Al-Adahi v. Bush ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
MOHAMMED AL-ADAHI, et al., :
:
Petitioners, :
:
v. : Civil Action No. 05-280 (GK)
:
BARACK H. OBAMA, et al.,1 :
:
Respondents. :
______________________________:
MEMORANDUM OPINION
Petitioners Mohammad Ali Abdullah Bawazir (ISN 440) and Zahir
Omar Khamis Bin Hamdoon (ISN 576) have been detained at the United
States Naval Base at Guantanamo Bay, Cuba, since shortly after the
terrorist attacks of September 11, 2001. They both have habeas
corpus petitions pending before the Court. Petitioners bring this
action against Respondents in order to enjoin certain treatment
that they are undergoing as a result of the voluntary hunger
strikes they have undertaken to protest their lengthy detentions
without judicial scrutiny of the legality of such detentions.
The matter is before the Court on Petitioners’ Renewed
Emergency Motion for Injunction Against Further Torture of Mohammed
Bawazir (“Renewed Emergency Mot.”) [Dkt. No. 234].2 Upon
1
Former President George W. Bush was named as the original
lead respondent in this case. Pursuant to Federal Rule of Civil
Procedure 25(d), the Court automatically substitutes his successor,
President Barack H. Obama, as the new lead respondent.
2
On January 22, 2009, Petitioner Hamdoon requested [Dkt.
No. 258] to Join Petitioner Bawazir’s Motion, and the request was
(continued...)
consideration of the Motion, Opposition, Reply, supplemental
filings, oral argument, and the entire record herein, and for the
reasons set forth below, Petitioners’ Renewed Emergency Motion is
denied.
I. BACKGROUND
A. Procedural Background
On February 7, 2005, five detainees (including Bawazir and
Hamdoon) filed a petition for habeas corpus [Dkt. No. 1] in the
above-captioned case. The Court’s jurisdiction to consider these
petitions underwent a series of challenges. Eventually, the
Supreme Court confirmed that non-citizen detainees at Guantanamo
Bay alleged by the Government to be enemy combatants do have the
Constitutional right to petition federal courts for habeas relief
in order to challenge the legality of their detention. See
Boumediene v. Bush, 128 S.Ct. 2229 (2008).
While these issues were being litigated, Petitioners’ counsel
sought greater access to their clients, as they became concerned
over reports of hunger strikes at Guantanamo Bay.3 See Pets.’ Mot.
to Compel Access to Counsel and Information Related to Medical
Treatment (Sept. 20, 2005) [Dkt. No. 49]. After briefing and oral
2
(...continued)
granted. See Minute Order, Jan. 26, 2009.
3
The Government designates detainees as hunger-strikers
after they have missed nine consecutive meals. Decl. of Captain
Bruce C. Meneley, M.D. (Aug. 22, 2008) (“August Meneley Decl.”), at
¶ 12 (Ex. F to Gov’s Opp’n (Jan. 23, 2009)).
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argument, the Court entered an Order [Dkt. No. 62] that required
Respondents to “provide notice to Petitioners’ counsel within 24
hours of the commencement of any forced feeding of their clients,”
and to provide medical records for those detainees being force-fed.
Order (Oct. 25, 2005).
In the wake of that Order, Petitioner Bawazir asked the Court
on February 28, 2006 [Dkt. No. 68] to provide non-habeas relief to
improve the conditions under which he was being held at Guantanamo
Bay. See Emergency Mot. for Preliminary Inj. Against Further
Torture of Mohammed Bawazir (“Original Emergency Mot.”) [Dkt. No.
68]. On March 9, 2007, Petitioner’s counsel learned of additional
evidence of hunger-striking, and renewed their Original Emergency
Motion. [Dkt. No. 96]. The two Emergency Motions were denied
without prejudice on March 10, 2008, pending resolution of the
jurisdictional issue presented in Boumediene, which was then
pending in the Supreme Court. See Order (Mar. 10, 2008) [Dkt. No.
123].
On January 8, 2009, Petitioner filed a Renewed Emergency
Motion seeking injunctive relief. The Motion was supplemented on
January 9, 2009 [Dkt. No. 236] and January 22, 2009 [Dkt. No. 257].
