Aamer v. Obama

• Citation: 953 F.Supp.2d 213
• Decision Date: 16 July 2013
• Docket Number: Civil Action Nos. 04–2215 (RMC), 05–1504(RMC), 05–2349(RMC).
• Parties: Shaker AAMER (ISN 239), Nabil Hadjarab (ISN 238), and Ahmed Belbacha (ISN 290), Petitioners, v. Barack H. OBAMA, et al., Respondents.
• Court: U.S. District Court — District of Columbia

953 F.Supp.2d 213

Shaker AAMER (ISN 239), Nabil Hadjarab (ISN 238), and Ahmed Belbacha (ISN 290), Petitioners,

v.Barack H. OBAMA,¹ et al., Respondents.

Civil Action Nos. 04–2215 (RMC), 05–1504(RMC), 05–2349(RMC).

United States District Court,

District of Columbia.

July 16, 2013.

Cori Crider, Tara L. Murray, Reprieve, London, UK, Jerry Cohen, Burns & Levinson, Boston, MA, Todd W. Miller, Holland & Hart LLP, Denver, CO, Shayana Devendra Kadidal, New York, NY, for Petitioners.

Daniel Mark Barish, Scott Michael Marconda, Terry Marcus Henry, Alexander Kenneth Haas, David Hugh White, Joseph Charles Folio, III, Julia A. Berman, Kathryn Celia Davis, Patrick D. Davis, Robert J. Prince, U.S. Department of Justice, Andrew I. Warden, Washington, DC, for Respondents.

OPINION

ROSEMARY M. COLLYER, District Judge.

Shaker Aamer, Nabil Hadjarab, and Ahmed Belbacha are detained at Guantanamo Bay, Cuba. They have all been cleared for release.² In protest of their continued detention, they have joined others at Guantanamo Bay in a lengthy hunger strike. Petitioners wish to starve themselves, perhaps to death. The Joint Medical Group (JMG) relies on enteral feeding when detainees refuse to take nutrients orally to keep themselves alive and healthy. Petitioners seek an injunction against the Government's insistence on feeding them through a nasogastric tube (“force-feeding”) to maintain their lives.³ Petitioners contend that such feeding violates their right to commit suicide and will deprive them of their ability to fast during daylight hours during Ramadan, which began on July 8, 2013. Petitioners misstate some important facts and misapprehend the law. Their motions for preliminary injunction will be denied.

I. FACTS

The basic facts are not in dispute. Since February 2013, a number of Guantanamo Bay detainees have engaged in a hunger strike to protest their detention. Petitioners have all been designated as hunger strikers by the medical staff at Guantanamo Bay, and Messrs. Hadjarab and Belbacha have been further approved for enteral feeding via nasogastric tube. Opp'n [Dkt. 215], Ex. 1, Senior Medical Officer (SMO) Decl. [Dkt. 215–1] ¶¶ 21–23.⁴

Specific policies and procedures govern the medical staff's decisions to maintain health and life. See id. ¶¶ 9–19. JMG designates detainees as hunger strikers based on a detainee's intent and behavior, as well as weight loss to less than 85% of Ideal Body Weight and/or missing nine consecutive meals. Id. ¶ 10. Thereafter, a detainee's health is carefully monitored, and he is provided extensive counseling and detailed warnings that continued refusals to eat or drink could endanger his health or life. Id. “During these conversations, the medical personnel explain that their role is to preserve and promote the detainee's life and health (not to stop the hunger strike) and urge the detainees to voluntarily accept enough nutrients to increase their weight and improve their health.” Id.

If a detainee's refusal to consume food or nutrients voluntarily reaches the point at which the medical staff determines that his life or health may be threatened, the medical staff will obtain authorization to feed him through a nasogastric tube. Id. ¶ 11. Prior to each enteral feeding, the detainee is offered a standard meal or a liquid nutritional supplement. He is advised again that feeding him through a nasogastric tube is done only to preserve his health and life. Id. Because Petitionersallege that maintaining their health and lives this way is inhumane, the Court quotes the Senior Medical Officer at length:

12. The enteral feed is administered through the use of a nasogastric tube [ ]. Feeding through those tubes is only conducted by physicians or credentialed registered nurses, and only when medically necessary to preserve that detainee's life and health....

13. When inserting nasogastric tubes, a lubricant is always used. In all cases, a topical anesthetic such as lidocane (a widely used local anesthetic) is offered, but the detainee may decline the anesthetic. Prior to insertion, the medical professional will lubricate a sterile nasogastric tube with a lidocane gel or surgilube, or olive oil at the detainee's request.

