Abdulrazzaq v. Trump ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NASHWAN AL-RAMER ABDULRAZZAQ,
Plaintiff,
v. Civil Action No. 17-1928(EGS)
DONALD J. TRUMP, et al.,
Defendants.
MEMORANDUM OPINION
Petitioner Nashwan Al-Ramer Abdulrazzaq, a male Iraqi
citizen detained at a prison facility in Guantanamo Bay, Cuba
(“Guantanamo”), is awaiting trial before a military commission
on non-capital charges of Denying Quarter, Attacking Protected
Property, Using Treachery or Perfidity, Attempted Use of
Treachery or Perfidity, and Conspiracy to Violate the Laws of
War. Mot. to Dismiss Pet’r’s Second Am. Pet. for a Writ of
Habeas Corpus (“Mot. to Dismiss”), ECF No. 47 at 17. 1
On November 29, 2017, Petitioner filed a Second Amended
Petition for a Writ of Habeas Corpus, raising four claims:
(1) the conditions of his confinement at Guantanamo violate the
Eighth Amendment; (2) the structure of the military commissions
1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
process violates the Due Process Clause of the Fifth Amendment
(“conflict-of-interest” claim); (3) discrimination against him
by reason of his nationality in violation of the equal
protection guarantees in the Fifth Amendment (“equal protection”
claim); and (4) violation of his right to counsel guaranteed by
the Sixth Amendment and the Military Commissions Act (“MCA”)
(“interference-with-counsel-communications” claim). Pet’r’s
Opp’n to Resp’ts’ Mot. to Dismiss Pet’r’s Second Am. Pet. for a
Writ of Habeas Corpus, (“Opp’n”), ECF No. 59 at 6-7.
Pending before the Court is the Respondents’ motion to
dismiss. Respondent argues that Petitioner has failed to state
an Eighth Amendment claim, and that the Court lacks jurisdiction
to consider the Petitioner’s conflict-of-interest, equal
protection, and interference-with-counsel-communications claims.
In the alternative, Respondent argues that the court should
abstain from deciding these three claims at this time. Upon
careful consideration of the parties’ submissions, the
applicable law, and for the reasons discussed below, the Court
GRANTS IN PART and HOLDS IN ABEYANCE IN PART Respondents’ Motion
to Dismiss. Petitioner’s Eighth Amendment claim is DISMISSED.
Petitioner’s remaining claims are HELD IN ABEYANCE. Since the
Court will abstain from resolving the merits of those claims
pending the ultimate conclusion of the military commission
2
proceedings, all proceedings relating to those claims are
STAYED.
I. Background
A. Petitioner’s Medical Condition
The following facts are alleged in Petitioner’s Second
Amended Petition for Writ of Habeas Corpus. Petitioner has been
in the custody of the United States since 2006, first at one or
more “black sites,” and then at Guantanamo since April 2007.
Second Am. Pet., ECF No. 164 ¶ 9. Petitioner’s medical records
show that “he has sought treatment for chronic and worsening
back pain” throughout his detention. Id. ¶ 18. A computerized
tomography scan (“CT scan”) taken in 2008 showed “degenerative
disc disease between the L4 and L5 vertebrae.” Id. At that
point, Petitioner’s recurring back pain was deemed chronic. Id.
In May 2008, an examination noted that he “seemed unsteady while
standing” and in June 2008, his “back pain had increased to
include pain that radiated down his right leg.” Id. In August
2008, his doctors noted that he “‘expressed concerns about the
current back pain and the length of time’ it has taken to
resolve the issue.” Id. Petitioner “continued to seek treatment
through 2008 and into 2009.” Id. ¶ 19. In August 2009, he
reported experiencing “flare-ups and pain radiating from his
back to his left leg.” Id. As a result, medical examiners
“performed various diagnostic tests, but failed to cure the
3
ailment or the pain.” Id. “X-rays and CT scans continued to show
degenerative disc disease.” Id. “Throughout 2010, Petitioner
continued to be seen for chronic back pain [and] [i]n June 2010,
he again reported pain that ran down the side of his leg.” Id.
“Throughout 2010, he received physical therapy, traction table
therapy, and regular treatments with a Transcutaneous Electrical
Nerve Stimulator unit.” Id. ¶ 21. However, “[t]hese therapies
and treatments were ineffective.” Id.
In September 2010, Petitioner was diagnosed with spinal
stenosis, “an abnormal narrowing of his spinal canal” which can
result in pain and “neurological deficits such as numbness and
loss of motor control.” Id. ¶ 22. As a result of this diagnosis,
“a doctor proposed the possibility of surgery, though none was
performed.” Id. In November 2011, “Petitioner was again
diagnosed with lumbar spine disc herniation and spinal
stenosis,” reporting “pain radiating to his right buttock.” Id.
¶ 23. Petitioner continued to experience and be seen for chronic
low back pain throughout the remainder of 2011 and 2012. Id. ¶¶
23, 24. In January 2012, he “reported low back pain radiating to
his left thigh” and in September 2012, “sharp pain radiating
from his back toward his left knee.” Id. ¶ 24. Doctors ordered
testing, “but it is not clear from the medical records whether
that testing was performed.” Id. “In November 2012, [Petitioner]
continued to report radiating pain from his low back down
4
through his thighs, but for the first time, reporting feeling
‘pins and needles sensations’ in his toes.” Id. ¶ 25.
Between 2013 and 2017, “Petitioner’s condition continued to
degrade and he continued to suffer from back pain.” Id. ¶ 26. On
January 9, 2017, Petitioner was subjected to “forcible cell
extraction” (“FCE”) 2 with “no accommodation . . . made for his
long-standing spinal and nerve diseases, well-known to
Guantanamo personnel . . . after which his lower back pain
symptoms noticeably increased.” Id. ¶ 27.
On January 23, 2017, another CT scan was performed
revealing Petitioner’s increased degeneration of the spine. Id.
¶ 28. “It was at this time, many years into Petitioner’s history
of accelerating symptoms, that an MRI was first proposed.” Id.
Independent medical experts informed Petitioner and Respondents
that Petitioner’s spinal condition, “if left untreated, could
cause severe and permanent neurological impairment.” Id.
However, “Guantanamo personnel left this condition untreated for
approximately 9 months by which time severe and permanent
neurological impairment had either occurred or was imminent.”
Id.
2 Petitioner alleges that the forced cell extraction was a result
of Petitioner’s resistance to female guards shackling him, which
he did because physical contact with females who are not family
is contrary to his religious convictions. Id. ¶ 27.
