Case 1:05-cv-01555-RCL Document 270-1 Filed 06/28/13 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA IBRAHIM OSMAN IBRAHIM IDRIS, Detainee, Guantanamo Bay Naval Station, MOHAMMED IDRIS, Next Friend, Civil Action No. 05-1555 (RCL) Petitioners, v. BARACK H. OBAMA, President of the United States, et al., Respondents. MEMORANDUM OF LAW IN SUPPORT OF PETITIONER’S MOTION FOR JUDGMENT ON HIS PETITION FOR A WRIT OF HABEAS CORPUS INTRODUCTION Pursuant to the Supreme Court decision in Hamdi v. Rumsfeld, Respondents may only detain Petitioner for the purpose of preventing him from returning to the battlefield. Petitioner’s long-term severe mental illness and physical illnesses make it virtually impossible for him to engage in hostilities were he to be released, and both domestic law and international law of war explicitly state that if a detainee is so ill that he cannot return to the battlefield, he should be repatriated. When interpreted in accordance with domestic law and the principles of international law, the Authorization for the Use of Military Force (“AUMF”) does not permit the continued detention of Mr. Idris. His petition for a writ of habeas corpus should be granted and Respondents should be ordered Case 1:05-cv-01555-RCL Document 270-1 Filed 06/28/13 Page 2 of 14 to take all necessary and appropriate diplomatic steps to facilitate his immediate repatriation to Sudan. BACKGROUND A. Procedural History Petitioner’s petition for habeas corpus was filed pro se with the Court on August 2, 2005. Dkt. No. 1. Counsel was appointed to represent Petitioner in November 2005. Minute Order dated November 9, 2005. In meetings with counsel in 2008, Petitioner was completely non-communicative. In January 2009, based on Petitioner’s continuing lack of communication and other behavior which, in counsel’s non-medical opinion, was indicative of mental illness, counsel moved for the appointment of Petitioner’s brother as next friend. Dkt. No. 158. In February 2009, Petitioner’s counsel filed an emergency motion for a psychological evaluation of Petitioner and for access to his medical records. Dkt. No. 169. In connection with those motions, the Court ordered an evaluation of Petitioner by a military psychiatrist, who submitted a forensic evaluation dated April 21, 2009 (the “Forensic Evaluation”) (redacted copy attached hereto as Exhibit A).1 The forensic evaluation represents the most complete information available to counsel for Petitioner regarding Petitioner’s health. Counsel for Respondents provided a brief update on Petitioner’s health via email on March 7, 2013 (the “March 2013 Report”), which is attached hereto as Exhibit B. 1 A redacted copy of the Forensic Evaluation is attached as an exhibit because the identities of the medical personnel disclosed in the document have been designated by Respondents as protected information. 2 Case 1:05-cv-01555-RCL Document 270-1 Filed 06/28/13 Page 3 of 14 In November 2009, Petitioner was cleared for transfer by the Review Panel of the Guantanamo Review Task Force. See Dkt. No. 264 (Notice filed by Respondents that Petitioner’s transfer status was no longer deemed protected information). On December 18, 2009, the Court granted under seal Respondents’ motion to stay the case based on Petitioner’s transfer status and allowed either party to move “for cause shown” to lift the stay. See Dkt. No. 234; Dkt. No. 269 (unsealing the Order staying the action). On June 11, 2013, the Court granted Petitioner’s unopposed motion to lift the stay so that Petitioner could file this motion for judgment. Dkt. No. 269. B. Petitioner Has Suffered From Severe Mental and Physical Illness For Many Years Soon after Petitioner was brought to Guantanamo in January 2002, he was diagnosed with schizophrenia and during the course of his detention has developed a number of serious physical conditions. Forensic Evaluation at 3-4, 7. In 2009, the military psychiatrist observed that Petitioner’s thought processes and speech were “grossly disorganized” and that he suffers from auditory and visual hallucinations which “command[] a great deal of his limited attention.” Id. at 7. The military psychiatrist concluded that Petitioner was “operating in a delusional reality system, with little foundation in his real-world circumstances” and that he lacked “focus and attention to his actual surroundings” and instead gave his “ongoing attention to and focus on internal stimuli.” Id. at 