The Government filed Oppositions on January 12, 2009 [Dkt. No. 239]
and January 23, 2009 [Dkt. No. 260]. On January 22, 2009,
Petitioner Hamdoon joined Petitioner Bawazir’s Motion. On January
26, 2009, the Court held a lengthy motions hearing.
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B. Factual Background
On January 7, 2009, counsel for Petitioner Bawazir learned
that Respondents had resumed force-feeding their client in November
of 2008.4 In the same week, on January 12, 2009, counsel learned
that Petitioner Hamdoon had been force-fed since January 6, 2009;
in addition, Hamdoon had undergone forced-feeding in the period
between November 8 and December 21, 2008. See Pet. Hamdoon’s Mot.
to Join, at 1-2. Petitioners’ counsel did not receive, in a timely
fashion, the notice or medical records to which they were entitled
under the Court’s Order of October 25, 2005.5
Parties do not dispute that Respondents’ method for forced-
feeding is to strap a hunger-striking detainee into a restraint-
chair, with straps tightly restraining his arms, legs, chest, and
4
It is unclear exactly when this round of forced-feeding
began. In his Renewed Emergency Motion, Petitioner says that the
enteral feeding resumed on November 18, 2008, see Renewed Emergency
Mot., at 2. After speaking directly to Petitioner Bawazir, counsel
filed a motion to join Petitioner Hamdoon; in that Motion, they
report that Respondents resumed enteral feeding on November 14,
2008. Pet. Hamdoon’s Mot. to Join, at 1. The Court’s independent
review of the medical records provided as Exhibit A at oral
argument indicate that forced-feeding dated back to at least
November 16, 2008. See Exhibit A, Progress Notes for ISN 440, Nov.
16, 2008 (ISN 440 (12 Jan 2008) 001896-99).
5
Incredible as it sounds, the Government admitted it had
no formal system in place for tracking court orders, and simply
relied on receiving emails from individual lawyers working at the
Department of Defense or at the Department of Justice to issue
reminders to comply with the orders. See Decl. of Commander Don A.
Martin (“Martin Decl.”), at ¶ 4-5 (Ex. H to Gov’s Opp’n (Jan. 23,
2009)); see also Oral Arg. (Jan. 26, 2009) (telephonic testimony of
Commander Martin).
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forehead, and to administer a nutritional formula via a feeding
tube inserted through one nostril. The process of administering
the formula usually takes approximately one hour. See Renewed
Emergency Mot., at 2; Gov’s Opp’n (Jan. 23, 2009), at 8-9 (citing
August Meneley Decl., at ¶ 4).
Parties do not agree on the need to restrain these Petitioners
in such a restraint-chair. Moreover, at times, they have disagreed
about whether the feeding tube should be left in place between
enteral feedings.6
In response to Petitioners’ claims, Respondents recite the
circumstances that led to the restraint-chair policy, including a
history of resistance by detainees and assaults against staff, and
the consideration of several other less restrictive methods of
force-feeding the hunger-strikers. See Gov’s Opp’n (Jan. 23,
2009), at 4-8. In doing so, they cite to several sworn
declarations made by staff at Guantanamo Bay, attesting to the need
to use restraints and their policy of using such restraints in a
“safe and humane manner.” Gov’s Opp’n (Jan. 23, 2009), at 9; see,
e.g., Supplemental Decl. of Major General Jay W. Hood (“Supp. Hood.
Decl.”) (Ex. 3 to Gov’s Supp. Memo. in Opp’n to Pet.’s Original
6
After briefing this issue and requesting that the Court
order the nasal-gastric tube to remain in place between feedings,
see Renewed Emergency Mot., at 2-3; Proposed Order, Petitioners
withdrew this request at oral argument, see Oral Arg. (Jan. 26,
2009), presumably because they recognized that leaving the tube in
place was causing its own set of medical problems, i.e., sinusitis,
bacterial infection, irritation, etc.
