Amicus Curiae Brief — Hamdan v. Rumsfeld, Secretary of Defense

No. 04-702 | -» £1 2004

IN THE

Supreme Court of the United States

SALIM AHMED HAMDAN,

Petitioner,

v.

DONALD H. RUMSFELD, et al.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT

TO THE UNITED STATES COURT OF APPEALS

FOR THE District OF COLUMBIA CIRCUIT

BRIEF OF AMICI CURIAE HUMAN RIGHTS FIRST,

PHYSICIANS FOR HUMAN RIGHTS, et al.

IN SUPPORT OF PETITIONER

MIcHAEL H. PosNeR DEBORAH N. PEARLSTEIN*

HuMAN RIGHTS IRST Director, U.S. Law

333 7" Avenue, 13th Floor AND SECURITY PROGRAM

New York, NY 10001-5004 HuMAN RIGHTs First

(212) 845-5200 Stanford Crown Quadrangle,

Room 243

559 Nathan Abbott Way

Stanford, CA 94305-8610

(650) 357-0346

Counsel for Amici Curiae

* Counsel of Record

191725 ce

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

i

TABLE OF CONTENTS

Summary of the Argument ....................

WOE 6 50 aes ee i hea ee a ks

I. Certiorari Before Judgment Is Warranted

Where It Is Imperative Decision Be Rendered

Without “Any Avoidable Delay” .........

II. Profoundly Negative Physical And

Psychological Consequences Flow From

Prolonged Isolation And Indefinite Detention

"SSO @ 628 4 46224 42S 6S. 4 © 4 4 6.4 6 64 2 4 64 € 6 4 OO. 6 SS

Ill. The Circumstances Of Mr. Hamdan’s

Detention Make Him Especially Vulnerable

Page

ii

TABLE OF CITED AUTHORITIES

Page

U.S. Cases:

Alexander v. Holmes County Board of Education,

396 U.S. 19 (290R) s canscansuesces eee ees 7

Bell v. Wolfish, 441 U.S. 520 (1979) ............ 14

Campbell v. Cauthron, 623 F.2d 503 (8th Cir. 1980)

oe ae kee ak 6 9a ee 14, 17

Chambers v. Florida, 309 U.S. 227 (1940) ....... 14

Dames & Moore v. Regan, 453 U.S. 654 (1981) ... 7

Davenport v. DeRobertis, 844 F.2d 1310 (7th Cir.

1968) . ..iscecana tee 11

Ex Parte Quirin, 317 U.S. 1 (1942) ............. 7

Foster v. Florida, et al., 537 U.S. 990 (2002) ..... 8, 13

Gray v. Spillman, 925 F.2d 90 (4th Cir. 1991) .... 14

In re Medley, 134 U.S. 160 (1890) ............ 9, 10, 13

Jones El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wis.

2001) occa dintccsndeeeeeee 8, 17

Katzenbach v. McClung, 379 U.S. 294 (1964) .... 7

Lackey v. Texas, 514 U.S. 1045 (1995) .......... 8

ili

Cited Authorities

Page

Lock v. Jenkins, 641 F.2d 488 (7th Cir. 1981) ..... 14, 17

Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995)

Ce agin oe isd v's 2 é-0 <5 64a bed bee eee 8

Perri v. Coughlin, 1999 U.S. Dist LEXIS 20320

EE ee 11-12

Ruiz v. Johnson, 37 F. Supp. 2d 855 (S.D. Tex. 1999),

rev'd on other grounds, 243 F.3d 941 (Sth Cir.

2001), adhered to on remand, 154 F. Supp. 2d 975

ESET ae ear a Senn REEL 8

Rumsfeld v. Padilla, 124 S. Ct. 1353 (2004) ...... 7

Wilkins v. May, 872 F.2d 190 (7th Cir. 1989) ..... 14

Other Cases:

Pratt v. Att'y Gen., [1994] 2 A.C. 1 (P.C. 1993) ... )

S v. Makwanyane, 1995 (6) BCLR 665 (SA) ...... )

Soering v. United Kingdom, 11 Eur. Ct. H.R. (ser. A)

I arr Uae Sg ote bad Cle anne Y

United States v. Burns, [2001] 1 S.C.R. 283 (Can.) .. 9

Rules:

ee a ica b's Fd bg e dv de as 7

iv ~

Cited Authorities |

Page 7

Books and Articles:

Bin Laden’s Driver Arraigned at Gitmo, Associated

Pe, oh na os Kio nnydeamans eas 16

Christopher Burney, Solitary Confinement (1952)

Liv woken akon ee abate Lae Sau Re oe ee 10

Craig Haney, Mental Health Issues in Long-Term

Solitary and ‘Supermax’ Confinement, 49(1)

Crime & Deling. 124 (2003) ............. 11, 12, 13

David Rose, Guantanamo: The War on Human

GRE Sidi ca pdiaswecewsennarncas 17, 18, 20

John Conroy, Unspeakable Acts, Ordinary People:

The Dynamics of Torture (2000) ............. 14

Josh White and John Mintz, Red Cross Cites

‘Inhumane’ Treatment at Guantanamo, Wash.

eS SP ates deee cds Casunaeaen 19

Larry E. Sullivan, The Prison Reform Movement:

ee i re re re 9

Lawyers Committee for Human Rights, Assessing the

New Normal: Liberty and Security for the Post-

September 11 United States (Deborah Pearistein

& Fiona Doherty, eds., 2003) ...........000.. 17, 18

Vv

Cited Authorities

Neil A. Lewis, F.B.J. Memos Criticized Practices at

Guantanamo, N.Y. Times, Dec. i are

Neil A. Lewis and David Johnston, New F.B.1. Files

Describe Abuse of Iraq Inmates, N.Y. Times, Dec.

