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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1809%3A07

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 543 U.S. 1019

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1809%3A07. Public record. Not legal advice.