5
In August 2017, Petitioner “began to experience an increase
in the loss of sensation in both feet . . . increased loss of
sensation in both hands and both legs . . . increase in his
muscle weakness . . [and] an increase in the level, sharpness,
and frequency of his pain.” Id. ¶ 29. On August 10, 2017,
following a medical examination, “[t]he doctor determined that
Petitioner’s deteriorating condition required transportation to
the hospital for additional tests. Some tests were conducted,
but, apparently, a prescribed CT scan could not be performed
because the hospital staff failed to properly inject intravenous
contrast dye for the exam.” Id. ¶ 31.
On September 1, 2017, counsel for Petitioner addressed an
“Emergency Request for Expert Assistance-Neurological Surgery”
memorandum to Respondents. Id. ¶ 34. “The memorandum described
the inability of Petitioner to obtain urgently needed medical
care, the inability of Petitioner or his counsel to obtain
current medical records concerning his status or care, and
requested the intervention of the Convening Authority to appoint
an independent medical specialist able to diagnose Petitioner's
condition and recommend treatment.” Id. ¶ 34. The memorandum
was supported by a letter from doctors associated with
Physicians for Human Rights who opined that Petitioner needed
immediate emergency attention. Id. ¶ 35.
6
On September 5, 2017, a surgical team was flown to
Guantanamo in the midst of Hurricane Irma to perform emergency
back surgery on Petitioner. Id. ¶¶ 36-37.
B. Military Commission Proceedings
On June 2, 2014, the Convening Authority 3 referred the
charges against the Petitioner to a military commission for
trial, Mot. to Dismiss, ECF No. 47 at 17, and pretrial
proceedings have been ongoing since that time, Resp’t Opp’n to
Pet’r’s Mot. to Lift Stay and for Prelim. Inj., ECF No. 149 at
6. Petitioner’s trial is scheduled to begin September 19, 2020.
Id. at 7. Petitioner has raised his equal protection, conflict-
of-interest, and interference-with-counsel-communications claims
with the military judge in motions during pretrial proceedings
and received adverse rulings on each. Mot. to Dismiss, ECF No.
47 at 8, Reply; ECF No. 62 at 4.
II. Standard of Review
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) “tests the legal sufficiency of a complaint.” Browning
v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The court will
dismiss a claim if the complaint fails to plead “enough facts to
state a claim for relief that is plausible on its face.” Bell
3 The Convening Authority is the Defense Department official who
refers a case to trial. In re Al-Nashiri, 835 F.3d 110, 112
(D.C. Cir. 2016).
7
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint
must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief,” Fed. R. Civ. P.
8(a)(2), “in order to give the defendant fair notice of what the
. . . claim is and the grounds upon which it rests,” Twombly,
550 U.S. at 555 (citation and internal quotation marks omitted).
A complaint survives a Rule 12(b)(6) motion only if it
“contain[s] sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 570). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to draw
[a] reasonable inference that the defendant is liable for the
misconduct alleged.” Id. A complaint alleging facts which are
“‘merely consistent with’ a defendant’s liability . . . ‘stops
short of the line between possibility and plausibility of
entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).
III. Discussion
A. Eighth Amendment Claim
1. Petitioner Fails to State an Eighth Amendment Claim
Petitioner alleges long-standing and deliberate
indifference to his serious medical needs in violation of the
Eighth Amendment. Opp’n, ECF No. 59 at 6. There is no dispute as
to whether this claim is properly before the Court: a person “in
8
custody 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 Eighth Amendment prohibits the infliction of “cruel and
unusual punishments.” U.S. Const. amend. VIII. “[T]he
government[] [is] obligat[ed] to provide medical care for those
whom it is punishing by incarceration.” Estelle v. Gamble, 429
U.S. 97, 103 (1976). The Supreme Court therefore has
“conclude[d] that deliberate indifference to serious medical
needs of prisoners constitutes the ‘unnecessary and wanton
infliction of pain’ proscribed by the Eighth Amendment.” Id. at
104 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1962)).
To state a claim for an Eighth Amendment violation,
Petitioner must allege that the Guantanamo officials: (1) knew
that Petitioner “face[d] a substantial risk of serious harm”;
and (2) “disregard[ed] that risk by failing to take reasonable
measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847
(1994). The risk of “serious inmate harm” must be dire: “a
condition of urgency, one that may produce death, degeneration,
or extreme pain.” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.
1994). With regard to the second prong, “a prison official must
have a ‘sufficiently culpable state of mind.” Farmer, 511 U.S.
at 834. “In prison condition cases that state of mind is one of
‘deliberate indifference’ to inmate health or safety.” Id.
9
(citing Wilson v. Seiter, 501 U.S. 294, 302-303 (1991)). The
test for “deliberate indifference” is a subjective one:
a prison official cannot be found liable under
the Eighth Amendment for denying an inmate
humane conditions of confinement unless the
official knows of and disregards an excessive
risk to inmate health or safety; the official
must both be aware of facts from which the
inference could be drawn that a substantial
risk of serious harm exists, and he must also
draw the inference.
Id. at 837. This state of mind is more blameworthy than
negligence. Id. at 835 (citing Estelle, 429 U.S. at 104).
It is not the case, however, “that every claim by a
prisoner that he has not received adequate medical treatment
states a violation of the Eighth Amendment”:
[I]n the medical context, an inadvertent
failure to provide adequate medical care
cannot be said to constitute “an unnecessary
and wanton infliction of pain” or to be
“repugnant to the conscience of mankind.”
Thus, 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 the Eighth
Amendment. Medical malpractice does not become
a constitutional violation merely because the
victim is a prisoner. In order to state a
cognizable claim, a prisoner must allege acts
or omissions sufficiently harmful to evidence
deliberate indifference to serious medical
needs. It is only such indifference that can
offend “evolving standards of decency” in
violation of the Eighth Amendment.
Estelle, 429 U.S. at 105-106.
10
Respondent urges the Court to dismiss Petitioner’s claim,
arguing that Petitioner is unable to meet the subjective factor–
deliberate indifference–because Petitioner concedes that medical
personnel did not ignore his complaints; rather “his own
allegations show that his spinal condition has not been ignored,
but rather has been continually evaluated, monitored, and
treated.” Mot. to Dismiss, ECF No. 47 at 47. Furthermore,
Respondents point out that in view of the three spinal
operations he has undergone, Petitioner cannot allege that he
has been refused surgical treatment. Id. Respondents conclude
that Petitioner’s claim essentially is “that Guantanamo medical
personnel should have recognized the gravity of and acted upon
Petitioner’s condition sooner.” Id. at 48. This, they point out,
is either an assertion of a professional disagreement or a
negligence claim, neither of which satisfies the deliberate
indifference standard. Id.
