Al-Qahtani v. Trump

• Decision Date: 06 March 2020
• Docket Number: Civil Action No. 05-1971 (RMC)
• Citation: 443 F.Supp.3d 116
• Parties: Mohammed AL-QAHTANI, Petitioner, v. Donald J. TRUMP, et al., Respondents.
• Court: U.S. District Court — District of Columbia

443 F.Supp.3d 116

Mohammed AL-QAHTANI, Petitioner,

v.Donald J. TRUMP, et al., Respondents.

Civil Action No. 05-1971 (RMC)

United States District Court, District of Columbia.

Signed March 6, 2020

Sandra L. Babcock, Cornell Law School, Ithaca, NY, J. Wells Dixon, Pardiss Kebriaei, Pro Hac Vice, Shayana Devendra Kadidal, Center for Constitutional Rights, Ramzi Kassem, City University of New York School of Law, New York, NY, Lawrence S. Lustberg, Gibbons P.C., Newark, NJ, for Petitioner.

Daniel Mark Barish, James J. Gilligan, Kristina Ann Wolfe, Mary Elizabeth Carney, Terry Marcus Henry, David Hugh White, Julia Alexandra Heiman, Kathryn Celia Davis, Paul A. Dean, Robert J. Prince, U.S. Department of Justice, Washington, DC, for Respondents.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, United States District Judge

Petitioner Mohammed al-Qahtani is a national of Saudi Arabia who has been held at the United States Naval Station, Guantanamo Bay, for the past 18 years. In October 2010, Mr. al-Qahtani was granted a stay of his 2005 petition for a writ of habeas corpus seeking release. His counsel have now moved for an examination by a mixed medical commission to determine if he is entitled to direct repatriation pursuant to Army Regulation 190-8, Section 3-12, which deals with the repatriation of sick and wounded

prisoners. Dept. of the Army, Army Reg. 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees, and Other Detainees, ch.3, § 12 (Oct. 1, 1997). The government opposes his motion.

I. BACKGROUND

Mr. al-Qahtani was taken into U.S. custody abroad during the hostilities authorized after September 11, 2001 by the Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, § 2(a), 115 Stat. 224. "That authority includes detaining ‘those who are part of forces associated with Al Qaeda or the Taliban.’ " Qassim v. Trump , 927 F.3d 522, 525 (D.C. Cir. 2019) (citing Al Madhwani v. Obama , 642 F.3d 1071, 1074 (D.C. Cir. 2011) ). Mr. al-Qahtani was transferred to Guantanamo Bay in February 2002. He has been declared an enemy combatant by the United States. Mr. al-Qahtani alleges that he was subjected to torture during his detention at Guantanamo Bay, for which he says that he was repeatedly hospitalized and placed in a life-threatening condition. See Pet'r Mot. [Dkt. 369] at 3. His allegation is supported by the then-convening authority of the Department of Defense (DOD) Military Commissions, Susan J. Crawford, who determined in 2009 that Mr. al-Qahtani would not be subjected to a capital trial because of the torture he had endured at the hands of the U.S. military. See id. at 3 n.4 (citing Bob Woodward, Detainee Tortured, Says U.S. Official , The Washington Post (Jan. 14, 2009), http://www.heal-online.org/torture011409.pdf (quoting Susan J. Crawford)). The government does not contest this public information.

In addition, Mr. al-Qahtani states that he has a history of mental illness, which was known to him and his family before he was taken into U.S. custody. See Ex. C, Pet'r Mot., Report of Dr. Emily A. Keram (June 5, 2016) [Dkt. 369-1] (Keram Rep.); Ex. D, Pet'r Mot., Suppl. Decl. of Dr. Emily A. Keram (July 12, 2016) [Dkt. 369-1] (Keram Suppl. Decl.); Ex. E, Pet'r Mot., Second Suppl. Decl. of Dr. Emily A. Keram (Dec. 2, 2016) [Dkt. 369-1] (Keram Second Suppl. Decl.). Dr. Emily Keram, an independent medical expert retained by counsel for Mr. al-Qahtani, has confirmed this prior illness through interviews of Mr. al-Qahtani at Guantanamo Bay, telephonic interviews with his family in Saudi Arabia, and review of previous records of psychiatric evaluations conducted on Mr. al-Qahtani.

Dr. Keram reports that Mr. al-Qahtani was mentally ill before he is alleged to have participated in terrorist activities and before his imprisonment and torture at Guantanamo Bay. Keram Rep. at 3-5. Prior to entering U.S. custody, Mr. al-Qahtani was diagnosed with schizophrenia

, major depression, and a possible neurocognitive disorder due to a traumatic brain injury. Id. at 3. As a child, Mr. al-Qahtani was involved in a car accident and suffered a head injury. Id. at 5. After that incident he suffered from "episodes of extreme behavioral dyscontrol" and "auditory hallucinations." Id. at 3. In one incident he was found by Riyadh police in a dumpster and in another he threw a cell phone out of a moving vehicle because "he believed it was making him ‘tired’ " and affecting his mind. Id. at 3-4. In 2000, Mr. al-Qahtani was committed to the psychiatric unit of a hospital in Mecca after he attempted to throw himself into moving traffic. Id. at 4. During this hospitalization he expressed suicidal thoughts and was prescribed antipsychotic medication. Id.

