UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________ ) MOHAMMED AL-QAHTANI, ) ) Petitioner, ) ) v. ) Civil Action No. 05-1971 (RMC) ) DONALD J. TRUMP, et al., ) ) Respondents. ) _________________________________ )
MEMORANDUM OPINION
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
1 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
2 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,
3 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
4 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 (2008); Rasul v. Bush, 542 U.S. 466, 484 (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 (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
1 The legal status of habeas petitions from detainees at Guantanamo Bay “has a long and winding history.” Qassim, 927 F.3d at 526. The Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2739, intended to strip such habeas cases from the federal courts. Hamden v. Rumsfeld, 548 U.S. 557 (2006), reinstated jurisdiction over habeas petitions then pending. Id. at 575-84. Congress then passed the Military Commissions Act of 2006 for the same purpose. Pub. L. No. 109-366, 120 Stat. 2600. The relevant section of that law was, as described infra in the text, declared unconstitutional by Boumediene. 2 Aamer I concerned a force-feeding protocol that the government instituted in response to hunger strikes by detainees at Guantanamo. See 742 F.3d at 1026. That litigation, which was brought by Mr. Aamer and two other detainees, presented the following issue: whether
5 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 authority under the AUMF is not sui generis but is constrained by
domestic caselaw and statutes. See id. at 1031-38 (reviewing habeas challenges by American
prisoners to their conditions of confinement); Al Warafi v. Obama, 716 F.3d 627, 629 (D.C. Cir.
2013) (Al Warafi II) (finding Army Regulation 190-8 applicable to detainees), cert. denied, 572
U.S. 1100 (2014); Al-Bihani, 590 F.3d at 871-72 (resolving detainee’s challenge to legitimacy of
his detention by “look[ing] to[] the text of relevant statutes and controlling domestic caselaw”).
The question before this Court is whether Army Regulation 190-8 applies to Mr.
al-Qahtani, such that his physical and mental health require the United States to repatriate him
immediately. Army Regulation 190-8 finds its principal guidance in the Geneva Conventions, 3
of which the Third Geneva Convention is relevant here. Accordingly, an overview of the
provisions of the Third Geneva Convention and Army Regulation 190-8 is necessary.
Guantanamo detainees could utilize habeas corpus to challenge the government’s force-feeding practices. Id. As discussed infra, the D.C. Circuit answered this question in the affirmative. 3 The Geneva Conventions are comprised of four multilateral treaties, see Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 (First Geneva Convention); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 (Second Geneva Convention); Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (Third Geneva Convention); and Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (Fourth Geneva Convention), and three Additional Protocols. The United States has ratified all four Conventions and Additional Protocol III. See U.S. Dep’t of State, Treaties in Force 465- 66 (2013).
6 A. The Third Geneva Convention
The Third Geneva Convention sets forth the parameters by which signatories
agreed to detain, treat, and, ultimately, release prisoners of war. Article 4 defines prisoners of
war as follows:
1) Members of the armed forces of a [p]arty to the conflict as well as members of militias or volunteer corps forming part of such armed forces;
2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a [p]arty to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil[l] the following conditions: a) that of being commanded by a person responsible for his subordinates; b) that of having a fixed distinctive sign recognizable at a distance; c) that of carrying arms openly; d) that of conducting their operations in accordance with the laws and customs of war.
3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the [d]etaining [p]ower.
4) Persons who accompany the armed forces without actually being members thereof, . . . provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose an identity card . . . .
5) Members of crews, . . . who do not benefit by more favourable treatment under any other provisions of international law.
6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
7 Third Geneva Convention, 6 U.S.T. 3316, art. 4. Where there is doubt as to whether a captured
person qualifies as a prisoner of war, Article 5 requires the individual to be accorded such status
until a “competent tribunal” determines otherwise. Id., art. 5.
In general, the Third Geneva Convention ensures that persons designated as
prisoners of war are handled humanely and receive appropriate treatment while detained. This
overarching principle includes repatriation upon becoming seriously injured or ill. Article 110 of
the Third Geneva Convention obligates signatories to return a prisoner of war to his home
country if he is (1) “[i]ncurably wounded and sick [such that his] mental or physical fitness
seems to have been gravely diminished”; (2) “[w]ounded and sick . . . [and] not likely to recover
within one year”; and (3) recovered from being “[w]ounded and sick . . . , but [his] mental and
physical fitness seems to have been gravely and permanently diminished.” Id., art. 110. The
Commentary to the Third Convention explains that generally “mixed medical commissions,”
which are discussed in Articles 112 and 113, will evaluate the injuries and illnesses of prisoners
and make repatriation recommendations. 3 Int’l Comm. of the Red Cross, Commentary: Geneva
Convention Relative to the Treatment of Prisoners of War 515-17 (J. Pictet ed., 1960). 4 The
Commentary also notes that Article 110 obligates detaining powers to return prisoners of war
that fall into the aforementioned categories “before the end of hostilities.” Id. at 515.
