IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Previously Filed With CSO and Cleared For Public Filing IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MAMDOUH HABIB, et al. Petitioners, v. Civil Action No. 02-CV-1130 (CKK GEORGE WALKER BUSH, President of the United States, et al., Respondents. MOTION FOR LEAVE TO SEEK DISCOVERY OF PETITIONER S MEDICAL RECORDS IN RESPONDENTS POSSESSION Pursuant to 28 U.S.C. 2241, 2243, 2246, the Fifth and Eighth Amendments to the United States Constitution, and Rules Governing 2254 Cases, Rule 6(a, Petitioner Mamdouh Habib, through undersigned counsel, seeks leave to secure his medical records in Respondent s custody. 1 In support of this Motion, counsel offers the following: Introduction On November 29, 2004, counsel asked Respondents to provide him with Mr. Habib s medical records, and provided them with a release form signed by Mr. Habib. See Exhibit A, Letter to Andrew Warden. On January 3, 2005, Mr. Warden responded by refusing to provide Mr. Habib s medical records. See Exhibit B, Letter to Joe Margulies. Because Mr. Habib cannot obtain this information by other means, he seeks leave to 1 On January 11, 2005, the Department of Defense reported that Mr. Habib will be released. According to the United States, however, the timing of his release remains under discussion. At present, therefore, and until these discussions lead to Mr. Habib s release, he remains in unlawful custody and the issue presented by this Motion remains pressing. The release by the Defense Department is available at http://www.defenselink.mil/releases/2005/nr20050111-1945.html (last visited January 11, 2005. 1

secure it by discovery. On January 5, 2005, Respondents indicated they oppose this motion in its entirety. Argument Petitioner s medical records are relevant to a number of claims and issues before the Court. First, as the Court is aware, Respondents case against Mr. Habib derives entirely from his alleged confessions, both at Guantánamo and in Egypt. Mr. Habib told the CSRT, however, that his confessions were false. The statements taken in this country were secured by the application of some of the various torture techniques observed and reported by the FBI for the past several years but only recently disclosed by the Government in FOIA litigation pending in the Southern District of New York. See ACLU, et al. v. Department of Defense, et al., No. 04-cv-4151 (AKH(S.D.N.Y. 2004. 2 The confessions in Egypt were obtained by the even more ingenious techniques applied by the Egyptians and described in Mr. Habib s Application for a Temporary Restraining Order. 3 If, as Respondents maintain, Mr. Habib is receiving appropriate medical care, his records may document and confirm his mistreatment, which would cast doubt on the reliability of any so-called confessions. See Exhibit B, Letter from Andrew Warden. Second, Respondents have insisted throughout this litigation that the prisoners must seek their release through appropriate diplomatic channels. Presumably, 2 The records disclosed in the FOIA litigation maybe viewed at http://www.aclu.org/torturefoia/released/ (last visited January 3, 2005. Some of the records are appended to the Motion for Leave to Take Discovery filed January 6, 2005 in In Re Guantanamo Cases, which Mr. Habib has joined. He files this motion separately, however, because the omnibus discovery motion seeks records regarding torture, which are relevant to a number of prisoners, whereas this request seeks records only regarding Mr. Habib his medical records. 3 On January 4, 2005, undersigned counsel learned from the Court Security Office that his Application for a Temporary Restraining Order filed November 24, 2004, does not contain classified or protected information. Pursuant to Judge Green s Order of December 13, 2004 in In Re Guantánamo Cases, Mr. Habib filed this Application on the public record January 5, 2005. Mr. Habib incorporates by reference the facts recounted in the Application for a TRO regarding his treatment in Egypt, as if contained herein. 2