8. In the opinion of the military psychiatrist, Petitioner’s mental illness 3 Case 1:05-cv-01555-RCL Document 270-1 Filed 06/28/13 Page 4 of 14 limited his ability to communicate because he was incoherent and unable “to effectively communicate either verbally or with non-verbal techniques.” Id.2 In 2009, Petitioner was also suffering from several long-term medical conditions which limited his mobility and activities. In the Forensic Evaluation, the military psychiatrist noted that Petitioner was morbidly obese and suffered from pitting edema (an abnormal accumulation of liquid which results in swelling) and from problems with his circulation, digestion, joint flexibility, blood sugar levels, and blood pressure. Id. at 3, 7. In the intervening years, Petitioner’s mental and physical condition has deteriorated. When counsel met with him, he was frequently non-communicative and appeared to have gained more weight. In March 2013, counsel for Petitioner received an update on his mental and physical condition from counsel for Respondents. According to that report, he continues to suffer from schizophrenia, disorganized type and has “been observed to display disorganized behavior such as wearing underwear on his head, whispering to himself, moving his mouth as if he is responding to internal stimuli, and laughing and singing out of context. He has also exhibited disorganized, incoherent, and tangential thought process and nonsensical speech.” March 2013 Report. According to Respondents, since 2009, Petitioner has refused medication for schizophrenia. Id.; Forensic Evaluation at 4-7 (reflecting a pattern of Petitioner refusing medication for his mental illness while at Guantanamo). 2 The descriptions of Petitioner’s behavior in the Forensic Report are consistent with counsel’s observations of Petitioner. 4 Case 1:05-cv-01555-RCL Document 270-1 Filed 06/28/13 Page 5 of 14 The concerns about Petitioners’ blood sugar level that were noted by the military psychiatrist in 2009 have now become diabetes and Petitioner also has “hyperlipidemia” (significantly heightened lipid levels). March 2013 Report. In addition, the March 2013 Report stated that Petitioner had been hospitalized since February 16, 2013, both for a foot infection and because other detainees had grown less tolerant of his “psychotic behavior.” Id. ARGUMENT I. The Government Does Not Have An Unfettered Right To Detain Petitioner A. The Government May Detain Petitioner Solely To Prevent Him From Returning To The Battlefield The government’s right to detain Mr. Idris is based on the Authorization for the Use of Military Force (“AUMF”), which permits the use of “all necessary and appropriate force” against “nations, organizations, or persons” who planned the September 11, 2011 terrorist attacks and those who harbored them. AUMF, Pub. L. 10740, § 2(a), 115 Stat. 224, 224 (2001). In Hamdi v. Rumsfeld, relying on “universal agreement and practice” in international law, the Supreme Court interpreted the AUMF as authorizing the detention of individuals subject to the AUMF for the duration of the conflict because detention “is so fundamental and accepted an incident of war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.” 542 U.S. 507, 518 (2004). However, the Supreme Court concluded that detention is permitted only for the limited purpose of “prevent[ing] captured individuals from returning to the field of battle 5 Case 1:05-cv-01555-RCL Document 270-1 Filed 06/28/13 Page 6 of 14 and taking up arms once again.” Id. at 518-519 (citing Yasmin Naqvi, Doubtful Prisoner-of-War Status, 84 Int'l Rev. Red Cross 571, 572 (2002)); see also Clark v. Martinez, 543 U.S. 371 (2005) (inadmissible alien may not be detained indefinitely but may only be detained for the period “reasonably necessary” to fulfill the purpose of the underlying statute); Zadvydas v. Davis, 533 U.S. 678 (2001). Such detention is not penal and “the object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from then on must be removed as completely as practicable from the front, treated humanely and in time exchanged, repatriated or otherwise released.” In re Territo, 156 F.2d 142, 145 (9th Cir. 1946) (quoted in Hamdi, 542 U.S. at 518) (emphasis added). The determination of whether detention is justified should look at the individual circumstances of the detainee, because “the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers.” Hamdi, 542 U.S. at 535-536 (Souter, J., concurring). B. Domestic Law and The International Law Of War Recognize That Seriously Ill Detainees Should Be Repatriated In determining the parameters of detention under the AUMF, the Supreme Court looked to “longstanding law-of-war principles.” Hamdi, 542 U.S. at 521. The United States Circuit Court for the District of Columbia has also held that domestic law may inform a determination of whether an individual can be detained. See Al Warafi v. Obama, No. 11 Civ. 5276, 2013 WL 2278201, at * 2 (D.C. Cir. May 24, 2013). Domestic law and international law both recognize that under specific circumstances, 6 Case 1:05-cv-01555-RCL Document 270-1 Filed 06/28/13 Page 7 of 14 detainees should be repatriated prior to the end of hostilities. Specifically, both Army Regulation 190-8 and the Third Geneva Convention recognize that an individual detainee should be repatriated if he is seriously ill (or injured) and therefore cannot return to the hostilities. See Dep’t of the Army, Army Reg. 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees, and Other Detainees (Oct. 1, 1997) (“Regulation 190-8”), ch. 3, § 12; Geneva Convention Relative to the Treatment of Prisoners of War art. 10910, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (“Third Geneva Convention”). Here, Petitioner’s significant mental and physical illnesses would make it impossible for him to “return to the battlefield”3 and as his detention therefore serves no legitimate purpose, there is no basis for his continued detention. 1. Army Regulation 190-8 Requires The Repatriation Of Seriously Ill Detainees Regulation 190-8 is domestic law, applicable to all branches of the military, which “implements international law, both customary and codified, relating to EPWs [enemy prisoners of war] . . . and ODs [other detainees]4 which includes those persons held during military operations other than war.” Regulation 190-8 at ch.1, §1(b); see also 3 Petitioner’s activities prior to his detention are not at issue in this motion. Petitioner does not concede that he ever participated in the “battle” (and it would therefore be impossible for him to “return” to the battlefield), but nevertheless uses that formulation because of its use in the relevant opinions and legal analysis. 4 The term “Other Detainees” is defined as “[p]ersons in the custody of the U.S. Armed Forces who have not been classified as an EPW [enemy prisoner of war] (article 4, GPW), RP [retained person] (article 33, GPW), or CI [civilian internee] (article 78, GC).” Regulation 190-8 Appendix B, Section II “Terms.” Regulation 190-8 requires that Other Detainees be treated as EPWs until a legal status is ascertained by competent authority. Id. 7 Case 1:05-cv-01555-RCL Document 270-1 Filed 06/28/13 Page 8 of 14 Al Warafi, 2013 WL 2278201, at *2 (Guantanamo detainee may invoke Regulation 190-8 “to the extent that the regulation explicitly establishes a detainee’s entitlement to release from custody”). With respect to sick and wounded prisoners, Regulation 190-8 provides that: The following EPW and RP [“Retained Personnel”] are eligible for direct repatriation: …. (2) Sick or wounded EPW and RP whose conditions have become chronic to the extent that prognosis appears to preclude recovery in spite of treatment within 1 year from inception of disease or date of injury. Regulation 190-8, ch.3, § 12(l)(2) (emphasis added).5 When interpreted in accordance with Regulation 190-8, the AUMF does not authorize the continued detention of a severely ill detainee whose “prognosis appears to preclude recovery in spite of treatment within 1 year from inception of disease or date of injury” and whose detention therefore does not serve the purpose of preventing his return to the battlefield. 2. The Third Geneva Convention Requires The Repatriation Of Seriously Ill Detainees In addition to domestic law, it is appropriate to look to “longstanding law-of-war principles” to assist in determining the rights of Guantanamo detainees. See Hamdi, 542 5 Regulation 190-8 also calls for the establishment of a Mixed Medical Commission to determine whether prisoners are eligible for repatriation. Army Regulation 190-8 at ch. 3, §12(a)(2). However, the Mixed Medical Commission need not assess prisoners who are eligible for direct repatriation. Id. at ch. 3, § 12(k)(2). To the best of counsel’s knowledge, no Mixed Medical Commission has been established for the detainees at Guantanamo. 