14. Registered nurses insert the enteral feeding tube in accordance with standard medical protocol. JTF–GTMO (Joint Task Force, Guantanamo Bay) uses 8, 10, or 12 french tubes, which are smaller than the 16 french tubes used by the Bureau of Prisons. A nasogastric tube is never inserted and then moved up or down. Instead, it is inserted down into the stomach slowly and directly, and removed carefully....

15. Typically, anesthetic throat lozenges are also available to the detainees on request. After verification of tube placement, an appropriate amount of nutritional supplement formula is infused by gravity into the detainee's stomach.

Id. ¶¶ 12–15. During this process, which may take thirty to forty minutes, the detainee is seated in a restraint chair, such as is used in U.S. prisons for this same purpose. Id. ¶ 15. “The chair is ergonomically designed for the detainee's comfort and protection, with a padded seat and padded back support,” and ensures the safety of those administering unwanted nutrition and the detainee himself. Id. ¶ 17. “Detainees are offered pain relievers, such as ibuprofen, if they indicate any discomfort from the feeding procedure.” Id. ¶ 18.

In connection with this feeding protocol, Petitioners complain that they have been, or may have been, administered against their will the drug called Reglan, a treatment for nausea and vomiting. The Senior Medical Officer states, however, that “JMG protocol is to obtain voluntary and informed consent” for any medication or medical procedure unless necessary to preserve a detainee's health and life. Id. ¶ 19. “Reglan is very rarely used by our medical staff as there are other anti-nausea drugs that are just as effective. Reglan or other medications are not placed in the feed solutions, or otherwise given to a detainee, without his knowledge and consent.” Id. Of the Petitioners, only Mr. Hadjarab was once prescribed Reglan in March 2013, but “he declined the medication and it has not been prescribed since that time.” Id. ¶ 21. Messrs. Aamer and Belbacha have never been prescribed or administered Reglan. Id. ¶¶ 22–23.

Petitioners also base their request for injunctive relief, in part, on the fact that Ramadan started on July 8 and the feeding protocol to which they are subjected will prevent them from fasting between sunrise and sundown, as required of an observant Muslim. The Senior Medical Officer explains:

As has been done in the past, barring any unforeseen emergency or operational issues, JTF–GTMO will accommodate religious practices during Ramadan ... JTF–GTMO will modify the hours of meal delivery, including enteral feeding, in accordance with the fasting hours, and detainees will be provided with a mid-night [sic] snack. Although the number of enterally fed detainees is greater than in the past, JTF–GTMO has shifted existing resources and has sufficient medical personnel on hand to provide detainees with the proper nutrition in a manner that is in accordance with Ramadan's fasting requirements. At the end of Ramadan, detainees may participate in morning Eid prayer and feast meals will be offered to all detainees on 8 and 9 August 2013.

Id. ¶ 20 (emphasis added).

Reporting on the condition of these Petitioners specifically, the Senior Medical Officer states that Nabil Hadjarab is in good health and is at 95% of his ideal body weight. At times since he was approved for enteral feeding in March, he has chosen to consume food and nutritional supplements orally. Id. ¶ 21. Shaker Aamer is also in good health and is also at 95% of his ideal body weight; while he has been designated as a hunger striker since March, he has not been approved for enteral feeding. Id. ¶ 22. Ahmed Belbacha is similarly in good health; he is at 85% of his ideal body weight and has been approved for enteral feeding since April. Id. ¶ 23. Occasionally, Mr. Belbacha has chosen to consume food and nutritional supplements orally. The medical staff is aware of a prior nasal surgery undergone by Mr. Belbacha and “therefore makes every effort to accommodate his situation during the enteral feeding process.” Id.

Petitioners seek a preliminary injunction precluding the Government from “force-feeding or forcibly medicating with Reglan” any of the Petitioners. See Proposed Order [Dkt. 212–4]. The Government opposes, notably asserting that this Court lacks jurisdiction to grant the relief Petitioners seek. See Opp'n [Dkt. 215].

II. LEGAL STANDARDS

A. Preliminary Injunction

A district court may grant a preliminary injunction “to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). An injunction is an equitable remedy, so its issuance is one which falls within the sound discretion of the district court. See Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 88 L.Ed. 754 (1944). To obtain a preliminary injunction, the movant must establish that:

(a) he is likely to succeed on the merits;

(b) he is likely to suffer irreparable harm in the absence of preliminary relief;

(c) the balance of equities tips in his favor; and

(d) an injunction is in the public interest.

Winter v. NRDC, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The D.C. Circuit has further instructed that “the movant has the burden to show that all four factors ... weigh in favor of the injunction.” Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C.Cir.2009); ⁵see also Sherley v. Sebelius, 644 F.3d 388, 392–93 (D.C.Cir.2011).

B. Jurisdiction

Before the Court can address Petitioners' request for a preliminary injunction, Petitioners must show that the Court has jurisdiction over their claim. See Public Citizen v. U.S. Dist. Court for the Dist....