Oh OY sk DN eek ypckaye eee

Patricia B. Sutker, et al., Cognitive Deficits and

Psychopathology Among Former Prisoners of War

and Combat Veterans of the Korean Conflict,

148(1) Am. J. Psych. 67 (1991) ..............

Philip E. Kubzansky, The Effects of Reduced

Environmental Stimulation on Human Behavior:

A Review, in The Manipulation of Human

Behavior 51 (A.D. Biderman and H. Zimmer, eds.

aa) MOREE EPP Y at er re ne OI

Ron Martz, Guantanamo Captives to Get Day in

Court This Week, Atlanta J.-Const., Apr. 18, 2004,

Stuart Grassian, Psychopathological Effects of

Solitary Confinement, 140 Am. J. of Psychiatry

aoa issn < MOET ECT ET Pa ae

Stuart Grassian & Nancy Friedman, Effects of

Sensory Deprivation in Psychiatric Seclusion and

Solitary Confinement, 8 Int’l J. of Law and

Paychhiatry 49: (1986) . 0... ccc eens...

Page

19

19

12-13

10

17

10

vi

Cited Authorities

Page

Miscellaneous:

Central Intelligence Agency, Human Resources

Exploitation Training Manual, 1983, available at

http://www2.gwu.edu/~nsarchiv/NSAEBB/

NEABBSLZAREIEIE oc cccacescenavansses 11

Central Intelligence Agency, KUBARK Counter-

intelligence Interrogation, July 1963, available at

http://www2.gwu.edu/~nsarchiv/NSAEBB/

NEAR IZA GORI i vice cccgennacveces 11

Complaint, Rasul v. Rumsfeld, No. 04 Civ. 1864

(D.DL. GeG Ott. 27, Ae ssc cceicesacesas . #9

Declaration of Daryl Matthews, M.D., Ph.D., Swift

v. Rumsfeld, No. 04 Civ. 0777L (W.D. Wash. filed

Dar. 3h, SON 100sbdestedvaseesesnereeeee 12, 16

Declaration of Lt. Cmdr. Charles Swift, Swift v.

Rumsfeld, No. 04 Civ. 0777L (W.D. Wash. filed

DER 5, BOOT) 60ccvdvscecaktes eukacneeeeee 15, 16

International Committee of the Red Cross,

Guantanamo Bay: Overview of the ICRC’s Work

for Internees (2004), available at http://

www.icrc.org/Web/eng/siteeng0.nsf/iwpList74/

951C74F20D2A2148C1256D8D002CA8DC

vii

| Cited Authorities

\

Page

Letter from TJ Harrington, Deputy Ass’t Dir.,

Counterterrorism Division, Federal Bureau of

lavestigation to Major General Donald J. Ryder,

Dep’t of the Army, Criminal Investigation

Command (July 14, 2004)

SILT TTY TT TT Tere 19

Petition for Writ of Mandamus and/or Writ of Habeas

Corpus, A/ Qosi v. Bush, et al., No. 04 Civ. 1937

(D.D.C. filed Nov. WE ksasinel ee 19-20

The official Joint Task Force G

>

at http://www.nsgtmo.navy.mil/jtfgtmo/d/dlt00 | :

html (accessed Dec. 20, 2004)

l

STATEMENTS OF INTEREST OF AMICI CURIAE'

Amici are individuals and organizations with expertise

in the practice of prolonged detention and its effects on

physical and psychological health.

Since 1978, Human Rights First, formerly the Lawyers

Committee for Human Rights, has worked in the United

States and abroad to create a secure and humane world by

advancing justice, human dignity and respect for the rule of

law. Human Rights First (HRF) works to support human

rights activists who fight for basic freedoms and peaceful

change at the local level; ensure that domestic legal systems

incorporate international human rights protections; and

help build a strong international system of justice and

accountability for the worst human rights crimes. Since 2002,

HRF has consulted with the Pentagon in the formulation of

military commission rules and procedures, has been one of a

handful of international organizations invited to observe

military commission proceedings at Guantanamo Bay, and

has been working closely with interested parties there to

promote compliance with fair trial procedures under U.S.

and international law.

Physicians for Human Rights (PHR) has worked as a

non-profit organization since 1986 to investigate and expose

violations of human rights worldwide using medical and

scientific methods. PHR’s work includes efforts to stop

1. The parties in this case-have consented to the filing of this

brief. Their letters are on file with the Clerk of this Court. Pursuant

to Rule 37.6, Amici state that no counsel for any party has authored

this brief in whole or in part, and no person or entity other than

Amici and their counsel contributed monetarily to the preparation or

submission of this brief.

2

torture, disappearances, and political killings by governments

and opposition groups; to improve health and sanitary

conditions in prisons and detention centers; to investigate

the physical and psychological consequences of violations

of humanitarian law in internal and international conflicts;

to defend medical neutrality and the right of civilians and

combatants to receive medical care during times of war; to

protect health professionals who are victims of violations of

human rights; and to prevent medical complicity in torture

and other abuses. In 1997, PHR shared in the Nobel Prize

for Peace as part of the Steering Committee of the

International Campaign to Ban Landmines.