Petitioner argues that the question of whether Guantanamo
medical officials had the “requisite knowledge of a substantial
risk” is a question of fact and therefore inappropriate to be
determined on a motion to dismiss. Id. (quoting Farmer, 511 U.S.
at 842). He does not dispute the standard applicable to an
Eighth Amendment claim, but citing medical records provided by
the Respondent, asserts that “the Petition certainly alleges
facts demonstrating more than a decade of deliberate
11
indifference to [Petitioner’s] ever more urgent medical needs”
and given that “factual allegations are to be liberally
construed in the Petitioner’s favor at this stage in the
proceedings” it would be inappropriate to dismiss his claims at
this time. Opp’n, ECF No. 59 at 38, 40. This argument is
unpersuasive because the Court is “not bound to accept as true a
legal conclusion couched as a factual allegation.” Papasan v.
Allain, 478 U.S. 265, 286 (1986).
There is no dispute that Respondent knew of Petitioner’s
serious medical condition at the beginning of his detention.
Petitioner’s medical records, based on a custodial interview in
2006, indicate that he reported that prior to his detention, he
saw a doctor in Tehran, Iran who diagnosed him as having a
herniated disc and constricted vertebrae. ECF No. 59-1 at 1. 4
4 Although this medical record is attached to Petitioner’s
Opposition briefing, the Court finds that it is appropriate to
take note of it. “The Supreme Court has provided scant guidance
on [what procedure is due to detainees challenging their
detention in habeas corpus proceedings], consciously leaving the
contours of the substantive and procedural law of detention open
for lower courts to shape in a common law fashion.” Al-Binahni
v. Obama, 590 F.3d 866, 870 (D.C. Cir. 2010). “This primacy of
independence over process is at the center of the [Supreme
Court’s] Boumediene opinion, which eschews prescribing a
detailed procedural regime in favor of issuing a spare but
momentous guarantee that a “judicial officer must have adequate
authority to make a determination in light of the relevant law
and facts.” Id. at 880. “As such, the Court is not restricted to
follow the standard for addressing motions to dismiss . . . as
required in a civil action outside of the habeas context.” Al-
Kandari v. United States, Civil Action No. 15-329, ECF No.
Classified Mem. Op. at 11 (D.D.C. Aug. 31, 2015).
12
Petitioner reported that the doctor in Tehran told him that
surgery would not address the issue, but when physical therapy
did not help him, the doctor advised him to have surgery. Id. It
is reasonable, therefore, to infer that failure to provide
medical care for this condition would result in “a substantial
risk of serious harm” to the Petitioner.
Respondent argues–and the Court agrees–that Petitioner
cannot, however, as a matter of law, state a claim for an Eighth
Amendment violation because, taking the allegations in the
Petition to be true, and making all reasonable inferences from
them, plaintiff’s allegations do not state a cognizable claim
for deliberate indifference on the part of the Guantanamo
medical officers. Rather, the allegations show that his
condition has been evaluated, monitored, and treated throughout
his detention. See Second Am. Pet., ECF No. 164 ¶ 18 (CT scan
shows degenerative disc disease in 2008 with examinations in
May, June, and August); ¶ 19 (“various diagnostic tests”
performed); ¶ 21 (2010: “Petitioner continued to be seen for
chronic back pain” and “[t]hroughout 2010, he received physical
therapy, traction table therapy, and regular treatments with a
Transcutaneous Electrical Nerve Stimulator unit”); ¶ 22 (2010:
“diagnosed with spinal stenosis”); possibility of surgery
proposed); ¶ 23 (2011: “diagnosed with lumbar spine disc
herniation and spinal stenosis”); ¶ 24 (late 2011-12 “seen for
13
chronic low back pain”); ¶ 28 (January 2017: CT scan); ¶ 37
(September 5, 2017: surgery). Respondent’s Motion to Dismiss
contains additional facts—specifically that Petitioner underwent
surgery on September 18, 2017 and on November 14, 2017—that
post-date the filing of the Second Amended Complaint and to
which Petitioner does not object. See Mot. to Dismiss, ECF No.
147 at 22-23; see generally ECF No. 59. In view of the lack of
an objection to the fact of these two surgeries, the Court finds
that it is appropriate to acknowledge them. See supra n.6.
Overall, the record indicates that Petitioner has undergone a
total of five surgeries to date during his detention. Pet’r’s
Mot. to Lift Stay of Proceedings and for Prelim. Inj., ECF No.
147 at 8.
Petitioner disagrees with the decisions that were made by
Guantanamo medical officers, and the Court does not by any means
discount his allegations of the chronic and debilitating pain he
suffers as a result of this disease. Petitioner’s own
allegations, however, demonstrate that his condition has been
evaluated, monitored, and treated throughout his detention. The
reasonable inference to be drawn from Petitioner’s allegations
is that he disagrees with the medical decisions that have been
made and/or that those decisions amount to negligence. But as
discussed infra Section III.A.2, Petitioner does not dispute
that he is not entitled to a medical provider of his own
14
choosing nor that he is not entitled to medical care of his own
choosing. And a claim of negligent medical treatment does not
state an Eighth Amendment claim. Estelle, 429 U.S. at 105.
Accordingly, and in view of the deference due to the judgment of
medical personnel in this situation, Petitioner’s deliberate
indifference claim will be DISMISSED.
The Court is concerned about the alleged impact of the
forced cell extraction alleged in the Petition, but notes that
the parties have, in response to the October 20, 2017 Order of
this Court, submitted biweekly joint status reports stating,
inter alia, whether the Petitioner was subjected to forced cell
extractions during the proceeding two week period, and
Petitioner has not been subjected to one since the biweekly
reporting began. See generally Docket for Civil Action No. 17-
1928.