In 2002, when Mr. al-Qahtani was first detained at Guantanamo Bay but before he was tortured, U.S. government officials observed "behaviors consistent with psychosis

, such as talking to nonexistent people." Pet'r Mot. at 5; see also Letter re: Suspected Mistreatment of Detainees, from FBI Deputy Assistance Director, Counterterrorism Division, T.J. Harrington (July 14, 2006), https://www.aclu.org/sites/default/files/torturefoia/released/FBI_4622_4624.pdf. While at Guantanamo Bay, Mr. al-Qahtani was subjected to solitary confinement, sleep deprivation, extreme temperature and noise exposure, stress positions, forced nudity, body cavity searches, sexual assault and humiliation, beatings, strangling, threats of rendition, and water-boarding. Keram Rep. at 6. Dr. Keram concluded that these conditions were "severely cruel, degrading, humiliating, and inhumane" and "would have profoundly disrupted and left long-lasting effects on a person's sense of self and cognitive functioning ‘even in the absence of pre-existing psychiatric illness.’ " Pet'r Mot. at 5 (quoting Keram Rep. at 6-7). Dr. Keram opines that Mr. al-Qahtani's treatment at Guantanamo Bay exacerbated his psychological ailments, to which he was particularly vulnerable due to his pre-existing disorders.

In addition to his pre-existing psychiatric conditions, Dr. Keram diagnosed Mr. al-Qahtani with severe Post-Traumatic Stress Disorder

(PTSD) as a result of the treatment, interrogation, and imprisonment at Guantanamo Bay. Keram Rep. at 3, 7. Dr. Keram believes that Mr. al-Qahtani will likely require lifelong mental health care through "a culturally-informed multi-disciplinary approach," including "supportive psychotherapy, cognitive-behavioral therapy, skills-based therapy, and psychotropic medication." Id. at 8. As a result, she has concluded that Mr. al-Qahtani cannot receive effective treatment while he remains in custody at Guantanamo Bay, due to, among other factors, his lack of trust in the medical and mental health professionals at Guantanamo Bay. Id. at 9. Dr. Keram recommends repatriation to Saudi Arabia because she believes Mr. al-Qahtani would benefit from being close to his family who supported him when he dealt with mental illness in the past. Id. The Saudi Ministry of Interior indicated in 2015 that Saudi Arabia would welcome back Mr. al-Qahtani and provide him with the rehabilitation and aftercare that he needs. See Ex. F, Pet'r Mot., Letter from Mohammed A. Al-Muttairi (Aug. 16, 2015) [Dkt. 369-1].

In October 2005, Mr. al-Qahtani filed a Petition for Writ of Habeas Corpus. See Petition [Dkt. 1]. Respondents filed an amended factual return in October 2008, stating that Mr. al-Qahtani is detained pursuant to the AUMF. Notice of Am. Factual Return [Dkt. 73]. The Petition remains outstanding as Mr. al-Qahtani has yet to file a Traverse but has instead sought repeated stays. See 10/12/2010 Minute Order; 9/30/2011 Minute Order. Thus, the basis for the United States to detain Mr. al-Qahtani as part of the forces associated with al-Qaeda or the Taliban has not been disputed.

On April 28, 2017, Mr. al-Qahtani applied to the Department of Defense for repatriation or, in the alternative, an examination by a mixed medical commission. See Ex. A, Pet'r Mot., Pet'r Letter Requesting Mixed Medical Commission (April 28, 2017) [Dkt. 369-1] (Apr. 2017 Letter). The government denied this request on June 30, 2017. See Ex. B, Pet'r Mot., Resp't Letter Denying Mixed Medical Commission (June 30, 2017) [Dkt. 369-1] (DOJ Letter). On August 8, 2017, Mr. al-Qahtani filed the instant motion to compel examination by mixed medical commission. See Pet'r Mot. Respondents opposed, see Resp't's Opp'n to Pet'r's Mot. to Compel [Dkt. 370] (Opp'n), and Mr. al-Qahtani replied. See Pet'r's Reply in Further Supp. of Mot. to Compel [Dkt. 371] (Reply). The Court held oral argument on the motion on April 19, 2018. The motion is ripe for review.

II. LEGAL STANDARD

In exercising its habeas jurisdiction over detainees at Guantanamo Bay, see Boumediene v. Bush , 553 U.S. 723, 777, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) ; Rasul v. Bush , 542 U.S. 466, 484, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004) ; Kiyemba v. Obama (Kiyemba II) , 561 F.3d 509, 512 n.2 (D.C. Cir. 2009), the Judicial Branch "serv[es] as an important ... check on the Executive's discretion in the realm of detentions." Hamdi v. Rumsfeld , 542 U.S. 507, 536, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality opinion).¹ Emblematic is this Circuit's recent detainee jurisprudence. While the D.C. Circuit "has repeatedly held that under the [AUMF], individuals may be detained at Guantanamo so long as they are determined to have been part of Al Qaeda, the Taliban, or associated forces, and so long as hostilities are ongoing," Aamer v. Obama , 742 F.3d 1023, 1041 (D.C. Cir. 2014) ( Aamer I ) (citing Al-Bihani v. Obama , 590 F.3d 866, 873-74 (D.C. Cir. 2010) ),² it has not hesitated to expand the scope of claims subject to habeas review, see id. at 1030 (finding that federal courts have subject-matter jurisdiction over challenges to conditions of confinement even though such claims "undoubtedly fall outside the historical core of the writ"). Similarly, the Circuit has determined that the scope of the Executive's detention...