Founded in 1990 by a group of volunteer physicians,

Doctors of the World-USA is an international health and

human rights organization working where health is

diminished or endangered by violations of human rights and

civil liberties. Doctors of the World mobilizes the health

sector to provide essential care and services while training

community residents to carry on the mission of health and to

promote basic human rights in the United States and abroad.

Since 1993, Doctors of the World has provided medical and

psychological support to torture victims. In 2002, Doctors

of the World provided evaluation services to more than 350

survivors of torture and other human rights violations in the

United States.

Advocates for Survivors of Torture and Trauma (ASTT)

has been treating survivors of torture and severe trauma since

1994 — work for which it has become widely recognized.

ASTT has developed an extensive network of partnerships

among organizations and professionals who serve torture

survivors, and has been instrumental in assisting clients to

cope with the consequences of having been tortured and, in

3

many cases, to obtain political asylum in the United States.

ASTT has also been involved in training others to treat torture

survivors, both in the United States and Guatemala.

The Boston Center for Refugee Health and Human Rights

(the Center) was established in 1998 to provide medical and

psychological assistance to anyone who h. 1 been subjected

to torture and related trauma. The Center’s work includes

providing comprehensive health care for refugees and

survivors of torture, educating and training agencies and

professionals who serve these communities, conducting

clinical. epidemiological, and legal research, and advocating

for the promotion of health and human rights.

Global Lawyers and Physicians (GLP), founded in 1996,

is a non-profit hon-governmental organization that focuses

on health and human rights issues. GLP was formed to

reinvigorate the collaboration of the legal and medical/public

health professions to protect the human rights and dignity of

all persons. GLP works at the local, national, and international

levels on issues with a focus on health and human rights,

patient rights, and human experimentation.

The Program for Survivors of Torture and Severe Trauma

(PSTST) at the Center for Multicultural Human Services

(CMHS) is a grant-funded program that has been in existence

since 1998. PSTST Provides psychological, psychiatric, and

case management services to over 150 torture survivors per

year. The program’s clients are refugees, asylum seekers, and

asylees from all over the world who are struggling with the

emotionally debilitating effects of torture.

Rocky Mountain Survivors Center (RMSC), located in

Denver, Colorado, assists survivors of torture and war trauma,

4

and their families, to create a new future. Since 1996, they

have achieved this by providing mental health counseling,

and by coordinating access to health care, legal and social

support services. RMSC also provides training to personnel

from mainstream and expatriate community organizations

that assist refugees and immigrants.

The Torture Abolition and Survivors Support Coalition

International (TASSC) is the only organization founded by

and for survivors. It was established on the guiding principles

that torture is a crime against humanity and that survivors

are among the strongest and most effective voices in the

campaign to end the practice of torture. The mission of

TASSC is to end the practice of torture wherever it occurs.

TASSC operates independently of any political ideology,

government, or economic interest. TASSC was founded in

1998 and is a non-profit organization

Dr. Allen Keller is a recognized expert in the evaluation

and treatment of victims of torture and other human rights

abuses. He is Assistant Professor of Medicine at New York

University School of Medicine and Society Master for the

May Chinn Society for Bioethics and Human Rights, NYU

School of Medicine Master Scholars Program. He is the

founder and Director of the Bellevue/NYU Program for

Survivors of Torture, which provides comprehensive,

medical, mental health and social services to refugees and

asylum seekers who have suffered from torture and other

human rights abuses. Since the program began in 1995,

over 1,300 men, women and children from more than 70

countries have received care. The Program has established

an international reputation for excellence in its clinical,

educational and research activities. In 2003, Dr. Keller

received the Barbara Chester Award from the Hopi

Foundation in recognition of his outstanding work in caring

for torture Victims. Recently, Dr. Keller completed a Study

examining the health impact of Prolonged detention of

asylum seekers in the United States.

SUMMARY OF THE ARGUMENT

As individuals and Organizations with expertise in the

Practice and health effects of Prolonged detention, Amici

for Precisely this reason — the effectiveness of indefinite

detention and Solitary confinement in Provoking anxiety and

6

psychiatric instability — that the CIA included them among its

principal techniques of coercion in now repudiated manuals on

interrogation from the 1960’s. And it has been for the same

reasons that courts have found certain such conditions of

confinement violate the Eighth Amendment prohibition against

cruel and unusual punishment.

In this case, the risks to Mr. Hamdan are especially acute.

Since his capture in Afghanistan in late 2001. Mr. Hamdan

alleges he has been subject to beatings by U.S. forces, made to

sit motionless for days, dressed inadequately in subfreezing

temperatures, and threatened with death, torture and

imprisonment. Pet. App. 59-60. From December 2003 until late

October 2004, Mr. Hamdan was held in solitary confinement at

the U.S. Naval Base at Guantanamo Bay (“Guantanamo”) in an

eight-by-five foot steel detention cell, denied contact with other

detainees, and permitted only very limited access to a translator.

He was initially denied outdoor exercise during daylight and

denied medical treatment despite his repeated requests. Pet. App.

60-61. Mr. Hamdan’s appointed military lawyer, Lt. Cmdr.