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Emergency Mot. (Mar. 13, 2006) [Dkt. No. 74]); Decl. of Captain
Bruce C. Meneley, M.D. (“Meneley Decl.”) (Ex. E to Gov’s Opp’n
(Jan. 23, 2009)); Martin Decl. Respondents maintain that the
restraint-chair policy is necessary to keep both detainees and
staff as safe as possible during enteral feeding, that the feeding
is not any more painful than required, and that the feeding tube is
removed from Petitioner Bawazir and re-inserted twice a day because
leaving it in between feeding has caused him sinus infections and
discomfort. Gov’s Opp’n (Jan. 23, 2009), at 10-12.
Petitioner Bawazir represents that he is compliant with
enteral feeding, and therefore the restraint-chair is unnecessary.
Renewed Emergency Mot., at 2-3. Compounding the pain and upsetting
nature of this excessive treatment, Petitioners maintain, is the
fact that military personnel have begun to administer the enteral
feeding rather than medical personnel. Id. (citing Decl. of Ramzi
Kassem (Ex. A and B to Pets.’ Supp. to Renewed Emergency Mot. (Jan.
9, 2009)); see also Decl. of Kristin B. Wilhelm (Ex. A to Pet.
Hamdoon’s Mot. to Join).
Further, the parties agree that both Petitioners suffered
medical problems (although not necessarily related to the forced-
feeding) that required additional treatment: Petitioner Bawazir
suffered from sinusitis and hemorrhoids, while Petitioner Hamdoon
suffered from tonsilitis. Oral Arg. (Jan. 26, 2009). Petitioner
Bawazir alleges that hunger-striking detainees are denied medical
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treatment “unless and until they end their hunger strike.” Pet.
Hamdoon’s Mot. to Join, at 3. The Government insists that medical
care is not withheld punitively, and has provided Petitioners’
counsel with their medical records, maintained by Guantanamo Bay
staff, to disprove that allegation. Ex. A and B to Oral Arg. (Jan.
26, 2009).
II. STANDARD OF REVIEW
Courts may grant a preliminary injunction only if the movant
“demonstrate[s] (1) a substantial likelihood of success on the
merits, (2) that he would suffer irreparable injury if the
injunction is not granted, (3) that an injunction would not
substantially injure other interested parties, and (4) that the
public interest would be furthered by the injunction.” Katz v.
Georgetown Univ., 246 F.3d 685, 687-88 (D.C. Cir. 2001). These
factors must be balanced against one another in determining if an
injunction will be granted. See CityFed Financial Corp. v. Office
of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995) (“In
deciding whether to grant an injunction, the district court must
balance the strengths of the requesting party's arguments in each
of the four required areas.”).
Recently, the Supreme Court has refined what the movant’s
burden is in meeting this standard. The Court stressed that the
party seeking the injunction must show that success on the merits
and irreparable harm are likely, not merely possible. See Winter
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v. Natural Res. Def. Counsel, U.S. , 129 S.Ct. 365, 375
(2008); Munaf v. Geren, U.S. , 128 S.Ct. 2207, 2219 (2008).
Preliminary injunctive relief, such as that which is requested
here, the Court emphasized, “is an ‘extraordinary and drastic
remedy.’” Munaf, 128 S.Ct. at 2219; see Winter, 129 S.Ct. at 379.
Further, the Winter Court gave particular weight, albeit in a
different factual context, to the fact that “[courts] give great
deference to the professional judgment of military authorities
concerning the relative importance of a particular military
interest.” Winter, 129 S.Ct. at 377 (internal citation omitted).
III. ANALYSIS
The Court wishes to emphasize, at the very beginning of its
analysis, how seriously it has weighed the allegations made by
Petitioners. The detainees at Guantanamo Bay have waited many long
years (some have waited more than seven years) to have their cases
heard by a judge so that the legality of their detention could be
adjudicated in a court of law. During that time they, like all
prisoners, have remained at the mercy of their captors. From all
accounts -- those presented in classified information the Court has
had access to, in affidavits of counsel, and in reports from
journalists and human rights groups -- their living conditions at
Guantanamo Bay have been harsh. There have been several episodes
of widespread protests by the detainees, and many of them have
engaged in hunger strikes of both short-term and very long-term (5
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years and more) duration. Many detainees have complained of brutal
treatment, lack of medical care, and long placements in solitary
confinement. To this Court’s knowledge, none of these allegations,
or the Government’s denials, have been fully tested and subjected
to the rigors of cross-examination in open court. They may never
be.