B. Army Regulation 190-8
Despite its name, Army Regulation 190-8 has been adopted by the other military
services and applies across all U.S. military branches. See U.S. Dep’ts of the Army, Navy, Air
4 As the Supreme Court has explained, the “International Committee of the Red Cross is . . . the body that drafted and published the official commentary to the Conventions. Though not binding law, the commentary is . . . relevant in interpreting the Conventions’ provisions.” Hamdan, 548 U.S. at 619 n.48.
8 Force, & Marine Corps, Enemy Prisoners of War, Retained Personnel, Civilian Internees and
Other Detainees, Army Regulation 190-8 (1997), http://www.apd.army.mil/pdffiles/r190_8.pdf.
The Secretaries of the U.S. Army, Air Force, and Navy promulgated Army Regulation 190-8 to
“provide[] policy, procedures, and responsibilities for the administration, treatment, employment,
and compensation of . . . [persons] in the custody of the U.S. Armed Forces.” Id. § 1-1(a). In so
doing, the Regulation “implements international law, both customary and codified,” and
identifies the Geneva Conventions as “[t]he principal treaties relevant to [the] [R]egulation.” Id.
§ 1-1(b). It does not, however, alter the obligations of the United States under the Geneva
Conventions. Id. § 1-1(b)(4) (“In the event of conflicts or discrepancies between [the]
[R]egulation and the Geneva Conventions, the provisions of the Geneva Conventions take
precedence.”).
The manner in which Army Regulation 190-8 may apply to any particular
detainee turns on that person’s designation. Where an individual commits a belligerent or hostile
act in support of enemy armed forces and either claims prisoner of war status or doubt exists as
to such status, a “competent tribunal” determines the individual’s status under the Regulation.
Id. § 1-6(b). There are four “[p]ossible” designations that may result: (1) “enemy prisoner of
war,” which is a term co-extensive with the definition of prisoner of war set forth in Articles 4
and 5 of the Third Geneva Convention; (2) “retained personnel,” who are individuals who serve
in a medical or religious capacity, attached to enemy armed forces, or are staff on voluntary aid
societies; (3) “civilian internee,” who is a person interned for operational security or in
connection with an offense that s/he is believed to have committed against the detaining power;
or (4) “innocent civilian,” who is an individual who does not fall into any of these categories and
should be immediately released. Id. § 1-6(e)(10); see also id. at Glossary, Section II––Terms.
9 Army Regulation 190-8 further provides that “[p]ersons in the custody of the U.S. Armed Forces
who have not been classified as an [enemy prisoner of war] . . . , [retained personnel] . . . , or
[civilian internee] . . . shall be treated as [enemy prisoners of war] until a legal status is
ascertained by competent authority.” Id. at Glossary, Section II––Terms. The Regulation refers
to such unclassified individuals as “other detainees.” Id.
Pertinent to the instant litigation are the Regulation’s provisions addressing
repatriation due to illness or injury. Section 3-12 states that detainees who are, or are being
treated as, enemy prisoners of war or retained personnel are “eligible for direct repatriation” if
they are (1) “suffering from disabilities as a result of injury, loss of limb, paralysis, or other
disabilities, when these disabilities are at least the loss of a hand or foot, or the equivalent,” or
(2) are ill or injured and their “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.” Id. § 3-12(l). The Regulation provides that a mixed medical commission, upon
request, will determine whether a prisoner of war/retained person suffers from an illness or
injury that satisfies the criteria for repatriation. Id. § 3-12(c), (h). If the mixed medical
commission, which is comprised of a medical officer of the U.S. military and two physicians
from a neutral country, id. § 3-12(a)(2), determines that the detained individual should be
repatriated, then the United States must “carry out [that] decision[] . . . as soon as possible and
within 3 months of the time after it receives due notice of the decision[].” Id. § 3-12(f).