2. Petitioner is not Entitled to Prospective Relief on
his Eighth Amendment Claim
Petitioner has failed to state a claim for deliberate
indifference, but even if he had, he would not be entitled to
the injunctive relief he seeks. Petitioner seeks, among other
things, the following forward-looking injunctive relief:
(i) “begin immediately to treat Petitioner in accordance with
applicable standards of medical care as determined by a court-
appointed medical expert;” (ii) “provide the Court and defense
15
counsel with a proposed course of medical treatment of
Petitioner;” and (iii) “appoint and fund the reasonable
compensation and expenses of qualified medical doctors
independent of the United States government in the specialties
of orthopedic and/or spinal neurosurgery and pain management,
which are applicable to Petitioner’s current medical
disabilities, and provide them such access as they deem
necessary to enable them to promptly conduct such medical
examinations, including but not limited to in-person medical
examination(s) of Petitioner, and record reviews as they deem
appropriate to prepare a report to the Court and the parties on
(a) the adequacy of Petitioner’s past treatment and (b) their
recommendations as to a future course of treatment.” Second Am.
Pet., ECF No. 164 at 50-51.
“[T]o establish eligibility for an injunction, the inmate
must demonstrate the continuance of [the deliberate
indifference] during the remainder of the litigation and into
the future. In so doing, the inmate may rely, in the district
court’s discretion, on developments that postdate the pleadings
and pretrial motions, as the defendants may rely on such
developments to establish that the inmate is not entitled to an
injunction.” Farmer, 511 U.S. at 846 (citations omitted). The
Court should exercise caution in issuing any injunction:
16
Of course, a district court should approach
issuance of injunctive orders with the usual
caution, see Bell v. Wolfish, supra, 441 U.S.
at 562, 99 S. Ct., at 1886 (warning courts
against becoming “enmeshed in the minutiae of
prison operations”), and may, for example,
exercise its discretion if appropriate by
giving prison officials time to rectify the
situation before issuing an injunction.
Id. at 846-47.
The Petition for Writ of Habeas Corpus was filed on
September 21, 2017. Petitioner, in his opposition brief,
acknowledges that he has received intensive medical attention
since just before the petition was filed and that the intensive
medical attention has continued since that time. See Opp’n, ECF
No. 59 at 40, 43 (“Since early September 2017, following his
collapse, Petitioner began to receive intensive medical
attention, and that has continued. He has had four significant
spinal and other surgeries, and other types of focused medical
attention since then.”); see also id. at 46 (“the fact that
prison authorities may have recently begun to act appropriately,
after years of deficient medical care, is certainly welcome”).
Petitioner disputes that this “emergency-driven medical
attention” should provide justification for denying prospective
relief, arguing that “[t]he only reliable record of the
attitudes and intentions of the prison authorities at Guantanamo
is the record of their attitudes and actions up to, and
immediately after, Petitioner’s August [2017] collapse. . . a
17
record of 10-plus years of deliberate indifference.” Id. at 40-
41.
Respondent has attached to its motion to dismiss three
declarations of the Senior Medical Officer (“SMO”) responsible
for Petitioner’s care. In the first declaration, dated October
5, 2017, the SMO states that he/she has served in the position
since July 14, 2017, and provides some information about his/her
qualifications. Decl. of SMO, Camp VII, ECF No. 47-1 ¶¶ 1-2. The
Declaration goes on to describe: (1) Petitioner’s diagnosis of
lumbar spinal stenosis; (2) treatment strategies; (3) the onset
of progressive symptoms; (4) treatment of the progressive
symptoms; (5) Petitioner’s denial of bowel/bladder incontinence
and saddle anesthesia; (6) the need for an MRI or CT, “neither
of which were available locally at Guantanamo”; (7) the rapid
progression of the symptoms in early September 2017 and the
resulting need for surgery by appropriate specialists on
September 5, 2017; (8) the need for the performance of another
surgery on September 18, 2017; (9) Petitioner’s post-operative
recovery and physical rehabilitative therapy; (10) the need for
subsequent surgery; and (11) the arrival of MRI equipment at
Guantanamo. Id. ¶¶ 4-20.
In the second declaration, dated November 16, 2017, the SMO
states that he/she has served in the position since October 30,
2017 and provides some information about his/her credentials.
18
Decl. of SMO, Camp VII, ECF No. 47-2 ¶ 1. The declaration goes
on to describe: (1) a CT scan performed following Petitioner’s
September 18, 2017 surgery; (2) multi-disciplinary
teleconferences conducted “to formulate a comprehensive, safe,
and methodical operative plan for the Petitioner’; (3) the
arrival of a multi-disciplinary team which performed surgery on
Petitioner on November 14, 2017; and (4) Petitioner’s post-
operative recovery. Id. ¶¶ 4-8.
The third declaration, dated December 28, 2017, of the same
SMO who submitted the second declaration, provides an update on
Petitioner’s post-operative recovery. Decl. of SMO, Camp VII,
ECF No. 47-3. Declarations of the SMO have been appended to the
biweekly status reports that the Court has been monitoring since
ordering them to be filed in October 2017.
To be entitled to injunctive relief, Petitioner must allege
facts from which it can be reasonably inferred that the
deliberate indifference will continue “during the remainder of
the litigation and into the future.” Farmer, 511 U.S. at 846.
As explained supra Section III.A.1, Petitioner has acknowledged
that he has received intensive medical attention since early
2017. See Opp’n, ECF No. 59 at 40, 43, 46. The SMO declarants
are physicians responsible for the medical care provided to
certain Guantanamo detainees. The declarations are based on
personal discussions with the Petitioner and the specialists
19
treating him. They are detailed and thorough. Furthermore, the
fact that Respondent has deployed surgical teams to Guantanamo
to treat Petitioner and that he has undergone five surgeries
undermines any inference that Respondent may be deliberately
indifferent to Petitioner’s surgical needs in the future.
Petitioner disagrees with the medical decisions that have
been made, but he did not respond to the Respondent’s arguments
that he does not have a right to choose his own medical provider
nor to obtain treatment of his own choosing. See generally
Opp’n, ECF No. 59. Petitioner has therefore conceded those
arguments. See Hopkins v. Women’s Div., Gen. Bd. of Global
Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well
understood in this Circuit that when a plaintiff files an
opposition to a dispositive motion and addresses only certain
arguments raised by the defendant, a court may treat those
arguments that the plaintiff failed to address as conceded.”),
aff’d, 98 Fed. App’x 8 (D.C. Cir. 2004).
Even if Petitioner had not conceded those arguments,
however, persuasive authority is clear that detainees do not
have a constitutional right to choose their own medical
providers nor to obtain treatment of their own choosing. See
Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir. 1986) (“A
prison inmate has no independent constitutional right to outside
medical care additional and supplemental to the medical care
20
provided by the prison staff within the institution.”); United
States v. Rovetuso, 768 F.2d 809, 825 (7th Cir. 1985) (“The
Eighth Amendment guarantees a prisoner treatment of his serious
medical needs, not a doctor of his own choosing.”); United
States ex rel. Hyde v. McGinnis, 429 F.2d 864, 867-68 (2d Cir.