Charles Swift, described his client during that time as suffering

“uncontrollable weeping at inappropriate times, undirected

anger, and unresponsiveness,” and expressing a desire to kill

himself. During his period of solitary confinement, Mr. Hamdan

lost on the order of 50 pounds.

While Respondent effected Mr. Hamdan’s return to the

general Guantanamo prison population just days before the U.S.

federal district court heard oral arguments in his case, the damage

Mr. Hamdan has already suffered, the continued uncertainty of

his fate (which may include a death sentence or life

imprisonment), and the real risk of torture or other forms of

abuse at Guantanamo make it essential that this Court act

promptly to resolve the legal questions presented in his case.

5

ARGUMENT

I. Certiorari Before Judgment Is Warranted Where It

Is Imperative Decision Be Rendered Without “Any

Avoidable Delay”

Supreme Court Rule 11 recognizes the propriety of

granting a writ of certiorari before judgment below “upon a

showing that the case is of such imperative public importance

as to justify deviation from normal appellate practice and to

require immediate determination in this Court.” Sup. Ct. R.

11. There can be no question here of the “public importance”

of the first military commission trials to be conducted since

World War II. Pet. Br. 6-11; see especially Ex Parte Quirin,

317 U.S. 1, 18-19 (1942) (military trial of enemy spies

requires Court decision without “any avoidable delay”’);

Dames & Moore v. Regan, 453 U.S. 654, 668 (1981)

(questions involving presidential efforts to secure release of

U.S. hostages in Iran warranted immediate review).

As this Court has recognized in multiple contexts, the

risk of ongoing harm or imminent injury to a petitioner may

be grounds for considering a case outside the normal course

See, e.g., Rumsfeld v. Padilla, 124 S. Ct. 1353 (2004)

(briefing schedule expedited in case reviewing president’s

power to indefinitely detain U.S. citizen as “enemy

combatant”); Alexander v. Holmes County Board

of Education, 396 U.S. 19 (1969) (case involving denial of

fundamental rights to school children expedited and set for

early argument); Katzenbach v. McClung, 379 U.S. 294

(1964) (oral argument advanced in case involving ongoing

racial discrimination).

8

These interests are particularly compelling where, as here,

delay may prolong harms of constitutional magnitude. See, e.g.,

Jones El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wis. 2001)

(preliminary injunction to address conditions of confinement

that “deprive prisoners of the ‘minimal civilized measure of

life’s necessities”); Ruiz v. Johnson, 37 F. Supp. 2d 855

(S.D. Tex. 1999) (daily psychological harm suffered through

total deprivation from human contact and mental stimulus is

cruel and unusual punishment), rev’d on other grounds, 243

F.3d 941 (Sth Cir. 2001), adhered to on remand, 154 F. Supp.

2d 975 (S.D. Tex. 2001); Madrid v. Gomez, 889 F. Supp. 1146,

1264 (N.D. Cal. 1995) (lack of social contact, isolated location,

lengthy and indefinite sentences of inmates at Pelican Bay prison

violates Eighth Amendment nights of inmates who are mentally

ill or have borderline personality disorders) (“If the particular

conditions of [confinement] being challenged are such that they

inflict a serious mental illness, greatly exacerbate mental illness,

or deprive inmates of their sanity, then defendants have deprived

inmates of a basic necessity of human existence — indeed, they

have crossed into the realm of psychological torture.”’).

Indeed, where delay may increase the risk of presenting a

question of constitutional import, this Court should act

expeditiously to minimize the risk of error. Cf, Lackey v. Texas,

514 U.S. 1045 (1995) (Stevens, J., respecting denial of certiorari)

(imposing punishment following prolonged detention as a result

of delays in the resolution of the case may amount to cruel and

unusual punishment in violation of the U.S. Constitution);

Foster v. Florida, et al., 537 U.S. 990 (2002) (Breyer, J.,

dissenting from denial of certiorari) (“[T]he combination of

uncertainty of execution and long delay is arguably ‘cruel.””).’

2. Our allies share this interest in avoiding prolonged delay in

resolution of a case. See Foster v. Florida, et al., 537 U.S. 990, 990

(Cont'd)

9

II. Profoundly Negative Physical And Psychological

Consequences Flow From Prolonged Isolation And

Indefinite Detention

The serious mental and physical health effects of prolonged

isolation and indefinite detention are well documented and long

understood. U.S. experience with prolonged incarceration in

general, and solitary confinement in particular, grew from late

eighteenth century efforts to rehabilitate ‘social deviants’ of the

age. Larry E. Sullivan, The Prison Reform Movement: Forlorn

Hope 5-9, 12-13 ( 1990). The so-called “Philadelphia System,”

which relied on “the complete isolation of the prisoner from all

human society,” produced incidences of psychiatric disturbance

that were so dramatic and widespread that “its main feature of

Solitary confinement was found to be too severe.” Jn re Medley,

134 U.S. 160, 168 (1890); see ales Sullivan, supra, at 12-13.

Research by late nineteenth and early twentieth-century

clinicians revealed that prisoners held under such circumstances

suffered from anxiety, confusion, paranoia, and hallucinations,

Psychiatric Seclusion and Solitary Confinement, 8 Int’! J. of

Law and Psychiatry 49, 53-56 (1986) (noting clinicians’

“thousands of descriptions of Psychosis associated with solitary

confinement” and identifying the significance of the perceived

(Cont'd)

(2002) (Breyer, J., dissenting from denial of certiorari) (citing United

States v. Burns, [2001] 1 S:C.R. 283, 353 (Can.); Pratt y. Att'y Gen.,

[1994] 2 A.C. 1,4 (P.C. 1993); Soering v. United Kingdom, 11 Eur.