III. ANALYSIS
A. Jurisdiction
The United States Congress initially withdrew habeas jurisdiction and jurisdiction
over any other claims “relating to any aspect of the detention, transfer, treatment, trial, or
conditions of confinement” of Guantanamo Bay detainees. See 28 U.S.C. § 2241(e). However, 10 the Supreme Court held in Rasul that the federal habeas statute applies to foreign detainees held
at Guantanamo Bay. See 542 U.S. at 484; see also Qassim, 927 F.3d at 526. After Rasul, the
Court decided Boumediene, in which it determined that § 2241(e)(1) was unconstitutional and
extended habeas coverage to detainees at the U.S. Naval Station at Guantanamo Bay even though
it was not located within the 50 states. 553 U.S. at 798. However, Boumediene did not
reinstitute jurisdiction over the other actions related to the detention, transfer, treatment, trial, or
conditions of confinement. See Kiyemba II, 561 F.3d at 513; Aamer I, 742 F.3d at 1030 (“[I]f
petitioners’ claims do not sound in habeas, their challenges constitute an action other than habeas
corpus barred by § 2241(e)(2).”) (internal quotation marks omitted). While Boumediene did not
indicate exactly what habeas entailed, it did opine:
We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to “the erroneous application or interpretation” of relevant law. And the habeas court must have the power to order the conditional release of an individual unlawfully detained—though release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted. These are the easily identified attributes of any constitutionally adequate habeas corpus proceeding.
553 U.S. at 779 (internal citations omitted). “The habeas court must have sufficient authority to
conduct a meaningful review of both the cause for detention and the Executive’s power to
detain.” Id. at 783.
Respondents argue that the Court lacks jurisdiction to hear Mr. al-Qahtani’s
motion to compel a mixed medical commission because 28 U.S.C. § 2241(e)(2) “deprives courts
of jurisdiction to consider non-habeas claims of detainees such as [Mr. al-Qahtani]” and the
motion does not “sound in habeas” because it does not seek an order of release or challenge his
conditions of confinement. Opp’n at 13-15. Respondents posit that Mr. al-Qahtani’s motion for
a mixed medical commission is not a motion for release but, rather, a motion for a military 11 proceeding that might result in release. Mr. al-Qahtani argues that he is entitled to review by a
mixed medical commission and that a mixed medical commission will provide the factual basis
necessary for this Court to find that he is entitled to release. Therefore, Mr. al-Qahtani argues,
his request is for release through the mixed medical commission process.
The question presented is whether Mr. al-Qahtani’s request for a mixed medical
commission sounds in habeas. Respondents cite five cases for the proposition that motions for
conditional, potential, or speculative release do not sound in habeas. In Muhammad v. Close,
540 U.S. 749 (2004), an inmate brought an action under 42 U.S.C. § 1983 against a corrections
officer alleging the officer engaged in retaliatory disciplinary proceedings. The case was
dismissed by the Sixth Circuit for failure to exhaust administrative remedies. The Supreme
Court reversed and held that defendants may bring an action under the Civil Rights Act of 1871,
42 U.S.C. § 1983, to challenge grievance proceedings without first exhausting their
administrative habeas rights. Muhammad stated that “[c]hallenges to the validity of any
confinement or to particulars affecting its duration are the province of habeas corpus.” Id. at
750. However, a prisoner’s claim that “threatens no consequences for his conviction or the
duration of his sentence,” id. at 751, does not sound in habeas so that exhaustion of habeas
procedures is not required before litigation.
Wilkinson v. Dotson, 544 U.S. 74 (2005), decided a year later, involved a § 1983
challenge to the constitutionality of state parole procedures. The Supreme Court again held that
prisoners need not first exhaust habeas before bringing lawsuits that do not seek to reduce their
sentences or its particulars. Wilkinson traced the history of habeas exhaustion requirements and
explained that “the Court has focused on the need to ensure that state prisoners use only habeas
corpus . . . remedies when they seek to invalidate the duration of their confinement.” Id. at 81.
12 In 2011, the Supreme Court decided for a third time that a prisoner need not first
exhaust habeas proceedings before bringing a § 1983 claim, this time in the context of seeking
DNA testing. Skinner v. Switzer, 562 U.S. 521 (2011). Skinner noted in dicta that it “has found
no case, nor has the dissent, in which the Court has recognized habeas as the sole remedy, or
even an available one, where the relief sought would ‘neither terminate custody, accelerate the
future date of release from custody, nor reduce the level of custody.’” Id. at 534 (quoting
Wilkinson, 544 U.S. at 86 (Scalia, J., concurring)).
Respondents also cite two local cases. The D.C. Circuit has held that a federal
prisoner must rely on habeas “only if success on the merits will ‘necessarily imply the invalidity
of confinement or shorten its duration.’” Davis v. United States Sentencing Comm’n, 716 F.3d
660, 666 (D.C. Cir. 2013); see also id. at 665 (“Claims that ‘will not necessarily imply the
invalidity of confinement or shorten its duration’ are not at the ‘core’ of habeas and therefore
may be pursued through other causes of action.” (citations and emphasis omitted)). Because the
case involved an equal protection challenge to the Fair Sentencing Act of 2010, Pub. L. No. 111-
220, 124 Stat. 2372, Davis’s claim did not arise in habeas.