Despite being painfully aware of this situation, the Court
must -- if it is to carry out its obligation to faithfully follow
the rule of law -- apply the well-established legal principles set
forth above that govern Petitioners’ request for injunctive relief.
The first requirement, that the moving party demonstrate a
substantial likelihood of success on the merits, is the most
weighty. For the reasons spelled out in this Opinion, Petitioners
cannot succeed on the merits of their claims: this Court lacks
jurisdiction and therefore does not have the authority to grant the
relief they request.
A. Petitioners’ Claims Are Unlikely to Succeed on the Merits
Because the Court Lacks Jurisdiction and Because the
Government Has Not Acted with “Deliberate Indifference.”
As noted, courts are instructed to balance the four prongs of
the preliminary injunction standard in making their decisions. The
first prong, however, weighs more heavily than the others and has
been described as the most significant. See Katz, 246 F.3d at 688
(citing to Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d
12, 16 (1st Cir. 1996) for proposition that “[l]ikelihood of
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success is the main bearing wall of the four-factor framework.”).7
While each prong of the preliminary injunction standard will be
addressed, the Court places particular weight on the first because
of the substantial likelihood that Petitioners will not succeed on
the merits, as well as the relative weakness of their arguments on
the third and fourth factors. For the reasons discussed below,
Petitioners have not demonstrated that they are likely to prevail
on the merits of their claims.
1. The Military Commissions Act of 2006 Denies
Jurisdiction to Rule on Petitioners’ Conditions of
Confinement Claim.
Section 7 of the Military Commissions Act of 2006 (“MCA”),
Pub. L. 109-366, Oct. 17, 2006, 120 Stat. 2600, amends 28 U.S.C.A.
§ 2241. This section of the MCA deals with the right of enemy
combatants to bring habeas corpus petitions, and to ask for relief
related to their conditions of confinement; § 2241(e)(1), its first
sub-section, was the provision under review in Boumediene. The
amendment to its second sub-section, § 2241(e)(2), strips federal
courts of jurisdiction as to “any other action against the United
States . . . relating to any aspect of the detention, transfer,
treatment, trial, or conditions of confinement.” Petitioners seek
an injunction to alter the conditions under which they are force-
7
For example, in Katz, the court explained that “[g]iven
the inadequacy of [Dr. Katz]’s prospects for success on the merits,
there may be no showing of irreparable injury that would entitle
him to injunctive relief.” 246 F.3d at 688 (internal citation and
quotations omitted).
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fed and provided medical treatment. The relief they seek clearly
falls under § 2241(e)(2). See In re Guantanamo Bay Detainee
Litigation, 577 F.Supp.2d 312, 314 (D.D.C. 2008) (Hogan, J.)
(finding that request for blanket and pillow in cell “directly
‘relat[es]’ to Petitioner's ‘detention, . . . treatment, . . . or
conditions of confinement,’” under § 2241(e)(2)). If this section
of the MCA remains valid after the decision in Boumediene, the
Court has no jurisdiction to decide this Motion.
Petitioners challenge the validity of § 2241(e)(2) by arguing
that the Supreme Court ruled all of Section 7 of the MCA
unconstitutional in Boumediene. Their challenge must fail.
Although the Court, infra, resolves the question of jurisdiction by
reference to the explicit language of Boumediene, case law, and
canons of statutory interpretation, the issue is not absolutely
clear-cut. However, any difficulty resolving the jurisdictional
issue only argues in favor of denying Petitioners’ request. See
Munaf, 128 S.Ct. at 2219 (noting that difficult jurisdictional
issues make “success more unlikely due to potential impediments to
even reaching the merits”) (emphasis in original).
Boumediene struck down as unconstitutional § 2241(e)(1), which
denied detainees the right to habeas corpus review in federal
court. See 128 S.Ct. at 2240 (holding that appellate review of
detainees’ status not “adequate and effective substitute for habeas
corpus”). In doing so, the Supreme Court, in clear and direct
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language, refused to address “the reach of the writ with respect to
claims of unlawful conditions of treatment or confinement.” Id. at
2274. Those are precisely the claims which Petitioners raise in the
pending Motion.