Respondents would not wish for one of its closest allies in the war on terror to be deceived about the condition of its national. Accordingly, if Respondents intend diplomatic remedies to be meaningful, it must disclose Mr. Habib s medical records, so that Mr. Habib may make an intelligent and complete appeal to the Australian Government. The legal landscape is well-settled. Where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is... entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry. Bracy v. Gramley, 520 U.S. 899, 908-09 (1997(ellipsis in original; quoting Harris v. Nelson, 394 U.S. 286, 300 (1969. Once the petitioner establishes good cause, the Court should grant the necessary discovery to fully develop the facts of a claim. Teague v. Scott, 60 F.3d 1167, 1172 (5 th Cir. 1995; East v. Scott, 55 F.3d 996, 1001-02 (5 th Cir. 1995(when facial allegations are facially sufficient to establish a due process claim, petitioner is entitled to discovery to fully develop the facts. Indeed, the blanket denial of discovery is an abuse of discretion if discovery is indispensable to a fair, rounded, development of the material facts. East, supra; Toney v. Gammon, 79 F.3d 693, 700 (8 th Cir. 1996(same. Applying this standard, habeas courts have routinely ordered discovery of a wide variety of records, including records in Respondents custody. See, e.g., Rice v. Clark, 923 F.2d 117, 118-19 (8 th Cir. 1991(noting district court order granting discovery of FBI records; McKenzie v. Risley, 915 F.2d 1396, 1398 (9 th Cir. 1990(remand for discovery of ex parte communications between prosecutor and judge; Payne v. Bell, 89 F. Supp. 2d 967, 970, 971-76 (W.D. Tenn. 2000(granting request for discovery of documents in 3

state s possession and to depose assistant district attorney; United States ex rel. Pecoraro v. Page, 1998 U.S. Dist. LEXIS 15746 at *21 (N.D. Ill. 1998(granting request to depose trial counsel, two prosecutors, and two detective; United States ex rel. Brisbon v. Gilmore, 1997 U.S. Dist. LEXIS 8314 at *8 - *9 (N.D. Ill. 1997(granting request for discovery of inmate prison and parole records. Not surprisingly, courts have often ordered Respondents to disclose records pertaining to the Petitioner, including medical records. See, e.g., Sherman v. McDaniel, 333 F. Supp. 2d 960, 970-71 (D. Nev. 2004(ordering discovery of petitioner s medical records in custody of state and municipal health providers; Cowans v. Bagley, 2002 U.S. Dist. LEXIS 21884 at *41 *46 (S.D. Ohio 2002(ordering disclosure of [a]ny and all psychological or medical records related to petitioner, in the possession of the state, the Ohio Department of Rehabilitation and Correction and/or the Ohio Adult Parole Authority, including mental health records ; cf. also United States ex rel. Kennedy v. Page, 1999 U.S. Dist. LEXIS 17905 at *7-*8 (N.D. Ill. 1999(in lieu of ordering formal discovery, court directs Respondent and Illinois Department of Corrections to provide petitioner with his medical records to facilitate development of claim; United States ex rel. Madej v. Gilmore, 1999 U.S. Dist. LEXIS 4086 at *9 (N.D. Ill. 1999(though granting habeas petitioner other discovery, court declines to grant discovery to obtain medical records because the petitioner s own medical records are already available to the petitioner. Respondents counsel has indicated they oppose this request. But Respondents opposition should not carry the day. First, Mr. Habib s request for disclosure of his own medical records will not interfere with the operation of Camp Delta. He does not, for 4

instance, seek to propound interrogatories or to question his treating physicians. Nor does he seek, by this request, to halt any ongoing interrogations (though such interrogations may be unlawful for other reasons. Nor does he seek information regarding any other inmate. Nor can Respondents credibly maintain that disclosure of these records poses a threat to national security. It is hard to conceive how national security hangs on the evidence of Mr. Habib s medical condition in U.S. custody, but in any case, undersigned counsel has been security-cleared, and has no objection to the release of the records to the secure facility established for this case. Second, it is no answer that at least according to Respondents counsel Mr. Habib has consistently received and continue[s] to receive appropriate medical care during [his] detention. See Exhibit B, Letter from Andrew Warden. As an initial matter, counsel appears to be mistaken. On January 5, 2005, the prestigious New England Journal of Medicine reported that medical personnel at Guantánamo Bay do not believe they act as physicians and are therefore not bound by patient-oriented ethics. Physicians assigned to military intelligence [believe they] have no doctor patient relationship with detainees and, in the absence of life-threatening emergency, have no obligation to offer medical aid. Bloche, M. Green and Jonathan H. Marks, When Doctors Go to War, 352 New England J. Medicine (January 6, 2005(available on line at http://content.nejm.org/cgi/content/full/352/1/3(last visited January 6, 2005(recounting interviews with Guantánamo medical personnel and Dr. David Tornberg, Deputy Assistant Secretary of Defense for Health Affairs. Because they do not act as physicians, doctors at the base participate in the interrogation process. They pass health information to military intelligence personnel; 5

