Abdulrazzaq v. Trump

• Court: District Court, District of Columbia
• Decided: October 28, 2019
• Docket: Civil Action No. 2017-1928
• Status: Published

Opinion

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).

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.

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

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

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