742 F.3d 1023 (D.C. Cir. 2014), 13-5223, Aamer v. Obama

Docket Nº:13-5223, 13-5224, 13-5225, 13-5276
Citation:742 F.3d 1023
Opinion Judge:Tatel, Circuit Judge:
Party Name:SHAKER ABDURRAHEEM AAMER, DETAINEE, CAMP DELTA AND SAEED AHMED SIDDIQUE, NEXT FRIEND OF SHAKER ABDURRAHEEM AAMER, APPELLANTS v. BARACK OBAMA, PRESIDENT OF THE UNITED STATES OF AMERICA, ET AL., APPELLEES
Attorney:Jon B. Eisenberg argued the cause for appellants. With him on the brief were Cori Crider and Tara Murray. Shayana D. Kadidal entered an appearance. Daniel J. Lenerz, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Stuart F. Delery, Assistant Attorn...
Judge Panel:Before: TATEL and GRIFFITH, Circuit Judges, and WILLIAMS, Senior Circuit Judge. Williams, Senior Circuit Judge, dissenting:
Case Date:February 11, 2014
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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742 F.3d 1023 (D.C. Cir. 2014)

SHAKER ABDURRAHEEM AAMER, DETAINEE, CAMP DELTA AND SAEED AHMED SIDDIQUE, NEXT FRIEND OF SHAKER ABDURRAHEEM AAMER, APPELLANTS

v.

BARACK OBAMA, PRESIDENT OF THE UNITED STATES OF AMERICA, ET AL., APPELLEES

Nos. 13-5223, 13-5224, 13-5225, 13-5276

United States Court of Appeals, District of Columbia Circuit

February 11, 2014

Argued October 18, 2013.

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[Copyrighted Material Omitted]

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Appeals from the United States District Court for the District of Columbia. (No. 1:04-cv-02215), (No. 1:05-cv-01504), (No. 1:05-cv-02349), (No. 1:05-cv-01457).

Jon B. Eisenberg argued the cause for appellants. With him on the brief were Cori Crider and Tara Murray. Shayana D. Kadidal entered an appearance.

Daniel J. Lenerz, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Stuart F. Delery, Assistant Attorney General, and Douglas N. Letter and Matthew M. Collette, Attorneys.

Before: TATEL and GRIFFITH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

OPINION

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Tatel, Circuit Judge:

Petitioners Ahmed Belbacha, Abu Dhiab, and Shaker Aamer are detainees who, although cleared for release, remain held at the United States Naval Station at Guantanamo Bay, Cuba. Protesting their continued confinement, they and other similarly situated detainees have engaged in a hunger strike, refusing to eat unless and until released. In response, the government instituted a force-feeding protocol. Petitioners, each of whom had already sought release via a writ of habeas corpus, moved in those habeas actions for a preliminary injunction preventing the government from subjecting them to force-feeding. Two separate district judges denied their requests, each concluding that the Military Commissions Act (MCA) stripped federal courts of jurisdiction to consider such challenges brought by Guantanamo detainees. For the reasons set forth in this opinion, we conclude that under the law of this circuit petitioners' challenges to the conditions of their confinement properly sound in habeas corpus and thus are not barred by the MCA. We also conclude, however, that although their claims are not insubstantial, petitioners have failed to establish their entitlement to preliminary injunctive relief.

I.

A declaration submitted by the Senior Medical Officer at Guantanamo Bay summarizes the government's force-feeding protocol. According to the declaration, the protocol " follows the Federal Bureau of Prisons' model and guidelines for managing hunger strikers." Decl. of Commander [Redacted], M.D., 3. The medical staff at Guantanamo begins by designating a detainee as a " hunger striker... based on the detainee's intent, purpose, and behavior," the detainee's " [w]eight loss to a level less than 85% of the detainee's Ideal Body Weight," or the detainee's missing " nine consecutive meals." Id. Then, if " medical personnel determine the detainee's refusal to voluntarily consume adequate food or nutrients could now threaten his life or health," the detainee may be " approved for enteral feeding" --that is, force-feeding using " nasogastric tubes" inserted through the detainee's nose and into his stomach. Id. at 4. The declaration states that even after a detainee is approved for such treatment, " medical personnel will only implement enteral feeding when it becomes medically necessary to preserve a detainee's life and health." Id. The medical staff will also offer the detainee a final " opportunity to eat a standard meal or consume [a] liquid supplement orally, instead of being enterally fed." Id.