In addition to the Supreme Court’s own language, there is a
presumption that when a court invalidates a statute as
unconstitutional, it does so on grounds drawn as narrowly as
possible. See Ayotte v. Planned Parenthood of Northern New
England, 546 U.S. 320, 329 (2006) (“[W]e try not to nullify more of
a legislature's work than is necessary . . . .”). Rather than
using expansive language in striking down § 2241(e)(1), the
Boumediene Court went out of its way to include the limiting
language quoted above. Consequently, this Court must follow the
lead of the Supreme Court and “refrain from invalidating more of
the statute than is necessary whenever an act of [C]ongress
contains unobjectionable provisions separable from those found to
be unconstitutional.” Alaska Airlines, Inc. v. Brock, 480 U.S.
678, 684 (1987) (internal alterations and quotations omitted).
Finally, the Court finds persuasive the analysis of other
judges in this District who have also considered the issue. Three
judges have now ruled that Boumediene did not invalidate
§ 2241(e)(2). See In re Guantanamo Bay Detainee Litigation, 570
F.Supp.2d 13, 17-19 (D.D.C. 2008) (Urbina, J.) (rejecting under
Alaska Airlines argument that court could invalidate § 2241(e)(2)
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under Boumediene); In re Guantanamo Bay Detainee Litigation, 577
F.Supp.2d at 313 (Hogan, J.) (noting “long-standing rule of
severability” applies); Khadr v. Bush, F.Supp.2d , 2008 WL
4966523, at *6-8 (D.D.C. 2008) (reasoning that narrowing language
in Boumediene “supports the conclusion that the Supreme Court meant
only to invalidate subsection (e)(1)”).
Petitioners, in arguing to the contrary, read Boumediene to
invalidate both § 2241(e)(1) and § 2241(e)(2), and invoke our Court
of Appeals’ recent decision in Bismullah v. Gates, F.3d ,
2009 WL 48149 (D.C. Cir. 2009), to support their statutory
interpretation. See Pets.’ Supplemental Memo. in Further Support
of Mot. (Jan. 22, 2009) (“Pets.’ Jurisdiction Memo.”) [Dkt. No.
257], at 4 n.2. Although there is one sentence in Boumediene which
could be read to support Petitioners’ position, see 128 S.Ct. at
2240 (“Therefore § 7 of the Military Commissions Act of 2006 (MCA),
28 U.S.C.A. § 2241(e) (Supp.2007), operates as an unconstitutional
suspension of the writ.”), the thrust of the opinion clearly deals
with the Constitutionality of § 2241(e)(1) and its suspension of
the writ of habeas corpus. See id. at 2244-47 (discussing history
of writ as representing “freedom from unlawful restraint” and
“vital instrument for the protection of individual liberty”); 2262
(discussing holding with reference to “privilege of habeas corpus”
and ability to “challenge the legality of . . . detention”); 2265-
67 (striking down Congress’ efforts to substitute another remedy
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for habeas corpus after engaging in jurisdiction-stripping under
§ 2241(e)(1)).
Thus, even though the one sentence Petitioners rely upon could
have been drafted more narrowly to explicitly cover only
§ 2241(e)(1), the Court concludes that the Supreme Court’s direct
disavowal of reaching any conclusion about the validity of
§ 2241(e)(2), Boumediene, 128 S. Ct. at 2274, must overcome any
ambiguity in that sentence.8
Further, the circumstances in Bismullah are distinguishable
from this case. In Bismullah, the Court of Appeals inquired into
Congressional intent to enact both § 2241(e)(1), which stripped
district courts of habeas jurisdiction, as well as § 1005(e)(2) of
the Detainee Treatment Act (“DTA”), Pub.L. 109-148, 119 Stat. 2739,
which gave the Court of Appeals “exclusive” jurisdiction to review
administrative trials at Guantanamo Bay. Bismullah, 2009 WL 48149,
at *3. Once Boumediene struck down § 2241(e)(1), the Court of
Appeals was faced with the question of whether Congress would have
enacted the DTA provision had it known that its efforts to strip
habeas jurisdiction in § 2241(e)(1) were unconstitutional. Id. at
*2.
8
As is well known, much of the Guantanamo Bay litigation
has raised profound questions about the meaning of our Constitution
and the powers of all three branches of government. Much of that
litigation has taken place under enormous time pressures.