Ct. H.R. (ser. A) at 439, 478 (1989)): see also S v. Makwanyane,

1995 (6) BCLR 665 (SA) (two years in Prison awaiting death sentence

is “intolerable situation” making it “essential that it be resolved one

way or another without further delay”).

10

or anticipated goal of confinement in affecting a prisoner’s

mental state); see also Stuart Grassian, Psychopathological

Effects of Solitary Confinement, 140 Am. J. of Psychiatry 1450,

1450-51 (1983).

This Court recognized as much in holding that a statutory

solitary confinement provision adopted during this era after a

defendant committed the charged crime constituted additional

punishment for ex post facto purposes:

A considerable number of the prisoners fell, after

even a short confinement, into a semi-fatuous

condition, from which it was next to impossible to

arouse them, and others became violently insane;

others still, committed suicide; while those who

stood the ordeal better were not generally reformed,

and in most cases did not recover sufficient mental

activity to be of any subsequent service to the

community.

In re Medley, 134 U.S. at 168.

While prolonged use of solitary confinement was thus

largely abandoned in the United States by the turn of the

twentieth century, Grassian, supra, at 1450, a new set of

psychiatric studies emerged in the 1950’s and 1960’s finding

similar effects from the detention of political prisoners in the

former Soviet Union and in China, and of American prisoners

held during the Korean War. See, e.g., Philip E. Kubzansky,

The Effects of Reduced Environmental Stimulation on Human

Behavior: A Review, in The Manipulation of Human Behavior

51 (A.D. Biderman and H. Zimmer, eds. 1961); Christopher

Bumey, Solitary Confinement (1952) (describing the author’s

eighteen months in Fresnes, in occupied France, during World

War II). It is precisely for this reason — the effectiveness of

1]

indefinite detention and solitary confinement in provoking

anxiety and psychiatric instability — that the CIA included them

among its principal techniques of coercive interrogation in its

1962 and 1983 manuals on counterintelligence interrogation.?

Contemporary research confirms the harmful consequences

of detention environments that physically segregate inmates

from the larger detainee population, require detainees to eat all

meals alone, restrict access to the Outside to one hour a day, and

allow for no face to face visits with ily members. See, é.g.,

Craig Haney, Mental Health Issues in Long-Term Solitary and

‘Supermax’ Confinement, 49(1) Crime & Deling. 124, 130-32

(2003) (reviewing studies). Effects again range from depression

and anxiety, to difficulties in concentration and memory, to

hypersensitivity to external stimuli, hallucinations and

perceptual distortions, paranoia, and problems with impulse

control. /d.; see also Davenport v. DeRobertis, 844 F.2d 13 10,

1316 (7" Cir. 1988); Perri v. Coughlin, 1999 U.S. Dist LEXIS

3. See, e.g., Central Intelligence Agency, KUBARK Counter-

intelligence Interrogation, July 1963, at 90

An early effect of [solitary confinement] is anxiety. . . . The

interrogator can benefit from the subject’s anxiety. As the

interrogator becomes linked in the subject’s mind with the

reward of lessened anxiety, human contact, and meaningful

activity, and thus with providing relief for growing

- discomfort, the questioner assumes a benevolent role. es

The result, normally, is a strengthening of the subject’s

tendencies toward compliance.

Available at http://www2.gwu.edu/~nsarchiv/N SAEBB/NSAEBB122/

index.htm (accessed Dec. 22, 2004); see also Central Intelligence

Agency, Human Resources Exploitation Training Manual, 1983, at

§ K-1, available at http://www2.gwu.edu/~nsarchiv/NSAEBB/

NSAEBB122/index.htm (accessed Dec. 22, 2004).

12

20320, at *7 (N.D.N.Y. June 11, 1999); Decl. of Daryl Matthews,

M.D., Ph.D., Swift v. Rumsfeld, No. 04 Civ. 0777L (W.D. Wash.

filed Mar. 31, 2004), 4] 13-16. Indeed, a literature review of

studies documenting the psychological effects of solitary

confinement concluded that-“there is not a single published study

of solitary or supermax-like confinement in which nonvoluntary

confinement lasting for longer than 10 days, where participants

were unable to terminate their isolation at will, that failed to

result in negative psychological effects.”

While some of the most severe symptoms of prolonged

isolation may ease following reintegration into a broader

population, many may suffer permanent harm from prolonged

solitary detention — including an inability to engage in normal

social interaction. Studies of former prisoners of war reveal long-

term effects of such confinement, from symptoms

of post traumatic stress to an inability to tolerate social

interaction. See Patricia B. Sutker, et al., Cognitive Deficits and

4. Craig Haney, Mental Health Issues in Long-Term Solitary

and ‘Supermax’ Confinement, 49(1) Crime & Deling 124, 130-32

(2003) (reviewing empirical studies)

[D]irect studies of prison isolation have documented an

extremely broad range of harmful psychological

reactions. These effects include increases in the

following potentially damaging symptoms and

problematic behaviors: negative attitudes and affect,

insomnia, anxiety, panic, withdrawal, hypersensitivity,

ruminations, cognitive dysfunction, hallucinations, loss

of control, irritability, aggression, and rage, paranoia,

hopelessness, lethargy, depression, a sense of impending

emotional breakdown, self-mutilation, and suicidal

ideation and behavior.