Finally, Judge Royce C. Lamberth of this District considered whether a
Guantanamo Bay detainee’s motion for review before a Periodic Review Board sounded in
habeas. A Periodic Review Board reviews each detainee’s status and determines whether to
recommend release. Judge Lamberth found that the motion did not sound in habeas because the
Periodic Review Board’s determination made release discretionary and, therefore, the district
court lacked jurisdiction. Salahi v. Obama, No. 05-569, 2015 WL 9216557 (D.D.C. Dec. 17,
2015). The discretion involved in the Periodic Review Board’s consideration of the detainee’s
status and the further discretion provided to the Secretary of Defense about whether to accept the
13 recommendation of the Periodic Review Board were essential to Judge Lamberth’s decision that
the request did not arise under habeas. 5 The evaluation conducted by a mixed medical
commission and the duty to carry out its finding are not similarly discretionary. See Army Reg.
190-8 § 3-12(f) (“The United States will carry out the decisions of the Mixed Medical
Commission as soon as possible and within 3 months of the time after it receives due notice of
the decisions.”).
Respondents focus on the Supreme Court’s statement that habeas might not even
be an available remedy in cases that do not truly implicate the duration or conditions of
confinement. See Skinner, 562 U.S. at 534 (noting in dicta that it “has found no case, nor has the
dissent, in which the Court has recognized habeas as the sole remedy, or even an available one,
where the relief sought would ‘neither terminate custody, accelerate the future date of release
from custody, nor reduce the level of custody’”). Respondents do not dispute that Mr. al-Qahtani
seeks an end to his U.S. custody because of his mental illness. They focus on the fact that his
request is for review by a mixed medical commission, which Respondents equate to review by a
Probation Commission or Periodic Review Board. Respondents argue that Mr. al-Qahtani’s
review by a mixed medical commission is similarly probabilistic and discretionary and,
therefore, does not sound in habeas.
Respondents’ argument ignores the structure and requirements of Army
Regulation 190-8. While the United States has not had the occasion to utilize a mixed medical
5 Salahi is usually cited for its clear statement that “the Due Process Clause of the Fifth Amendment[] does not apply to Guantanamo detainees.” 2015 WL 9216557, at *5. Salahi relied upon Kiyemba v. Obama (Kiyemba I), 555 F.3d 1022, 1026 (D.C. Cir. 2009), but a D.C. Circuit concurring opinion denying a motion for hearing en banc in Ali v. Trump, No. 18-5297, 2019 WL 850757, at *1-2 (D.C. Cir. Feb. 22, 2019), recently noted that the question of the Due Process Clause’s reach to Guantanamo is unresolved in the Circuit.
14 commission since it adopted Army Regulation 190-8, that Regulation makes a mixed medical
commission review quite distinct from a Periodic Review Board: if certain criteria are met, the
detained individual must be released. A mixed medical commission is designed to make
findings about the health of an individual; those findings lead to a result certain, not an exercise
of discretion. The review will result in Mr. al-Qahtani’s release or not, which is at the core of
habeas.
Respondents’ cases do not point to the result they seek. Each of Respondents’
cases holds that a particular claim that may be brought under § 1983 need not be brought first in
habeas. The analysis in all cited cases emphasizes that the core of habeas involves a motion for
release from, or reduction in the duration of, confinement. Requests for different relief can be
brought under § 1983. Respondents emphasize one case from this District: Salahi decided that
habeas was not available to a detainee seeking a hearing before a Periodic Review Board, which
Respondents analogize to a mixed medical commission. It is true that a Periodic Review Board
may recommend that a detainee be released but the discretion involved in making such a
recommendation, and involved again in the ultimate decision as to whether to actually release a
detainee as recommended, distinguishes Salahi from this case. A mixed medical commission
relies on its professional expertise to decide facts concerning an applicant’s health. Depending
on those facts, release may be warranted and, if warranted, the applicant must be released.
Habeas gives prisoners the ability to enforce just that type of nondiscretionary release
mechanism.