Occasionally, a sentence in a written opinion, even from the
Supreme Court, may slip through that is not quite as tightly
crafted as, from hindsight, might be desirable.
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The Court of Appeals held that had Congress known that the
jurisdiction-stripping was unconstitutional, i.e., that district
courts could not be denied the jurisdiction to review habeas
claims, then it would not have also provided for the “largely
duplicative process” of appellate review. Id. at *6. The Court of
Appeals overcame the presumption of severability in part because
the restoration of habeas jurisdiction undercut the intent of
Congress to give the Court of Appeals exclusive jurisdiction over
a detainee’s challenge to his detention. See id. at *3
(“Therefore, DTA review, by opening an avenue of relief alongside
the writ of habeas corpus, can no longer ‘function in a manner
consistent with the intent of Congress.’” (internal citation
omitted)).
Here, on the other hand, the two provisions of § 2241(e) do
not flow from a common Congressional intent, i.e., limiting
judicial review of detention. Rather, § 2241(e)(1) dealt with
challenges to the legal justification for detention, whereas
§ 2241(e)(2) deals with challenges to “aspect[s]” of that
detention, namely the conditions of such detention. The two sub-
sections address separate and distinct topics, and thus reflect a
statutory scheme unlike the one considered in Bismullah where one
section (§ 1005(e)(2)) was meant to complement another
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(§ 2241(e)(1)).9 In other words, unlike the duplicative and
contradictory scheme that the Bismullah Court analyzed, there is
reason to believe that the “legislature [would] have preferred what
is left of [this] statute to no statute at all[.]” Ayotte, 546
U.S. at 330.
2. Even Assuming this Court Has Jurisdiction,
Petitioners Likely Cannot Show that They Were
Treated with “Deliberate Indifference.”
The Supreme Court has held that “[a] prison official’s
‘deliberate indifference’ to a substantial risk of serious harm to
an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511
U.S. 825, 828 (1994). To determine whether an official acted with
such indifference, courts look to the official’s subjective
awareness of the risk. Id. at 847 (“[A] prison official may be
held liable under the Eighth Amendment for denying humane
conditions of confinement only if he knows that inmates face a
substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it.”). Additionally,
courts facing these issues must be mindful of the limits of their
9
Nonetheless, the reasoning in Bismullah does apply to a
related area of analysis. Petitioners maintain that Congress’
apparent contemplation and rejection of a severability clause in
the MCA represents “further proof of the fact that § 2241(e)(1) is
not severable from § 2241(e)(2).” Pets.’ Jurisdiction Memo., at 4.
Bismullah relies on Alaska Airlines, 480 U.S. at 686, in observing
that, “[t]he Congress's failure to include a non-severability
clause does not create a presumption of severability, any more than
the absence of a severability clause implies non-severability.”
2009 WL 48149, at *4.
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expertise in evaluating prison policies. A regulation that
“impinges on inmates’ constitutional rights” may still be valid if
“it is reasonably related to legitimate penological interests.”
Turner v. Safely, 482 U.S. 78, 79 (1987).
At oral argument, the parties agreed that for a court to
intervene in conditions of confinement decisions, the actions of
the prison staff must demonstrate “deliberate indifference” to the
detainee’s well-being. Oral Arg. (Jan. 26, 2009); see O.K. v.
Bush, 344 F.Supp.2d 44 (D.D.C. 2004). Petitioners do not in this
most recent round of motions make an explicit argument that their
treatment amounts to a Constitutional violation, but their past
arguments on similar facts, as well as their current allegations of
severe mistreatment, suggest as much. See Original Emergency Mot.,
at 10-12; Renewed Emergency Mot., at 3 (arguing that alleged
Government action “would constitute torture”). Assuming, then,
that a Constitutional violation is being asserted, the Court must
determine whether there is a likelihood that their alleged
mistreatment at the hands of the Respondents represents
“‘deliberate indifference’ to the detainee’s ‘serious medical
needs.’” O.K., 344 F.Supp.2d at 61 (internal citations omitted).
Courts considering similar cases have found that force-feeding
hunger-strikers, or the use of a restraint-chair, does not in and
of itself sink to the level of deliberate indifference. See Grand
Jury Subpoena John Doe v. United States, 150 F.3d 170, 172 (2d Cir.