(Internal citations omitted).

13

Psychopathology Among Former Prisoners of War and Combat

Veterans of the Korean Conflict, 148(1) Am. J. Psych. 67, 67-

72 (1991) (former prisoners of war 40 years after release from

detention suffered symptoms of anxiety, confusion, depression,

Suspiciousness, and detachment from social interaction). One

recent study of Danish prisoners likewise found that for those

held in solitary confinement for longer than four weeks

the probability of being admitted to the prison

hospital for a psychiatric reason was about 20

times as high as for a person [in a mainline prison],

leading the researchers to conclude that

individuals detained [in solitary confinement] are

forced into an environment that increases their risk

of [psychiatric] hospitalization.

Haney, supra, at 143-44 (internal citation omitted).

Finally, uncertainty surrounding one’s fate in detention can

only exacerbate the impact of prolonged isolation.

See Foster, 537 U.S. at 990 (Breyer, J., dissenting from denial

of certiorari) (“[T]he combination of uncertainty of execution

and long delay is arguably ‘cruel.’ This Court has recognized

that such a combination can inflict ‘horrible feelings’ and ‘an

immense mental anxiety amounting to a great increase of the

offender’s punishment.”) (quoting Jn re Medley, 134 U.S. at

172 (statute requiring time of execution of sentence to be kept

secret from prisoner was additional punishment for ex post facto

purposes, as “one of the most horrible feelings to which [one]

can be subjected” while awaiting execution is “the uncertainty

during the whole of it,” and such “secrecy must be accompanied

by an immense mental anxiety amounting to a great increase of

the offender’s punishment”)). Indeed, studies of victims of

torture and coercive interrogation often find victims reporting

14

that the worst part of their detention was the time between

interrogation sessions, “when they were frightened of what

was going to happen.” John Conroy, Unspeakable Acts,

Ordinary People: The Dynamics of Torture 47, 170 (2000)

(citing Ole Vedel Rasmussen, Medical Aspects of Torture,

37 Danish Med. Bull. 1 (1990)).

lil. The Circumstances Of Mr. Hamdan’s Detention

Make Him Especially Vulnerable

Since his capture in Afghanistan in late 2001 and transfer

to Guantanamo sometime in 2002, Pet. App. 1-2, Mr. Hamdan

has been subject to treatment that would be unlawful at any

federal detention facility in the United States.° While his

recent return (on the eve of Respondent’s appearance in the

district court) to the general prison population at Guantanamo

is welcome, Mr. Hamdan’s treatment to date, coupled with

the still harsh detention conditions at Camp Delta and the

5. See Bell v. Wolfish, 441 U.S. 520 (1979) (conditions of pretrial

detention violate due process when they amount to punishment); see

also Chambers v. Florida, 309 U.S. 227, 237 (1940) (listing solitary

confinement along with “[t]he rack, the thumbscrew, [and] the

wheel,” as methods of compulsion used through the centuries to

obtain confessions, leaving “their wake of mutilated bodies and

shattered minds”); Gray v. Spillman, 925 F.2d 90, 93-94 (4th Cir.

1991) (beating or threatening a pretrial detainee in order to extract

information is “an absolutely impermissible” governmental

justification and would violate the Fifth Amendment); Wilkins v. May,

872 F.2d 190, 194 (7th Cir. 1989) (noting “if ever there were a strong

case for ‘substantive due process,’ it would be a case in which

a person who had been arrested but not charged or convicted

was brutalized while in custody.”); Lock v. Jenkins, 641 F.2d 488

(7th Cir. 1981) (holding pretrial detainee in a 37 square foot cell for

22 hours a day amounts to punishment); Campbell v. Cauthron, 623

F.2d 503 (8th Cir. 1980) (holding 6-8 pretrial detainees in a 130 to

154 square feet cell for 24 hours a day is punishment).

15

continued uncertainty surrounding his fate, make prompt

resolution of his case essential.

Mr. Hamdan maintains that U.S. officials in Afghanistan

beat him, forced him to sit motionless for days, dressed him

inadequately in subfreezing temperatures, and threatened him

with death, torture and imprisonment. Pet. App. 59-60. Upon

his arrival at Guantanamo, Mr. Hamdan was held in “Camp

Delta,” which he describes as “a single cell in a cellblock of 48

men,” where the cells were “open to the air and I could talk to

the other men.” Pet. App. 60. As Mr. Hamdan describes it:

“I was given 15 minutes a week of exercise in an 8 meter by 7

meter fenced in area.” Pet. App. 60.

In July 2003, the President designated Mr. Hamdan

as eligible for trials before military commissions that had

been created by Executive Order in November 2001, and charges

were issued in July 2004. Pet. App. 2. Shortly after

Mr. Hamdan was designated as eligible for trial — and two years

after Mr. Hamdan’s initial detention — Respondent effected Mr.