physicians assisted in the design of interrogation strategies, including sleep deprivation and other coercive methods tailored to detainees' medical conditions. Medical personnel also coached interrogators on questioning technique. While the authors consider it premature to conclude that doctors at Guantánamo participated in torture, they believe there is probable cause for suspecting it. Id; see also Joe Stephens, Army Doctors Accused of Violating Geneva Convention, Washington Post (January 5, 2005. Furthermore, even if Mr. Habib were under the care of doctors dedicated to his welfare (and it appears he is not, the fact that he is receiving any medical care would tend to confirm the relevance of this request. And finally, Respondents misapprehend the issue. For purpose of this request, the question is not whether Mr. Habib is receiving appropriate medical care (a matter certainly beyond the expertise of Respondents counsel, but whether the evidence of the care he has received bears on the lawfulness of his continued detention. As indicated above, it does, and counsel s judgment about his treatment is no substitute for that evidence. 4 4 In his letter, Mr. Warden indicates that a request for similar relief was denied in O.K., et al. v. Bush, et al. and El-Banna et al. v. Bush et al. Both cases are readily distinguishable. In El-Banna, Petitioners counsel sought records to document Mr. El-Banna s precipitous weight loss and diabetic condition; Respondents provided them with the relevant portion of the records. In O.K., counsel sought appointment of an independent mental health professional and release of medical records to determine his competency to stand trial. Counsel did not, however, seek discovery under Rule 6 in support of any claim in his habeas petition. In denying the motion, Judge Bates pointed out that no charges were pending and that the request was premature. 2004 U.S. Dist. LEXIS 21567 at *24-*27 (D.D.C. 2004. In addition, he found that counsel had not presented sufficient evidence of O.K. s incompetence. Id. at *35-*42. Mr. Habib seeks fundamentally different relief. 6

CONCLUSION For the foregoing reasons, counsel respectfully requests that he be permitted to obtain Mr. Habib s medical records from Respondent. Dated: Respectfully submitted, Joseph Margulies MacArthur Justice Center University of Chicago Law School 1111 East 60 th Street Chicago, IL 60637 (773 702.9560 (773 702.0771 (FAX Counsel for Mr. Habib 7

Andrew I. Warden Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW, Room 6120 Washington, DC 20530 Re: Habib v. Bush, No. 02-cv-1130 Dear Mr. Warden: November 29, 2004 I have enclosed two documents. The first is Mr. Habib s authorization for me to proceed on his behalf in this and related litigation. The second is a signed HIPAA release form for all medical records relating to Mr. Habib, including but not limited to psychological and psychiatric records. Thank you for your attention to this request, and I look forward to your response to the request for medical records. Sincerely, Enc. Joseph Margulies MacArthur Justice Center University of Chicago Law School 1111 East 60 th Street Chicago, IL 60637 (773 702.9560 (773 702.0771 (FAX

U.S. Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Ave., NW Washington, D.C. 20503 January 3, 2005 SENT VIA ELECTRONIC MAIL Joseph Margulies MacArthur Justice Center University of Chicago La~v School 1111 East 60th Street Chicago, IL 60637 Re: Habib v. Bush. No. 02-CV-1130-CKK Dear Mr. Margulies: The purpose of this letter is to respond to your letter of November 29, 2004, in which you request that the govermnent release all medical records relating to Mamdouh Habib, an enemy combatant held at the U.S. Naval Base at Guantanamo Bay, Cuba (GTMO. The goven~anent declines to grant your request. We do not believe there an appropriate basis for agreeing to such access in the context of this litigation, ha fact, Judges in two of the coordinated GTMO cases have already denied motions for relief similar to that you are seeking. See O.K.v. Bush, 2004 WL 2387672 (D.D.C. 2004; EI-Banna el al. v. Bush et al., Civil Action No. 04-CV-1144-RWR. All detainees at GTMO, including your client, have consistently received and continue to receive appropriate medical care during their detention. Sincerely, Andrew I. Warden Trial Attorney