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1998) (“[force-feeding] order does not violate a hunger-striking
prisoner’s constitutional rights”); Fuentes v. Wagner, 206 F.3d
335, 345 (3d Cir. 2000) (reasoning that restraint-chair not per se
violation of Eighth Amendment, but can rise to that level if used
with “sufficiently culpable state of mind”).
Without resolving all factual disputes before the Court, it is
clear that Respondents’ treatment of these Petitioners does not
approach “deliberate indifference.” Respondents are acting out of
a need to preserve the life of the Petitioners rather than letting
them die from their hunger strikes. The use of the restraint-chair
has been determined to be necessary to achieve that end. It is
standard policy to use the restraints on all hunger-striking
detainees, see August Meneley Decl., at ¶ 13, with less restraint
used for those who, like Petitioner Bawazir, are compliant, see
Oral Arg. (Jan. 26, 2009).10 Use of the chair has been vetted by
officials from the Bureau of Prisons, is overseen by professional
medical staff, and was initiated by Respondents only after using
less restrictive measures that were met with resistance from
detainees. See Supp. Hood Decl., at ¶¶ 7-10.
Although there is evidence that Petitioners were kept in the
restraint-chair for a longer period than Respondents admit to, see,
e.g., Oral Arg. (Jan. 26, 2009); August Meneley Decl., at ¶13
10
Because Petitioner Bawazir has become compliant,
Respondents use only five of the six restraints which are
available. Oral Arg. (Jan. 26, 2009).
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(“This [feeding] process normally lasts less than an hour.”);
Restraint Observation Sheet for ISN 440, Jan. 7, 2009 (ISN 440 (12
Jan 2008) 001601) (Petitioner Bawazir in chair from 7:34 a.m. to
9:35 a.m.); Restraint Observation Sheet for ISN 576, Dec. 8, 2008
(ISN 576 000153) (Petitioner Hamdoon in chair from 8:10 a.m. to
10:01 a.m.), such extended periods of force-feeding and restraint
do not in and of themselves reflect deliberate indifference. See
Fuentes; see also Birdine v. Gray, 375 F.Supp.2d 874 (D.Neb. 2005).
Petitioners charge that use of the restraint-chair despite
their compliance with enteral feeding, and the withholding of
medical treatment to prevent hunger-striking, run afoul of the
Constitution. The “withholding charge,” however, is belied by the
extensive medical records -- entered as exhibits at oral argument
by the Respondents -- documenting treatment Petitioners have been
given. Although the care provided may not at all times have risen
to the level of care provided at Johns Hopkins Hospital or the Mayo
Clinic, it was responsive to complaints, was consistently
administered, resolved many of those complaints, and does not
appear to have been withheld punitively. Based on the existing
record, it cannot be said that Respondents’ medical treatment of
Petitioners constituted deliberate indifference. See, e.g.,
Chronological Record of Medical Care for ISN 576, Jan. 5, 2009 (ISN
576 000043) (refusing medical treatment); JTF-GTMO Medication
Administration Records for ISN 576, Nov. 2008 (ISN 576 000067-73)
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(detailing feeding records and prescriptions); Medical Record for
ISN 440 (ISN 440 (12 Jan 2008) 001900) (detailing medical
treatment).11
As noted, the restraint-chair is used as a matter of policy to
protect staff and detainees; restraints are lessened for compliant
detainees like Bawazir. Oral Arg. (Jan. 26, 2009). Petitioners
insist that the use of the chair on a compliant detainee amounts to
such an unnecessary and painful restriction that it is tantamount
to torture.12 See Oral Arg. (Jan. 26, 2009); Renewed Emergency
Mot., at 2. Resolution of this issue requires the exercise of
penal and medical discretion by staff with the appropriate
expertise, and is precisely the type of question that federal
courts, lacking that expertise, leave to the discretion of those
who do possess such expertise. See, e.g., Bell v. Wolfish, 441
U.S. 520, 562 (1979) (“[T]he inquiry of federal courts into prison
management must be limited to the issue of whether a particular
system violates any prohibition of the Constitution . . . .”);
Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754 (3d Cir.