Hamdan’s transfer to solitary confinement in a detention facility

at Guantanamo known as “Camp Echo.” Pet. 2; Pet. App. 60-

61. Camp Echo consists of eight, windowless huts, each of which

is divided into two separate compartments containing steel

detention cells of eight feet by five feet. Decl. of Lt. Cmdr.

Charles Swift, Swift v. Rumsfeld, No. 04 Civ. 0777L (W.D. Wash.

filed May 3, 2004) (filed originally under seal), 4 3. During

those eleven months, Mr. Hamdan was denied contact with other

detainees and permitted only very limited access to a translator.

He was initially denied outdoor exercise during daylight

and denied medical treatment despite his repeated requests.

Pet. App. 60-61. After two months in solitary, Hamdan

described: “One month is like a year here, and I have considered

pleading guilty in order to get out of here.” Pet. App. 61.

16

Based on Mr. Hamdan’s affidavits and reports of

his attorney, an expert psychiatrist wrote to the federal

district court below emphasizing the precariousness of

Mr. Hamdan’s condition. Decl. of Daryl Matthews, supra, at

4] 7. Mr. Hamdan described his mood during solitary confinement

as “deteriorating, . .. encompassing frustration, rage (although

he has not been violent), loneliness, despair, depression, anxiety,

and emotional outoursts.” Jd. at 4 11. Mr. Hamdan’s appointed

military defense counsel, Lt. Cmdr. Charles Swift, described

his client’s condition as “initially agitated and withdrawn, with

a brightening mood as the visit proceeds, but ending with

Mr. Hamdan begging him not to leave.” Jd. Lt. Cmdr. Swift

also described witnessing significant mood swings, including

“uncontrollable weeping at inappropriate times, undirected

anger, and unresponsiveness.” Decl. of Lt. Cmdr. Charles Swift,

supra, at 4 7. During one period of a month between visits with

Lt. Cmdr. Swift, Mr. Hamdan refused to eat, indicating later to

Lt. Cmdr. Swift that he wanted to kill himself because he could

no longer stand conditions in Camp Echo. /d. at § 9. During his

period of solitary confinement, Mr. Hamdan lost on the order

of 50 pounds. Bin Laden’s Driver Arraigned at Gitmo,

Associated Press, Aug. 24, 2004, available at http:

www.foxnews.com/story/0,2933,129814,00.html (accessed

Dec. 22, 2004).

On this basis, Dr. Matthews concluded that Mr. Hamdan

was “at significant risk for future psychiatric deterioration,

possibly including the development of irreversible psychiatric

symptoms.” Decl. of Daryl Matthews, supra, at § 14.

Dr. Matthews noted in particular that “the psychological stress

of the uncertainty he faces over his lack of charges and about

the nature and duration of his future confinement.” Jd. at | 15.

On the last business day before oral arguments were heard

in the district court below, Appellants notified the court that

17

Mr. Hamdan had been returned to Camp Delta. Pet. App. at 42.

While conditions at Camp Delta are a significant improvement

over solitary, they remain far harsher than conditions recognized

as unconstitutional by U.S. federal courts. See David Rose,

Guantanamo: The War on Human Rights 59-63 (2004);

See, e.g., Jones El, 164 F. Supp. 2d at 1102 (severe restrictions

on personal possessions, illumination of cells 24 hours, and

spending all but four hours in a cell is cruel and unusual

punishment). Lock v. Jenkins, 641 F.2d 488 (7th Cir. 1981)

(holding pretrial detainee in a 37 square foot cell for 22 hours

a day amounts to punishment); Campbell v. Cauthron, 623

F.2d 503 (8th Cir. 1980) (holding 6-8 pretrial detainees in a

130 to 154 square feet cell for 24 hours a day is punishment).

Dr. Matthews, who was permitted to spend a month observing

Guantanamo detainees in 2003, characterizes Guantanamo as

“prison plus.” Rose, supra, at 65-67.

The maximum security cells in Camp Delta are

approximately eight feet by seven feet by eight feet, barely the

size of a king size bed. See Lawyers Committee for Human

Rights, Assessing the New Normal: Liberty and Security for

the Post-September 11 United States 53 (Deborah Pearlstein &

Fiona Doherty, eds., 2003); Ron Martz, Guantanamo Captives

to Get Day in Court This Week, Atlanta J.-Const., Apr. 18, 2004,

at 14A. The cells are enclosed in a green metal box. Rose, supra,

at 59. Each cell is separated from the other by mesh walls, and

each has a sink with running water and a toilet (where detainees

can be seen by guards who pass by every 30 seconds). Jd. at 60.

The lights remain on at all times. Jd. There are two recreation/

exercise areas for every 48 detainees; currently, detainees are

allowed 20 minutes of exercise followed by a shower twice a

week. See official Joint Task Force Guantanamo website, at

http://www.nsgtmo.navy.mil/jtfgtmo/d/dlt001.html (accessed

Dec. 22, 2004); Rose, supra, at 59.

18

Under the circumstances, it is unsurprising that mental

illness at Guantanamo is widespread. In January 2003, monitors

from the International Committee of the Red Cross took the

extraordinary step of reporting publicly its observation of a

“worrying deterioration in the psychological health of a large

number of [internees].” International Committee of the Red

Cross, Guantanamo Bay: Overview of the ICRC’s Work for

Internees (2004), available at http://www.icrc.org/Web/eng/

siteeng0.nsf/iwpList74/951C74F20D2A2148C1256

D8D002CA8DC (accessed Dec. 22, 2004). Red Cross observers

were clear about the cause:

They have no idea about their fate and they have no

means of recourse at their disposal through any legal

mechanism. As [they] spend more time in

Guantanamo and continue to have no idea what is

going to happen to them, we are concerned that the

impact on them will get more serious.