Respondents also minimize the D.C. Circuit’s opinion in Aamer I, in which the
Circuit affirmatively answered the question of whether habeas covers a Guantanamo detainee’s
claim that he was being impermissibly force fed. In so doing, the Circuit reaffirmed its decision
15 in Kiyemba II, finding that Boumediene extended jurisdiction to the federal courts “with
respected to all habeas claims brought by Guantanamo detainees, not simply with respect to so-
called ‘core’ habeas claim.” Aamer I, 742 F.3d at 1029 (quoting Kiyemba II, 561 F.3d at 512).6
The Circuit addressed the question posed here: “[A]re petitioners’ claims the sort that may be
raised in federal habeas petition under section 2241?” Id. at 1030. In finding habeas
jurisdiction, the opinion generally identified the scope of habeas and held that challenges to the
fact or duration of detention are at the “core” of habeas, but challenges to conditions of
confinement also sound in habeas. Id. at 1036.
The Supreme Court itself has consistently avoided defining the scope of habeas
relief, despite the 1971 holding in Wilwording v. Swenson, 404 U.S. 249, 249 (1971), that
prisoners could challenge their “living conditions and disciplinary measures” through habeas.
See Boumediene, 553 U.S. at 792 (declining to “discuss the reach of the writ with respect to
claims of unlawful conditions of treatment or confinement”); Bell v. Wolfish, 441 U.S. 520, 527
n.6 (1979) (leaving “to another day the question of the propriety of using a writ of habeas corpus
to obtain review of the conditions of confinement, as distinct from the fact or length of
confinement itself”); Preiser v. Rodriguez, 411 U.S. 475, 499 (1973) (“This is not to say that
habeas corpus may not also be available to challenge . . . prison conditions.”).
The D.C. Circuit has not been so shy: it has permitted prisoners to use habeas to
challenge the conditions of their confinement, not just its legitimacy or duration. See, e.g.,
United States v. Wilson, 471 F.2d 1072, 1081 (D.C. Cir. 1972) (finding defendant brought his
6 Although Boumediene did not strike down 28 U.S.C. § 2241(e)(2)—which stripped jurisdiction from federal courts to consider “all other actions” potentially brought by a Guantanamo Bay detainee—“[t]he remaining, lawful subsection of [Military Commissions Act] section 7 has, by its terms, no effect on habeas jurisdiction.” Aamer I, 742 F.3d at 1031 (internal quotation marks omitted).
16 claim in the wrong jurisdiction, but noting that a claim of cruel and unusual punishment because
of mental illness was “unquestionably” a challenge to the conditions of his confinement which
sounded in habeas); Hudson v. Hardy, 424 F.2d 854 (D.C. Cir. 1970) (holding a petition seeking
relief from beatings and threats by jail officials was a complaint about “an unlawful deprivation
of liberty” that sounded in habeas); id. at 855 n.3 (“Habeas corpus tests not only the fact but also
the form of detention.”); Creek v. Stone, 379 F.2d 106, 109 (D.C. Cir. 1967) (“[I]n general
habeas corpus is available not only to an applicant who claims he is entitled to be freed of all
restraints, but also to an applicant who protests his confinement in a certain place, or under
certain conditions, that he claims vitiate the justification for confinement.”).
The illegality of a petitioner’s custody may flow from the fact of detention, e.g., Johnson v. Zerbst, 304 U.S. 458, 467-68 . . . (1938), the duration of detention, e.g., Preiser, 411 U.S. at 487 . . . , the place of detention, e.g., Miller [v. Overholser], 206 F.2d [415,] 419 [(1953)], or the conditions of detention, e.g., Hudson II, 424 F.2d at 855 n. 3. In all such cases, the habeas petitioner’s essential claim is that his custody in some way violates the law, and he may employ the writ to remedy such illegality.
Aamer I, 742 F.3d at 1036. While Mr. al-Qahtani does not explicitly identify his habeas petition
as a challenge to a condition of his confinement, United States v. Wilson placed complaints about
mental health while incarcerated within the scope of the action.
Mr. al-Qahtani argues that jurisdiction is found in this Court because the final
relief he seeks is release under Army Regulation 190-8 for which a mixed medical commission is
merely a procedural necessity, but the fact of his mental illness is not contested. He urges the
Court to rely on the All Writs Act, 28 U.S.C. § 1651, to issue the orders necessary to develop a
factual record on which it can exercise its habeas jurisdiction.
Indeed, jurists in this District have invoked the All Writs Act to extend the right to
counsel to Guantanamo detainees who filed habeas petitions, Al Odah v. United States, 346 F.
17 Supp. 2d 1, 6-8 (D.D.C. 2004), and to order the government to provide information to counsel
regarding a detainee’s physical condition. Al-Joudi v. Bush, 406 F. Supp. 2d 13, 21-22 (D.D.C.
2005). These cases embody the general principal that the purpose of the All Writs Act is to
provide courts with the tools necessary to “dispose of the matter as law and justice require.”