1970) (“The prisoner's right is to medical care—not the type or
scope of medical care which he personally desires. A difference
of opinion between a physician and a patient does not give rise
to a constitutional right . . .”); Rabbani v. Trump, 05-cv-1607
(RCL), Mem. Op., ECF No. 379 at 19 (noting that Guantanamo
detainee is not entitled to the medical treatment of his
choice).
The injunctive relief Petitioner seeks, see supra at 15-16,
is clearly inconsistent with this authority as he seeks to
select his own medical provider and direct his own treatment. It
is also contrary to Supreme Court authority holding that courts
are to defer to the judgment of medical personnel. See Estelle
at 107 (“But the question whether an X-ray or additional
diagnostic techniques or 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.”). Finally, the
injunctive relief sought is highly intrusive, and therefore
inappropriate. See Rabbani, ECF No. 379 at 21 (noting that
21
similarly intrusive relief would “subject[] the medical judgment
and authority of [Guantanamo medical officers] to whatever
supposedly neutral physician the petitioner’s counsel selects”).
In view of the appropriate caution to be exercised in issuing an
injunction, the Court finds that Petitioner is not entitled to
the injunctive relief he seeks. Accordingly, Petitioner’s Eighth
Amendment claim is DISMISSED.
B. The Court Will Abstain from Exercising Jurisdiction
Over Petitioner’s Equal Protection, Conflict-of-Interest
and Interference-With-Counsel-Communications Claims in
Favor of Ongoing Military-Commission Proceedings
Petitioner also alleges: (1) discrimination against him by
reason of his nationality in violation of the equal protection
guarantees in the Fifth Amendment (“equal protection” claim);
(2) the structure of the military commissions process violates
the Due Process Clause of the Fifth Amendment (“conflict-of-
interest” claim); and (3) violation of his right to counsel
guaranteed by the Sixth Amendment and the MCA (“interference-
with-counsel-communications” claim). Opp’n, ECF No. 59 at 6-7.
The relief Petitioner seeks is, among other things, that the
Court order the military commission charges against him be
dismissed and prosecution of him under the current system be
enjoined. Second Am. Pet., ECF No. 164 at 52.
22
1. The Court Need Not Determine Whether it Has
Subject Matter Jurisdiction to Consider
Petitioner’s Remaining Claims
Respondent argues that the Court lacks jurisdiction to
consider these claims pursuant to 28 U.S.C. § 2241(e)(2) and/or
10 U.S.C. § 950g, or in the alternative, the Court should
abstain from considering them pending the conclusion of the
military commission proceedings. Because the Court concludes
that it should abstain from exercising jurisdiction in favor of
the ongoing military commission proceedings, the Court need not
determine whether it has subject matter jurisdiction to consider
them. See Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549
U.S. 422, 431, (2007) (“[A] federal court has leeway ‘to choose
among threshold grounds for denying audience to a case on the
merits.’” (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,
585, (1999))); see also In re Al-Nishiri, 835 F.3d 110, 117 n.1
(D.C. Cir. 2016) (“We need not weigh in on whether the district
court had subject matter jurisdiction to adjudicate Al-Nashiri’s
motion for preliminary injunctive relief. Although the
government suggests in its briefing before us that Al-Nashiri’s
claim does not sound in habeas—a claim that calls into question
the district court’s statutory jurisdiction, see 28 U.S.C.
§ 2241(e)(2)—we affirm the denial of that motion for reasons we
explain below. Because the motion was properly denied on
threshold grounds, we need not consider the district court’s
23
subject matter jurisdiction any further.”) (citations omitted)).
2. Military Commissions Act
“The MCA provides that military commissions have
jurisdiction to try ‘alien unprivileged enemy belligerent[s],’
[10 U.S.C.] § 948c, for ‘any offense made punishable’ by the
MCA, ‘whether such offense was committed before, on, or after
September 11, 2001,’ id. § 948d.” In re Al-Nashiri, 835 F.3d at
115. “In the MCA, Congress established an ‘integrated’ scheme
dictating how enemy belligerents are to be tried and obtain
appellate review . . .” Id. at 122. That scheme establishes
“procedural protections and rigorous review mechanisms for
military commissions.” Id. at 120. The “significant procedural
and evidentiary safeguards include “the right to be represented
by counsel, 10 U.S.C. § 949c, be presumed innocent, id. § 949l,
obtain and offer exculpatory evidence, id. § 949j, call
witnesses on his behalf, id. and challenge for cause any of the
members of the military commission and the military judge, id.
§ 949f.” Id. at 123.
The “rigorous review mechanisms” include:
trial with a military judge presiding and a
“jury” that, in capital cases, generally
consists of twelve military officers known as
“members” of the military commission. 10
U.S.C. §§ 948m, 949m(c). If he is convicted,
the convening authority—the Defense
Department official who initially referred the
case to trial—may review the guilty finding
and set it aside, or reduce it to a finding of
24
guilty of a lesser-included offense. Id. §
950b. The convening authority must review a
sentence to approve, disapprove, commute, or
suspend it in whole or in part. Id. A final
guilty finding, as modified by the convening
authority, will then be reviewed by the CMCR
unless the defendant properly waives this
right of review. Id. §§ 950f, 950c. The CMCR
is composed of both military and civilian
judges and has the power to review factual and
legal questions alike. Id. § 950f. The
defendant may appeal the CMCR’s decision to
our court, and we are empowered to review all
questions of law, including the sufficiency of
the evidence. Id. § 950g. Finally, our ruling
can be challenged via petition for writ of
certiorari in the Supreme Court. Id. §
950g(e).
Id.
3. Jurisdictional Abstention
“Federal courts generally ‘have a strict duty to exercise
the jurisdiction that is conferred upon them by Congress.’” In
re Al-Nashiri, 835 F.3d at 118 (quoting Quackenbush v. Allstate
Ins. Co., 517 U.S. 706, 716 (1996)). “This duty ‘is not,
however, absolute’” Id. (quoting Quackenbush, 517 U.S. at 716).