8 Case 1:05-cv-01555-RCL Document 270-1 Filed 06/28/13 Page 9 of 14 U.S. at 521; Hamdan v. Rumsfeld, 548 U.S. 557, 630 (2006) (“Common Article 3 [of the Geneva Conventions] . . . affords some minimal protection . . . . to individuals associated with neither a signatory nor even a nonsignatory ‘Power’ who are involved in a conflict ‘in the territory of’ a signatory.”). Petitioner is not directly invoking the protection of the Geneva Conventions, see Military Commissions Act of 2006, Pub. L. 109-366, § 5(a), Oct. 17, 2006, 120 Stat. 2631, but is instead arguing that the government cannot meet its burden of establishing authority to continue to detain Petitioner given the limits on detention in the Third Geneva Convention, as an articulation of longstanding international law. The government has taken a similar position: “Principles derived from law-of-war rules governing international armed conflicts, therefore, must inform the interpretation of the detention authority Congress has authorized for the current armed conflict.” Respondents’ Mem. Regarding The Government’s Detention Authority Relative To Detainees Held At Guantanamo Bay, In Re Guantanamo Bay Detainee Litigation, Misc. No. 08-442 (TFH) (D.D.C. March 13, 2009) 1 (Dkt. No. 1689) (attached hereto as Exhibit C); id. 6, 9 (citing to the Third Geneva Convention). The Third Geneva Convention requires that certain prisoners be repatriated directly to their home countries: (1) Incurably wounded and sick whose mental or physical fitness seems to have been gravely diminished. (2) Wounded and sick who, according to medical opinion, are not likely to recover within one year, whose condition requires treatment and whose mental 9 Case 1:05-cv-01555-RCL Document 270-1 Filed 06/28/13 Page 10 of 14 or physical fitness seems to have been gravely diminished. (3) Wounded and sick who have recovered, but whose mental or physical fitness seems to have been gravely and permanently diminished. Third Geneva Convention, art. 110. This repatriation requirement is grounded in the principle that seriously ill detainees “are no longer likely to take part in hostilities against the Detaining Power.” 1 Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law: Rules 345 (Cambridge Univ. Press 2005). In fact, the Additional Protocol I to the Geneva Conventions defines the "wounded" and "sick" as “persons, whether military or civilian, who, because of trauma, disease or other physical or mental disorder or disability, are in need of medical assistance or care and who refrain from any act of hostility.” Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 Aug. 1949 and Relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I), art. 8, 1125 U.N.T.S. 3. This status supersedes a designation as “combatant,” and “lasts as long as the disease or the wound keeps the individual hors de combat.” Anicée Van Engeland, Civilian or Combatant? A Challenge for the Twenty-First Century 48 (Oxford Univ. Press 2011). The government’s detention authority is cabined by well-accepted provisions of the law of war that direct that a person so debilitated by disease or injury as to no longer be able to participate in the conflict must be repatriated, and the government has accepted, as a general matter, that its authority is limited by those principles of the law of war. 10 Case 1:05-cv-01555-RCL Document 270-1 Filed 06/28/13 Page 11 of 14 C. In Basardh, The Court Ordered Petitioner Released Because There Was Little Risk Of Him Returning To The Battlefield Although not apparently related to the health of the detainee, Basardh v. Obama, 612 F.Supp.2d 30 (D.D.C. 2009), is precisely analogous to this situation. In Basardh, the court found that because the AUMF is designed to prevent future acts of international terrorism and its interpretation is informed by the principles of the laws of war, “the AUMF does not authorize the detention of individuals beyond that which is necessary to prevent those individuals from rejoining the battle, and it certainly cannot be read to authorize detention where its purpose can no longer be attained.” Id. at 34. The court further concluded that Basardh’s prospect of rejoining the entities defined in the AUMF was “at best, a remote possibility” and therefore granted Basardh’s habeas petition. Id. at 35. Basardh was transferred from Guantanamo to Spain in 2010. The Guantanamo Docket, N.Y. Times, http://projects.nytimes.com/guantanamo/detainees/252-yasimuhammed-basardah (last visited Jun. 27, 2013). II. The Likelihood Of Petitioner Returning To The Battlefield Is Remote The substantial deterioration of Petitioner’s mental and physical health during his years of detention at Guantanamo would make it nearly impossible for him to engage in hostilities if he were to be transferred to Sudan, especially given the limited availability of psychiatric care in that country. According to Dr. Stephen N. Xenakis, a psychiatrist and retired Brigadier General in the United States Army, Petitioner has a poor prognosis. Given his significant mental illness, he will likely continue to deteriorate and suffer “worsening cognitive decline” and 11 Case 1:05-cv-01555-RCL Document 270-1 Filed 06/28/13 Page 12 of 14 decreasing ability to care for himself. See Exhibit D, Declaration of Stephen X. Xenakis, dated June 26, 2013 (“Xenakis Declaration”) ¶ 10. Individuals like Petitioner with a diagnosis of Disorganized Type Schizophrenia “are unable to initiate or engage in activities that require goal orientation or execute even simple work tasks.” Id. ¶ 13. In addition, Petitioner is obese and has been diagnosed with diabetes and is likely to develop other debilitating medical conditions as he ages. Id. ¶ 11. According to Dr. Xenakis, it is “inconceivable that [Petitioner] could engage in any combatant action. Id. ¶ 14. While medication can “sometimes help control bizarre behavior, hallucinations, and disorganized thinking, [it can] neither cure nor resolve the disorder,” see Xenakis Declaration ¶ 10, and according to Respondents, Petitioner is currently refusing to take medication and has regularly refused to take medication while detained at Guantanamo. March 2013 Report; Forensic Evaluation at 4-7. Although Petitioner’s family is eager to welcome him home to Sudan and to care for him, Sudan has limited mental health services and access to related medication, so unfortunately, there is little likelihood that Petitioner’s condition would improve if he were transferred to Sudan. According to the World Health Organization, there is no health insurance in Sudan and the cost of antipsychotic medication is 27% of the minimum daily wage (though it is available free of charge in emergency situations). Id. at 5.6 There are only 6 Given Petitioner’s mental and physical condition, he is highly unlikely to obtain a job in Sudan, a country where unemployment is estimated at 20%. The World Factbook: Sudan, Central Intelligence Agency (May 15, 2013), https://www.cia.gov/library/publications/the-world-factbook/geos/su.html. 12 Case 1:05-cv-01555-RCL Document 270-1 Filed 06/28/13 Page 13 of 14 seventeen outpatient mental health facilities in Sudan, two of which are exclusively for children. Exhibit E, WHO-AIMS Report on Mental Health System in Sudan, WHO and Ministry of Health, Khartoum, Sudan, 2009 at 10. On average, patients are seen in such facilities 1.5 times; there is a lack of information regarding patients’ medical history at the facilities, there is no follow-up care in the community, and “the health services suffer from acute shortages in trained personnel.” Id. at 8, 10. In addition to his significant health issues, Petitioner is also socially isolated. The March 2013 Report stated that Petitioner had been transferred to the hospital, in part because “[h]is fellow detainees have grown weary of tolerating his psychotic behavior.” Exhibit B. Such frustration provides another independent reason why it would be impossible for Petitioner to rejoin the hostilities. Given the precarious state of Petitioner’s mental and physical condition, he could not realistically engage in hostilities if he were to be released. His longstanding mental and physical illnesses would qualify him for repatriation under both Regulation 190-8 and the Third Geneva Convention, and his detention is not necessary to prevent his return to the battlefield. His detention is therefore not authorized by the AUMF. 13 Case 1:05-cv-01555-RCL Document 270-1 Filed 06/28/13 Page 14 of 14 CONCLUSION For the reasons stated above, Petitioner respectfully requests that his petition for the writ of habeas corpus be granted and Respondents ordered to take all necessary and appropriate diplomatic steps to facilitate his immediate repatriation to Sudan. Dated: June 28, 2013. Respectfully submitted, s/ Jennifer R. Cowan Jennifer R. Cowan, Esq. Debevoise & Plimpton LLP 919 Third Avenue New York, New York 10022 (212) 909-6000 14