Published April 15, 2013
A federal judge Monday denied an emergency motion for relief filed by a Guantanamo Bay prisoner on a hunger strike, despite pleas from the man's lawyer who says his client is dying.
U.S. District Judge Thomas Hogan ruled Monday that he didn't have jurisdiction over the case filed by Yemeni prisoner Musaab al-Madhwani. Hogan pointed to a provision of the Military Commissions Act which bars judicial review of claims made by detained enemy combatants regarding their conditions of confinement.
The prisoner and others in the hunger strike originally claimed that they were being denied drinking water and that temperatures in the prison had been kept at "extremely frigid" levels -- which the government denied. But the claim was expanded to include the allegation that Guantanamo officials had shown "deliberate indifference" to the prisoners' serious medical needs.
Although the case was technically about just one detainee, it was clearly about the continued use of Guantanamo to house terrorism suspects, despite President Barack Obama's promise to close the prison. When one of al-Madhwani's lawyers, Darold Killmer, mentioned the alleged mistreatment of other detainees, Hogan responded, "This is not a class-action."
At the end of the roughly one-hour hearing, Hogan noted that al-Madhwani voluntarily participated in the hunger strike, adding that the prisoner "self-manufactured" his health situation.
Earlier, Killmer, told the judge, "Mr. al-Madhwani is dying." Killmer pointed to an affidavit filed by Dr. Stephen N. Xenakis, a physician who interviewed the prisoner on the phone, who concluded that the prisoner's "life may be in imminent danger."
Xenakis wrote that after being treated with intravenous fluids following a collapse last week, the prisoner was placed in solitary confinement and has not received daily monitoring of his medical condition.
"Given the gravity of his condition, these failures constitute deliberate indifference to his obvious serious medical needs," Xenakis wrote.
Killmer claimed that putting him in solitary confinement was "retaliation" against al-Madhwani for participating in the hunger strike.
But the judge raised jurisdiction issues from the get-go. Killmer argued that a Supreme Court decision which established detainees' constitutional right to challenge their confinement gave the judge jurisdiction in this case. If al-Madhwani dies, Killmer said, he doesn't get to exercise that right.
But Justice Department lawyer Ronald Wiltsie said that there have been hunger strikes before, and that no hunger striker ever died at Guantanamo. He said the government will step in to save al-Madhwani's life. He also said the government doesn't concede that anything was done to retaliate against al-Madhwani.
Lawyers for prisoners say the hunger strike began around Feb. 6 to protest the virtual halt in releases under Obama as well as what they say is a tightening of restrictions and intrusive searches of their Qurans. According to the lawyers, most of the 166 prisoners are participating in the hunger strike.
U.S. officials also say there has been no tightening of restrictions and that the Qurans have been searched in a respectful way by Muslim translators looking for contraband such as medications or potential weapons. The military said 43 prisoners were classified as hunger strikers under a definition that includes missing nine consecutive meals.
Killmer told reporters after the hearing that he will either file an appeal or a new petition.
"We're going to keep fighting," he said, adding that several other detainees are close to death as well. He said that Obama doesn't want to take responsibility for what's happening at the prison.
Last week, White House spokesman Jay Carney said that Obama is committed to closing Guantanamo. But asked if Obama is following the hunger strike, Carney said he hadn't had a conversation with him about it.
Obama announced within days of his inauguration in January 2009 that he wanted to shutter the facility that houses terror suspects, but Republicans and some Democrats in Congress have resisted.
In 2010, Hogan tossed out most of the government's evidence against al-Madhwani on grounds his confessions were coerced, allegedly by U.S. forces, before he became a prisoner at Guantanamo. But Hogan ruled that statements he made during two military administrative hearings at the U.S. detention center in Cuba, where he was assisted by a personal representative, were reliable and sufficient to justify holding the detainee.
According to his lawyers, Musaab al-Madhwani is in his 11th year of imprisonment and has never been charged with a crime.