“In the context of criminal prosecutions, federal courts
routinely decline to adjudicate petitions that seek collateral
relief to prevent a pending prosecution.” Id. (citations
omitted). “[W]here the issue the petitioner challenges can be
litigated in pretrial motions and raised as a defense at trial,
federal courts typically require the petitioner to navigate that
process instead of skirting it.” Id. (citing Jarkesy v. SEC, 803
25
F.3d 9, 26 (D.C. Cir. 2015). In Schlesinger v. Councilman, 420
U.S. 738 (1975), the Supreme Court applied abstention doctrine
to court martial proceedings. Councilman, 420 U.S. at 759. And
in In re Al-Nashiri, the United States Court of Appeals for the
District of Columbia Circuit (“D.C. Circuit”) applied abstention
doctrine to military commissions constituted pursuant to the
MCA. In re Al-Nashiri, 835 F.3d at 122, 124. Accordingly, the
parties do not dispute that “the system enacted to adjudicate
[Guantanamo detainees’] guilt . . . adequately protect[s]
[their] rights” and consequently, “judicial review should not
take place before that system has completed its work” subject to
limited exceptions. In re Al-Nashiri, 835 F.3d at 122, 124;
Opp’n, ECF No. 58 at 24 (“In re al-Nashiri binds this Court, and
so the only remaining issue is whether Petitioner’s claims fall
within the scope of the doctrine announced in that case.”). 5 What
is at dispute is whether Petitioner’s claims fall within one of
the limited exceptions to abstention.
4. The “Status Exception” to Abstention
Petitioner argues that his commission-related claims fall
within “two branches” of the “status exception” to abstention.
Opp’n, ECF No. 59 at 28. Judge Friedman recently explained how
5 Petitioner reserves the right to argue that argue that
abstention does not apply to military commission proceedings at
the appropriate time. Opp’n, ECF No. 59 at 24 n.33.
26
the status exception fits within the “narrow and limited,” In re
Al-Nashiri, 835 F.3d at 128, exceptions to abstention:
In In re Al-Nashiri, the D.C. Circuit
described an exception to Councilman
abstention for a particular kind of
extraordinary circumstance: claims arising
from “express statutory or constitutional
language that gives [petitioner] a right not
to be tried” at all. In re Al-Nashiri, 835
F.3d at 131. Such rights permit pre-conviction
intervention by a habeas court because “the
trial itself creates an injury that cannot be
remedied on appeal.” Id. See also Khadr v.
United States, 529 F.3d 1112, 1117-18 (D.C.
Cir. 2008) (holding that denial of a
preliminary jurisdictional ruling by a
military commission is not immediately
appealable). Courts have recognized only four
types of proceedings that rise to this level:
(i) trials that would violate the double
jeopardy prohibition, Abney v. United States,
431 U.S. 651, 659, 97 S. Ct. 2034, 52 L. Ed.
2d 651 (1977); (ii) trials for conduct
protected by the speech or debate clause,
Helstoski v. Meanor, 442 U.S. 500, 506-07, 99
S. Ct. 2445, 61 L. Ed. 2d 30 (1979); (iii)
trials without a grand jury indictment in
violation of the Fifth Amendment, Midland
Asphalt Corp. v. United States, 489 U.S. 794,
802, 109 S. Ct. 1494, 103 L. Ed. 2d 879 (1989);
and (iv) the “status exception,” where
circumstances raise “substantial arguments”
as to whether certain individuals may be tried
by the military at all. In re Al-Nashiri, 835
F.3d at 133. “[T]hat is, where there is a
substantial question whether a military
tribunal has personal jurisdiction.” Id. See
also Schlesinger v. Councilman, 420 U.S.
[738,] 758-59, 95 S. Ct. 1300.
Al-Baluchi v. Esper, Civil Action No. 08-2083, 2019 WL 3414334,
at * 5 (D.D.C. July 29, 2019)
27
a. Equal Protection Claim
Petitioner argues that his equal protection claim falls
under one type of status exception to abstention. See Opp’n, ECF
No. 59 at 29. The D.C. Circuit has observed that “[t]he precise
contours of this ‘status’ exception are unclear, but the Supreme
Court has offered two examples of challenges that may come
within its scope.” In re Al-Nashiri, 835 F.3d at 133. The first
example is “where the military attempts to court-marshal a
defendant who is undisputedly a civilian.” Id. (quotation marks
omitted). “In these cases, the ‘issue presented concerned not
only the military court’s jurisdiction, but also whether under
Art. I Congress could allow the military to interfere with the
liberty of civilians even for the limited purpose of forcing
them to answer to the military justice system.’ Councilman, 420
U.S. at 759. Requiring civilian defendants to first proceed
through the military system would be ‘especially unfair’ because
of the ‘disruption caused to [their] civilian lives’ and the
accompanying ‘deprivation of liberty.’ Id. (quoting Noyd, 395
U.S. [683] 696 n.8 [(1969)], 89 S. Ct. 1876 [1884] [(1969)]).”
In re Al-Nashiri, 835 F.3d at 133. Accordingly, abstention “is
not appropriate in cases in which individuals raise substantial
arguments denying the right of the military to try them at all,
and in which the legal challenge turns on the status of the
persons as to whom the military asserted its power.” Hamdan v.
28
Rumsfeld, 548 U.S. 548, 585, n.16 (quotation marks and citations
omitted). “In other words, . . . when there is a substantial
question whether a military tribunal has personal jurisdiction
over the defendant,” abstention is inappropriate. Id.
Petitioner argues that his equal protection claim falls
within this exception because he raises a substantial question
as to whether the military commission created by the MCA has
personal jurisdiction over him: “If, as Petitioner contends, the
jurisdictional limitation to non-citizens violates the
Constitution on its face, then § 948c is void ab initio and no
one, including Petitioner, may lawfully be tried by the MCA
military commission.” Opp’n, ECF No. 59 at 29. Petitioner argues
that although the Fifth Amendment does not contain an explicit
right not to be tried, he falls within this exception because
“as a matter of logic, being forced to trial in a tribunal that
is devoid of jurisdiction over a person because of a fundamental
constitutional flaw rises to the same level as being forced to
trial despite a right not to be tried.” Opp’n, ECF No. 59 at 29.
Petitioner argues that his claim is “substantial” because
“Congress has established a separate and decidedly unequal
system of criminal justice that denies fundamental and statutory
rights to non-citizens that it affords to its citizens.” Id. at
30.
29
The status exception within which Petitioner argues he fits
falls within “an exception to Councilman abstention for a
particular kind of extraordinary circumstance: claims arising
from ‘express statutory or constitutional language that gives
[petitioner] a right not to be tried’ at all.” Al-Baluchi, 2019
WL 3414334, at * 5 (quoting In re Al-Nashiri, 835 F.3d at 131).
