SCHWARTZ PREEYA M. NORONHA ROBERT J. KATERBERG ANDREW I. WARDEN NICHOLAS J. PATTERSON EDWARD H. WHITE United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530 Tel: (202) 514-4107 Fax: (202) 616-8470

Attorneys for Respondents

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