Rose, supra, at 67 (quoting International Committee of the Red

Cross spokesperson Florian Westphal). By the end of September

2003, there had been 32 suicide attempts among Guantanamo

detainees. Lawyers Committee for Human Rights, supra, at 53.

Since then, detainees’ efforts to injure themselves have been

reclassified as “manipulative self-injurious behavior” — a

classification unknown in the psychiatric literature. Rose, supra,

at 65-66. According to Guantanamo Chief Surgeon Cpt. Stephen

Edmonson, the drug most commonly prescribed to Guantanamo

detainees is Prozac and analogous mood-enhancers; as of

autumn 2003 more than one-fifth of Camp Delta inmates were

taking such medications. /d. at 66.

Finally, press accounts and internal investigations revealed

in recent weeks have now documented an alarming number of

incidents of outright abuse at Guantanamo Bay. See, e.g., Neil

19

A. Lewis and David Johnston, New F.B.I. Files Describe Abuse

of Iraq Inmates, N.Y. Times, Dec. 21, 2004, at Al (recounting

July 2004 F.B.I. agent report describing Guantanamo detainees

chained to the floor for 18-24 hours or more without food or

water, left to soil themselves, and others subject to freezing

temperatures, or temperatures “well over 100 degrees”); Neil

A. Lewis, F.B.I. Memos Criticized Practices at Guantanamo,

N.Y. Times, Dec. 7, 2004, at A19 (reporting cases confirmed by

Army and F.B.I. spokesman in which a female interrogator

squeezed one male detainee’s genitals and bent back his thumbs;

a prisoner was “gagged with duct tape that covered much of his

head”; and a dog was used to intimidate a detainee); Josh White

and John Mintz, Red Cross Cites ‘Inhumane’ Treatment at

Guantanamo, Wash. Post, Dec. 1, 2004, at A10 (describing July

2004 Red Cross report to Pentagon finding use of forced nudity,

severe temperatures, and other incidents of psychological and

physical abuse at Guantanamo); Letter from T.J. Harrington,

Deputy Ass’t Dir., Counterterrorism Division, Federal Bureau

of Investigation to Major General Donald J. Ryder, Dep’t of the

Army, Criminal Investigation Command 2 (July 14, 2004)

(describing FBI agents’ November 2002 observation of a

detainee, who after more than three months in isolation in “a

cell that was always flooded with light,” exhibited “behavior

consistent with extreme psychological trauma,” including

“talking to non-existent people, reporting hearing voices,

crouching in a comer of the cell covered with a sheet for hours

on end”).

These reports echo accounts of other prisoners from

Guantanamo. See, e.g., Complaint, Rasul v. Rumsfeld, No. 04

Civ. 1864 (D.D.C. filed Oct. 27, 2004), at 24-38 (alleging

treatment suffered by Rasul and others at Guantanamo as

including severe beatings, intimidation by dogs, exposure to

extreme heat and cold, and up to 30 days in isolation); Petition

20

for Writ of Mandamus and/or Writ of Habeas Corpus, A/ Qosi

v. Bush, et al., No. 04 Civ. 1937 (D.D.C. filed Nov. 8, 2004), at

12-17 (alleging techniques used on Al Qosi and others as

including sexual taunting, isolation in frigid temperatures, threats

of transfer to countries known to use torture, and being strapped

to the floor wrapped in an Israeli flag — all of which “contributed

to a pervasive atmosphere of fear, intimidation and

humiliation”). They also indicate that detainees may witness

the abuse of their fellow detainees, compounding their fear. See

Rose, supra, at 72 (Briton freed from Guantanamo reported

having witnessed multiple beatings by guards: “I have seen

people beat up — the swollen faces, the limping back or being

dragged back. I’ve seen the effects of it.”) Most important,

they add to the urgency of resolving the status of Guantanamo

detainees such as Mr. Hamdan.

While the removal of Mr. Hamdan from nearly a year in

solitary confinement (on the eve of oral arguments in the district

court) is a critical step, Mr. Hamdan is aware that Respondents

retain the power to return him to those conditions of detention

at any time. In the meantime, the uncertainty surrounding

his fate — including a potential sentence of death if convicted

before military commissions, and a lifetime of detention even

if not — contributes to the deleterious effects of his confinement.

The sooner his case may be resolved, whatever its outcome, the

better the chance of mitigating these effects.

CONCLUSION

For the foregoing reasons, Amici request that this Court

grant Mr. Hamdan’s Petition for Certiorari before Judgment.

* Counsel of Record

Respectfully submitted,

DEBORAH N. PEARLSTEIN*

Drrect or, U.S. Law

AND SECURITY PROGRAM

HuMAN RIGHTs First

Stanford Crown Quadrangle,

Room 243

559 Nathan Abbott Way

Stanford, CA 94305-8610

(650) 357-0346

MICHAEL H. PosNER

HuMAN RIGHTs First

333 7 Avenue, 13th Floor

New York, NY 10001-5004

(212) 845-5200

Counsel for Amici Curiae