Respondent argues—and the Court agrees—that because the system
created by the MCA has been determined by the D.C. Circuit to
adequately protect the rights of Guantanamo detainees, an
exception to abstention must be based on a right not to be tried
at all, otherwise the admonition that the “cost, anxiety and
inconvenience” of needing to defend a prosecution is
insufficient to justify abstaining, would be meaningless. See
Councilman, 420 U.S. at 755.
Petitioner’s argument—that his equal protection claim
raises a substantial question as to whether the military
commission has personal jurisdiction over him “rises to the same
level” as a constitutional right not to be tried—is
unpersuasive. Petitioner has acknowledged that the Fifth
Amendment does not contain an explicit right not to be tried. He
therefore reframes his equal protection claim as one of personal
jurisdiction to fit within this example of the status exception
to abstention. But he has provided no legal support for this
novel theory. See generally Opp’n, ECF No. 59 at 28-32.
30
Furthermore, Petitioner’s argument that his claim is
“substantial” is inconsistent with D.C. Circuit precedent for
two reasons. First, when the D.C. Circuit held that “the system
enacted to adjudicate [Guantanamo detainees’] guilt . . .
adequately protect[s] [their] rights,” In re Al-Nashiri, 835
F.3d at 122, it was well aware that “[t]he MCA provides that
military commissions have jurisdiction to try ‘alien
unprivileged enemy belligerent[s],’” id. at 115 (citing 10
U.S.C. § 948c). Second, Petitioner’s equal protection claim has
been rejected by the D.C. Circuit. Al Bahlul v. U.S. 840 F.3d
757, 758 (D.C. Cir. 2016) (en banc) (per curiam) (“Bahlul has
also raised First Amendment and Equal Protection challenges to
his conviction. The Court rejects those challenges.”). 6
Petitioner attempts to distinguish his claim from those in Al-
Nashiri, because he “unlike al-Nashiri . . . does assert that
the military commissions are unconstitutional.” Opp’n, ECF No.
59 at 24-25 (internal quotations omitted). Since the D.C.
6Petitioner argues that the merits of his equal protection claim
remain open in this Circuit because the claim was rejected
without an opinion and two of the six judge majority voted under
a plain error standard. Opp’n, ECF No. 59 at 31 n.38.
Respondents disagree, arguing that this claim “has been rejected
by the only appellant panels to consider it on the merits,”
noting that Petitioner stated “that any attempt to present this
claim within the integrated military-commission trial and
appellate system would be futile.” Reply, ECF No. 62 at 16 n.8
(citing Second Am. Pet.). The Court notes that Petitioner
subsequently raised this claim before the military judge. Id. at
at 8 n.2
31
Circuit has rejected this same equal protection claim, however,
it is clear that Petitioner has not raised a substantial
question of jurisdiction.
Petitioner does not explain how raising this claim at this
time justifies this Court’s intervention in the ongoing
military-commission proceedings. Petitioner raised this same
claim before the military judge. Reply, ECF No. 62 at 8 n.2. To
the extent Petitioner disagrees with the military judge’s ruling
on this claim, he can seek appellate review within the system
created by the MCA, which includes review by an Article III
Court and potentially the Supreme Court. See In re Al-Nashiri,
835 F.3d at 122. Petitioner does not claim that he will be
unable to seek appellate review of the military judge’s
decisions with which he disagrees. See generally Opp’n, ECF No.
59. And his disagreement with that decision does not justify
this Court’s intervention. In re Al-Nashiri, 835 F.3d at 123
(“Al-Nashiri asks us to do what the Supreme Court notably did
not do in Councilman: determine whether pretrial intervention is
warranted by examining the on-the-ground performance of the
system that Congress and the Executive have established.”
(citation omitted)).
For all of these reasons, Petitioner’s equal protection
claim does not fall within the status exception to abstention,
and the Court will abstain from exercising jurisdiction to
32
decide this pre-trial challenge in favor of ongoing military-
commission proceedings.
b. Conflict-of-Interest and Interference-
With-Counsel-Communication Claims
Petitioner argues that his conflict-of-interest and
interference-with-counsel-communications claims fall under the
second example of a status exception to abstention. Opp’n, ECF
No. 59 at 32. This example occurs when there is an allegation
that a “military commission was not ‘regularly constituted’
under the Geneva Conventions. An irregularly constituted court
is ‘ultra vires’ and therefore necessarily lacks personal
jurisdiction over any defendant, the Court reasoned.” In re Al-
Nashiri, 835 F.3d at 134 (quoting Hamdan, 548 U.S. at 589 n.20).
Petitioner claims that the commission proceedings are ultra
vires because he is being denied: (1) the right to go to trial
before an unbiased judicial official; and (2) the effective
assistance of counsel in violation of the Sixth Amendment.
Opp’n, ECF No. 59 at 33.
Petitioner’s conflict-of-interest claim is that the
Convening Authority’s powers and responsibilities are both
prosecutorial and judicial. Id. at 32-33. Specifically:
the Convening Authority is the single most
powerful official presiding over an accused’s
military commission proceeding, responsible
for most of the critical actions affecting an
accused’s rights over the course of the
criminal proceeding, from discretionary
33
authority over what charges are brought to
trial and whether they are capital, to hand-
selecting the venire, retaining the power to
amend or overturn any sentence, and many
others in between, including negotiating plea
bargains and resourcing the defense.
Id. at 32. Petitioner’s interference-with-counsel-communications
claim alleges that “as a direct result of Government actions
(the most recent of which remain classified) Petitioner’s
ability to communicate with his commission counsel on a
confidential basis has been materially impaired to the point
that he has been constructively denied the assistance of
counsel, in violation of the Sixth Amendment and MCA.” Id. at
33. Petitioner contends that the alleged conflict of interest
and interference with counsel communications makes the
commission proceedings “so procedurally deficient that they are
wholly ultra vires.” Id. at 32 (citing In re Al-Nashiri, 835
F.3d at 134). As a result, Petitioner claims, he “has been and
will continue to be denied a full and fair opportunity to
litigate his defenses before the military commission.” Id. at 33
(citing Second Am. Pet., ECF No. 164 ¶¶ 83-84). Petitioner
argues that these defects are “structural” because they
“affect[] the framework within which the trial proceeds, rather
than simply an error in the trial itself,” id., and accordingly
they fall within the ultra vires exception, id. at 34.