Harris v. Nelson, 394 U.S. 286, 290 (1969).
The essence of Mr. al-Qahtani’s motion is a request for a finding that he is legally
entitled to review and release under Army Regulation 190-8 because of his current physical and
mental condition. This Court has previously held that a request for review by a mixed medical
commission is a request for “release pursuant to domestic law (Army Regulation 190-8) and
those portions of an international accord that it incorporates (the Third Geneva Convention).”
Aamer v. Obama, 58 F. Supp. 3d 16, 25 (D.D.C. 2014) (Aamer II). As a request for release, Mr.
al-Qahtani’s motion fits squarely into this Court’s habeas jurisdiction. The Court may also,
under the All Writs Act, compel a mixed medical commission evaluation of Mr. al-Qahtani to
provide the Court with the necessary medical facts to reach a legal conclusion on his habeas
petition.7
B. Is Army Regulation 190-8 applicable to Guantanamo Detainees?
Al Warafi II held that Army Regulation 190-8 is domestic law which may be
invoked in habeas proceedings. 716 F.3d at 629. Therefore, although the Geneva Conventions
themselves are not applicable in habeas proceedings, see Military Commissions Act of 2006,
7 Respondents ask the Court to rely on equitable principles and refrain from exercising its habeas power because requiring the United States to utilize the mixed medical commission process for a detainee like Mr. al-Qahtani is inconsistent with the Executive Branch interpretation of the scope of Army Regulation 190-8, i.e., that Army Regulation 190-8 does not apply to detainees in non- international armed conflict. Respondents cite nothing in the Regulation that suggests the exception. More to the point, Respondents ignore the D.C. Circuit opinion in Al Warafi II, 716 F.3d at 629, that found Army Regulation 190-8 applicable to a Guantanamo detainee.
18 Pub. L. No. 109-366, § 5(a), 120 Stat. 2600, 2631, because Army Regulation 190-8 “expressly
incorporates relevant aspects of the Geneva Convention[s],” courts “may and must analyze”
those portions that have been incorporated into domestic law. Al Warafi II, 716 F.3d at 629.
1. Is Mr. al-Qahtani an “Other Detainee”?
Mr. al-Qahtani’s right to a mixed medical commission or ultimate repatriation
under Army Regulation 190-8 is dependent upon his classification. See Army Reg. 190-8 § 1-
1(a). Mr. al-Qahtani claims the rights of an unclassified person who is treated as an enemy
prisoner of war. See id. at 33 (defining other detainee as “[p]ersons in the custody of the U.S.
Armed Forces who have not been classified as an [enemy prisoner of war], [retained person], or
[civilian internee],” who “shall be treated as [enemy prisoners of war] until a legal status is
ascertained by competent authority”). Mr. al-Qahtani argues he should be classified as an “other
detainee” and, therefore, receive the protections of an enemy prisoner of war because he has not
been designated as any of the other types of detainees under Army Regulation 190-8.
Respondents argue that Mr. al-Qahtani has been found to be an “enemy combatant,” which he
has not challenged, so he is neither entitled nor able to be designated as an “other detainee”
under Army Regulation 190-8. Mr. al-Qahtani calls this a distinction without a difference: as an
“enemy combatant,” a descriptor not found in Army Regulation 190-8, he remains an “other
detainee” for the purposes of the Regulation and is, by its terms, entitled to be treated as a
prisoner of war.
In Aamer II this Court discussed whether an individual detained in Guantanamo
and designated by a Combatant Status Review Tribunal (CSRT) as an “enemy combatant” could
also be considered an “other detainee” under Army Regulation 190-8. 58 F. Supp. 3d at 23-25.
Although this Court did not ultimately determine that Mr. Aamer was an “other detainee,” it
19 considered the D.C. Circuit’s decision in Al Warafi II and determined that, by implication, the
Circuit found that mere designation as an “enemy combatant” did not render Army Regulation
190-8 inapplicable. Al Warafi II considered whether an individual detained as an “enemy
combatant” at Guantanamo qualified as “medical personnel” under Army Regulation 190-8 and
should be repatriated. If “an ‘enemy combatant’ designation removes Guantanamo detainees
from the coverage of Army Regulation 190-8, there would have been no need for the Al Warafi
II court to conduct such an analysis.” Aamer II, 58 F. Supp. 3d at 25.