If the detainee refuses, officials will strap him to a " restraint chair." Decl. of

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Commander [Redacted], M.D., 5. The restraint chair, the declaration explains, " is ergonomically designed for the detainee's comfort and protection, with a padded seat and padded back support." Id. Once the detainee is restrained, " physicians or credentialed registered nurses" insert the " nasogastric tubes" through the detainee's nostril using a lubricant and, unless the detainee declines, " a topical anesthetic such as lidocane." Id. at 4. After medical personnel have verified that the tube has been properly placed in the detainee's stomach, " an appropriate amount of nutritional supplement formula is infused by gravity." Id. The actual feeding process " typically takes 30 to 40 minutes." Id. Once the feeding is complete, the medical staff keeps the detainee strapped in the restraint chair for an additional period in order " to ensure the detainee has tolerated the feeding and to permit digestion of the nutritional formula." Id. at 5. " Detainees are offered pain relievers, such as ibuprofen, if they indicate any discomfort from the feeding procedure." Id.

Medical staff designated petitioners Dhiab, Belbacha, and Aamer as hunger strikers in March 2013. Decl. of Commander [Redacted], M.D., 7. The staff approved Dhiab for enteral feeding that same month, and Belbacha shortly thereafter. Id. A declaration submitted by petitioners' counsel reports that, as of May 30, 2013, medical personnel had regularly subjected Belbacha to force-feeding. See Crider Decl. 6. Belbacha stated that the process " hurt[] a great deal" and caused one of his nostrils to swell shut. Id. Dhiab, the same declaration recounted, had also been regularly forcefed--except when, because of " severe pain," he had instead voluntarily consumed a liquid supplement. Id. at 14, 17. Although Aamer was never approved for enteral feeding, apparently because he had been willing to consume the minimal amount of nutrition necessary to avoid such treatment, he asserted through counsel that " if force-feeding were not permitted, he would escalate his peaceful protest and refuse food." Id. at 12. The government has informed us that although neither Belbacha nor Aamer is currently designated as a hunger striker, Dhiab retains that designation. See Appellees' Letter Regarding Case Status, November 8, 2013; Appellees' Letter Regarding Case Status, October 24, 2013.

In June, petitioners--together with fellow Guantanamo detainee Nabil Hadjarab, who has since been released--invoked the district court's habeas jurisdiction and moved for a preliminary injunction prohibiting the authorities from force-feeding them. According to petitioners, the practice violated both their constitutional rights and the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1.

Judge Kessler considered Dhiab's petition separately from those of the other petitioners. Holding that section 7 of the Military Commissions Act of 2006 (MCA), Pub. L. No. 109-366, 120 Stat. 2600, had stripped the district courts of subject-matter jurisdiction over claims, such as Dhiab's, relating to the " conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant," she rejected the request for a preliminary injunction. Dhiab v. Obama, 952 F.Supp.2d 154, *4 (D.D.C. 2013) (unpublished) (quoting 28 U.S.C. § 2241(e)(2)). She also observed, however, that " it is perfectly clear... that force-feeding is a painful, humiliating and degrading process."

Judge Collyer subsequently denied the remaining petitioners' applications for a preliminary injunction. Aamer v. Obama, Nos. 04-2215, 05-1504, 05-2349, 953 F.Supp.2d 213, *16 (D.D.C. July 16, 2013) (unpublished).

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Like Judge Kessler, she concluded that MCA section 7 stripped the courts of subject-matter jurisdiction over the detainees' claims. Judge Collyer went on to explain that even if the court had jurisdiction, " the motion would be denied due to failure to show likelihood of success on the merits and because the public interest and balance of harms weighs in favor of the Government." Id. She reasoned that the government has " legitimate penological interest[s] in preventing suicide" and in " preserving order, security, and discipline," and that " the requested injunction would increase the risk of irreparable harm to Petitioners' lives and health."

After both sets of petitioners appealed, we consolidated the cases. Petitioners assert, as they did in the district court, that their claims are properly raised in a petition for habeas corpus. They further contend that the two district courts should have granted them the preliminary relief they sought.

II.

We begin, as we must, with the question of subject-matter jurisdiction. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101-02, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). The government contends, as both district courts held, that the MCA's jurisdiction-stripping provision bars federal courts from considering petitioners' force-feeding challenges. Our review is de novo. Ass'n of Civilian Technicians v. FLRA, 283 F.3d 339, 341, 350 U.S. App. D.C. 238 (D.C. Cir. 2002).

A.

Congress and the Supreme Court have engaged in an extensive back-and-forth regarding the scope of federal court jurisdiction over claims brought by Guantanamo detainees. A brief review of this dialogue is necessary to understand the question now before us.

The story starts with Rasul v. Bush, 542 U.S. 466, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004). In that case, several Guantanamo detainees had filed a petition for habeas corpus seeking " release from custody, access to counsel, freedom from interrogations, and other relief." Id. at 472. Other detainees, invoking the jurisdictional provisions of 28 U.S.C. § § 1331 and 1350, sought " to be informed of the charges against them, to be allowed to meet with their families and with counsel, and to have access to the courts or to some other impartial tribunal." Id. The Supreme Court held that the district court had jurisdiction to hear all of these claims. Id. at 483-85. It explained that 28 U.S.C. § 2241, the federal habeas corpus statute, extended...

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