Petitioner also contends that the ultra vires exception applies
34
because “the Executive Branch exceeded the authority granted to
it by Congress in formulating procedures for military
commissions” when it gave the Convening Authority a
prosecutorial role, which results in the commission being an
irregularly constituted court. Id. at 36 (citing Hamdan, 548
U.S. at 589 n.20).
The D.C. Circuit, when it determined that “the system
enacted to adjudicate [Petitioner’s] guilt will adequately
protect his rights,” was well aware of the Convening Authority’s
powers and responsibilities. See In re Al-Nashiri, 835 F.3d at
122. Accordingly, Petitioner’s argument—that the alleged
conflict of interest renders the entire scheme so procedurally
deficient as to be ultra vires—is untenable. The scheme provides
for review by the CMCR and the D.C. Circuit, and Petitioner has
not identified a structural flaw that will prevent him from
presenting his claims to those appellate bodies. See generally
Opp’n, ECF No. 59; see also In re Al-Nashiri, 835 F.3d at 125
(Petitioner “does not argue before us that any evidentiary or
procedural defects will prevent the military commission and
various appellate bodies from fully adjudicating his defense”).
Nor has he identified a structural flaw with the CMCR or D.C.
Circuit. See generally Opp’n, ECF No. 59. The Court is
unpersuaded by Petitioner’s argument that the alleged conflict
of interest results in the commission being an irregularly
35
constituted Court because at most, Petitioner has alleged an
isolated flaw in the undisputedly congressionally-authorized
scheme. This hardly renders the commission “irregularly
constituted” in light of the D.C. Circuit’s In re Al-Nashiri
decision. Finally, Petitioner does not argue that the MCA
contains a provision that impairs his ability to communicate
with counsel. See generally id.
Petitioner has raised these two claims before the military
judge and received adverse decisions. Mot. to Dismiss, ECF No.
47 at 30; Reply, ECF No. 62 at 4. To the extent he disagrees
with the military judge’s rulings, he can seek appellate review
within the system created by the MCA, which again includes
review by an Article III Court and potentially the Supreme
Court.
For all of these reasons, Petitioner’s conflict-of-interest
and interference-with-counsel-communications claims do not fall
within the status exception to abstention, and the Court will
therefore abstain from exercising jurisdiction to decide these
pre-trial challenges in favor of ongoing military-commission
proceedings.
In the alternative, Petitioner briefly argues that his
interference-with-counsel-communications claim is properly
characterized as a challenge to a condition of confinement:
“While the interference with Petitioner’s attorney-client
36
relationship alleged in Claim for Relief IV differs in important
respects from that addressed in Hatim, it shares the key
characteristic of being based on a prison-wide policy that does
not pertain specifically to military commission accused. It thus
constitutes a ‘condition of confinement’ regardless of whether
it is also deemed appropriate for habeas jurisdiction on any
other ground.” Opp’n, ECF No. 59 at 23-24.
Petitioner relies on Hatim v. Obama, 760 F.3d 54 (D.C. Cir.
2014) to support his assertion that this is a conditions of
confinement claim. In Hatim, Guantanamo detainees challenged two
policies–one concerning where detainees could meet with their
habeas lawyers and the other concerning the physical search
detainees must undergo before and after meeting with their
habeas lawyers–as “having the purpose and effect of discouraging
meeting with their [habeas] counsel.” Hatim, 760 F.3d at 356,
357. There was no dispute that the challenges to the two
policies were challenges to conditions of confinement and
therefore properly raised in a habeas petition. Id. at 358.
Here, Petitioner argues that there is a prison-wide policy
that results in interference with the attorney-client
relationship. As an initial matter, regardless of whether this
claim implicates any Sixth Amendment rights Petitioner may or
may not have, see Reply, ECF No. 62 at 20, the MCA itself
provides for his right to be represented by counsel. See 10
37
U.S.C. § 949c. The Court is not persuaded that this is properly
construed as a conditions of confinement claim. Unlike his
Eighth Amendment claim, Petitioner does not allege that this is
a conditions of confinement claim, see generally Second Am.
Pet., ECF No. 164, and Petitioner has not sought leave to amend
his Second Amended Petition, see generally Docket for Civil
Action No. 17-1928. And the alleged interference with counsel
communications does not “make his imprisonment more burdensome
than the law allows or curtail[] his liberty to a greater extent
than the law permits.” Aamer, 742 F.3d at 1036 (quoting Miller
v. Overholser, 206 F.2d 415, 420 (D.C. Cir. 1953).
Furthermore, this claim pertains to the conduct of and
fairness of his military-commission defense; not this habeas
proceeding. See Second Am. Pet., ECF No. 164 at 2 (alleging
“interference with Petitioner’s constitutional and statutory
right to counsel in his military commission case”); Id. at 8
(“Petitioner requests that the Court enjoin further proceedings
in Petitioner’s military commission case until his military
commission defense counsel are permitted to advise him of the
information contained at Exhibit NN, Attach. J, which is
necessary for counsel to obtain his informed consent to carry on
privileged discussions under the present circumstances.); Id. at
37 (“Petitioner is being denied his constitutional and statutory
right to counsel in his military commission case.”). Petitioner
38
raised the same claim before the military judge, who denied the
motion on the following grounds: “Taking the recitation of facts
provided by the defense in various pleadings . . . at face
value, the commission finds there is no evidence or even an
allegation of any intrusion into the attorney-client
relationship in this case. The commission further finds the
defense is not operating under an ethical constraint in meeting
with their client.” Reply, ECF No. 62-1 at 3.
To the extent Petitioner disagrees with the military
judge’s ruling on this claim, he can seek appellate review
within the system created by the MCA, which again includes
review by an Article III Court and potentially the Supreme
Court. Petitioner does not claim that he will be unable to seek
appellate review of this decision. See generally Opp’n, ECF No.
59. And because this Court has determined to abstain from
exercising jurisdiction to decide this pre-trial challenge in
favor of ongoing military-commission proceedings, the Court can
consider the claim following the ultimate conclusion of those
proceedings.
III. Conclusion
For the reasons set forth above, Respondent’s motion to
dismiss is GRANTED IN PART and HELD IN ABEYANCE IN PART.
Petitioner’s Eighth Amendment claim is DISMISSED. Petitioner’s
remaining claims are HELD IN ABEYANCE. Since the Court will
39
abstain from resolving the merits of those claims pending the
ultimate conclusion of the military commission proceedings, all
proceedings relating to those claims will be STAYED. An
appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
October 28, 2019
40