Following Al Warafi II, this Court concludes that Mr. al-Qahtani meets the criteria
for an “other detainee” in Army Regulation 190-8: he is a person in the custody of the United
States and he has not been otherwise classified as either an enemy prisoner of war, retained
person, or civilian internee.8
2. Is Mr. al-Qahtani Entitled to Examination by a Mixed Medical Commission?
Section 3-12 of Army Regulation 190-8 provides for the repatriation of sick and
wounded enemy prisoners of war and, therefore, for sick and wounded other detainees. To
qualify for medical repatriation, an “other detainee” must be evaluated by a mixed medical
commission. Section 3-12(h) states that enemy prisoners of war (and therefore other detainees)
“will be examined by the Mixed Medical Commission” if (1) they are “designated by a camp or
hospital surgeon or a retained physician or surgeon who is exercising the functions of the
8 See supra at 9-10 (defining retained person and civilian internee); see also Army Reg. 190-8 at 33 (defining enemy prisoner of war as “one who, while engaged in combat under orders of his or her government, is captured by the armed forces of the enemy”). Enemy combatant is not defined in Army Regulation 190-8 and is not defined by the Respondent in this case. The Supreme Court has previously noted the government’s reluctance to officially define “enemy combatant.” See Hamdi, 542 U.S. at 516 (“There is some debate as to the proper scope of th[e] term [enemy combatant], and the Government has never provided any court with the full criteria that it uses in classifying individuals as such.”)
20 surgeon in a camp,” (2) they have an application submitted by a prisoner representative, (3) they
are otherwise recommended by a “power on which [they] depend or by an organization duly
recognized by that power and that gives assistance to them,” or (4) they “submit written
requests.” Army Reg. 190-8 § 3-12(h)(1)-(4) (emphasis added).
Mr. al-Qahtani submitted a written request for a mixed medical commission on
April 28, 2017. Therefore, under the plain language of the regulation, which states the enemy
prisoners of war (and by extension other detainees) that meet one of the above four
characteristics will be examined by a mixed medical commission, he is entitled to examination
by a mixed medical commission.
C. The Court’s Power to Order Examination by a Mixed Medical Commission
1. All Writs Act
The All Writs Act permits the Court to “fashion procedures . . . in order to
develop a factual record as necessary for the Court to make a decision on the merits of
Petitioners’ habeas claims.” Al Odah, 346 F. Supp. 2d at 6. This Court has already decided
above that review by a mixed medical commission will provide necessary facts to resolve Mr. al-
Qahtani’s habeas petition.
The D.C. Circuit has recently emphasized that Guantanamo detainees “must be
afforded a habeas process that ensures ‘meaningful review’ of their detention.” Qassim, 927
F.3d at 524 (quoting Boumediene, 553 U.S. at 783).
The Supreme Court’s decision in Boumediene was explicit that detainees must be afforded those “procedural protections” necessary (1) to “rebut the factual basis for the Government’s assertion that he is an enemy combatant”; (ii) to give the prisoner “a meaningful opportunity to demonstrate that he is being held pursuant to the erroneous application or interpretation of relevant law”; and (iii) to create a record that will support “meaningful review” by the district court.
21 Id. at 528-29 (quoting Boumediene, 553 U.S. at 779, 783). Mr. al-Qahtani argues that he is being
held pursuant to Respondents’ erroneous application of Army Regulation 190-8, which the D.C.
Circuit has held is applicable domestic law. He moves this Court to compel examination by a
mixed medical commission so a record will exist to allow for meaningful review of
Respondents’ failure to repatriate him. Lacking the necessary expertise to evaluate Mr. al-
Qahtani’s physical and psychological condition to determine whether he qualifies for medical
repatriation under Army Regulation 190-8, this Court must require Respondent to conduct the
necessary evaluation and provide the Court with the record to evaluate Mr. al-Qahtani’s habeas
petition fully.
2. Injunctive Relief
Having found the Court may order a mixed medical commission pursuant to its
powers to ensure meaningful review of Mr. al-Qahtani’s habeas petition, the Court need not
consider Mr. al-Qahtani’s alternative request that the Court grant injunctive relief or
Respondents’ argument that Mr. al-Qahtani’s motion to compel a mixed medical commission is
actually a request for a permanent injunction.9 Should it assist review, the Court will briefly
address the legal standard governing preliminary injunctions.
When evaluating a request for a preliminary injunction, courts consider “whether
(1) there is a substantial likelihood [petitioner] will succeed on the merits; (2) [petitioner] will be
irreparably injured if an injunction is not granted; (3) an injunction will substantially injure the
other party; and (4) the public interest will be furthered by the injunction.” Serono Labs., Inc. v.
9 By arguing that a preliminary injunction would have the effect of a permanent injunction Respondents may inadvertently admit that (1) Mr. al-Qahtani is mentally ill and unlikely to recover where he is; (2) a mixed medical commission would find that he qualifies for repatriation under the terms of Army Regulation 190-8; and (3) Respondents would be required by the Regulation to comply.
22 Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998); see also Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008) (“A [petitioner] seeking a preliminary injunction must establish that
he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the
public interest.”). Where the requested injunction would “‘alter, rather than preserve, the status
quo,’” as is requested here, “judges in this Circuit have required the moving party to ‘meet a
higher standard than in the ordinary case by showing clearly that he or she is entitled to relief or
that extreme or very serious damage will result from the denial of the injunction.’” Newark Pre-
School Council, Inc. v. HHS, 201 F. Supp. 3d 72, 78 (D.D.C. 2016) (quoting Elec. Privacy Info.
Ctr. v. DOJ, 15 F. Supp. 3d 32, 39 (D.D.C. 2014)) (emphasis in original).
a. Irreparable Harm
Mr. al-Qahtani has been held in Guantanamo Bay for over 18 years and has no
hope of release until the Executive Branch determines that hostilities have ended. See al-Alwi v.
Trump, 901 F.3d 294, 300 (D.C. Cir. 2018), cert. denied 139 S. Ct. 1893 (2019) (“However
characterized, the Executive Branch represents, with ample support from record evidence, that
the hostilities described in the AUMF continue. In the absence of a contrary Congressional
command, that controls.”). His doctor reports that Mr. al-Qahtani’s physical and mental
conditions have deteriorated during his detention. Indeed, Al-Joudi found that Guantanamo
detainees are “vulnerable to further physical deterioration, and possibly death, by virtue of their
custodial status at Guantanamo and weakened physical condition” and “where the health of a . . .
vulnerable person is at stake, irreparable harm can be established.” 406 F. Supp. 2d at 20. The
record indicates that Mr. al-Qahtani may be such a vulnerable person who suffers from both
physical and mental conditions that are aggravated by his detention. Respondents suggest that
Mr. al-Qahtani is to blame for his condition because he fails to take advantage of the available 23 medical resources despite the ongoing efforts of the medical staff to provide care. His doctor
and lawyers attribute Mr. al-Qahtani’s reluctance to his continuing fear of all authority figures at
Guantanamo, including medical staff, due to his torture and his current mental instability. See
Karem Rep. at 9; Pet’r Mot. at 6-7. The Court does not rule on the question but finds that Mr. al-
Qahtani has demonstrated irreparable harm.
b. Likelihood of Success on the Merits
This Court will not substitute its lay opinion for that of a competent mixed
medical commission. However, if the mixed medical commission finds that Mr. al-Qahtani
qualifies for repatriation, Army Regulation 190-8 mandates that he be repatriated.
c. Effect of Injunction on Respondents
Respondents argue that establishing a mixed medical commission, which has
never been done, would be extremely costly and burdensome on the government. Just
determining the foreign members of such a commission would not be easy because the conflict at
issue is not between the United States and another nation. Mr. al-Qahtani responds that courts
have required the government to make other medical evaluations and provide treatments and the
proposed process is not significantly more burdensome. See Al-Oshan v. Obama, 753 F. Supp.
2d 1, 2 (D.D.C. 2010) (requiring the government to create a treatment plan in collaboration with
an independent medical expert); Zuhair v. Bush, 592 F. Supp. 2d 16, 17 (D.D.C. 2008) (requiring
the government to locate an independent medical examiner to evaluate the detainee).
The Court agrees that creating a mixed medical commission would require the
government to enter uncharted territory which would be unusual and likely burdensome.
d. Public Interest
Mr. al-Qahtani argues that the public interest in justice and the rule of law support
an injunction to ensure that the Court can fully exercise its habeas jurisdiction and evaluate Mr.
24 al-Qahtani’s right to repatriation. Respondents argue that the public interest is better served by
not ordering the Executive Branch to contravene its decision that Army Regulation 190-8 does
not apply to Guantanamo detainees. This Court is bound by the precedent set by the D.C.
Circuit, which decided in Al Warafi II that Army Regulation 190-8 is domestic law and can
apply to a Guantanamo detainee’s habeas petition. The Court is not persuaded that it should
disregard Al Warafi II or the dictates of Army Regulation 190-8. To the contrary, the Court
concludes that the dual public interest in the rule of law and the Court’s ability to exercise its
habeas jurisdiction is the more important interest.
IV. CONCLUSION
For the reasons discussed above, Petitioner’s Motion to Compel Examination by a
Mixed Medical Commission, Dkt. 369, will be granted. A memorializing Order accompanies
this Memorandum Opinion.
Date: March 6, 2020 ROSEMARY M. COLLYER United States District Judge