11
It should be noted that on a number of occasions,
Petitioners refused either the diagnostic examinations they needed
or the medical treatment that was offered.
12
Curiously, neither party devotes any serious attention in
their pleadings to the definition of “torture” and whether the
conduct in question meets that definition. Given the parties’
avoidance of the issue, as well as the conclusion that the Court
lacks jurisdiction, it is not necessary to reach the issue.
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1979) (refusing to “second-guess” medical judgment of prison
doctors).
B. Petitioners Have Not Shown They Would Suffer Irreparable
Harm if an Injunction Is Not Granted.
To prevail on this factor, Petitioners must demonstrate not
merely a possibility of irreparable injury, but that such an injury
is “likely in the absence of an injunction.” Winter, 129 S.Ct. at
375 (emphasis in original).
Petitioners do not allege that use of the restraint-chair
poses a risk of death or grave danger or permanent injury to
Petitioners. Oral Arg. (Jan. 26, 2009). In advancing the best
interests of their clients, they urge in the strongest possible
terms that the conditions of their clients’ confinement are
painful, unnecessary, and must be improved. It remains the case,
however, that the treatment of these two Petitioners -- namely, the
use of a restraint-chair for forced-feeding -- does not in and of
itself demonstrate that irreparable injury is likely. Short of
establishing this, Petitioners cannot prevail on this factor.13
Additionally, Respondents have demonstrated that they are
delivering the regular medical care that the declarations attest
to. Cf. Meneley Decl., at ¶¶ 6-12. In the medical records entered
13
The Court does not minimize what Petitioners are
suffering. It is impossible to fully assess the extent of any such
suffering they may be experiencing without exposing them to the
searchlight of in-person testimony and cross-examination. However,
they have chosen to express their protest by engaging in a hunger
strike. It is the obligation of the Government to keep them alive.
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as exhibits at oral argument, Petitioners’ medical requests and
treatment appear to have been contemporaneously reduced to writing.
They contain detailed records of each enteral feeding as well as
“Chronological Records of Medical Care.” The records appear to
reflect attention to medical requests and vital health information.
See, e.g., Daily Vital Signs and Calorie Count (2008) (ISN 440 (12
Jan 2008) 001930-33; ISN 576 000364-368). For instance, the
records document Petitioner Bawazir’s complaints of hemorrhoids-
related pain, as well as his refusal to undergo evaluation for that
condition. See Chronological Record of Medical Care (ISN 440 (12
Jan 2008) 001905). At oral argument, counsel for Respondents
outlined the treatment that Petitioner Hamdoon has received for
throat pain. Oral Arg. (Jan. 26, 2009).
Given the strength of the other three factors which must be
balanced when considering issuance of a preliminary injunction --
particularly the weakness of the first factor discussed above --
Petitioners’ arguments on irreparable harm do not entitle them to
the extraordinary remedy of injunctive relief.
C. The Government May Well Suffer Substantial Injury If the
Injunction Is Granted.
Respondents have demonstrated, based on prior experience, that
significant harm could befall medical and security staff at
Guantanamo Bay if the injunction is granted. As noted, military
authorities implemented the feeding protocols in order to prevent
long-term harm to the detainees; the protocols also responded to a
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concern for the safety of medical personnel implementing the forced
feeding. According to unchallenged factual representations made by
the Government, some hunger-striking detainees, including
Petitioners, have been assaultive to medical staff and guards
during attempts to feed them enterally. See id. It was reasonable
and professionally responsible for Respondents to have consulted
with officials from the Bureau of Prisons in implementing security
policies to minimize this danger. See Supp. Hood Decl., at ¶ 7-8.
An injunction that interferes with the restraint-chair protocols
for these Petitioners -- however compliant they may be at the
moment -- could endanger medical staff in the future if Petitioners
become combative or assaultive.
In addition, the possibility that granting the injunction
could provide other detainees with a roadmap of how to evade the
restraint-chair policy. In such a scenario, the medical staff
would be left in the same position as it was before any restraints
were used: vulnerable to concerted efforts by detainees to use the
forced-feeding as an opportunity to inflict harm on medical and
military personnel. See Gov’s Opp’n (Jan. 23, 2009), at 6
(outlining detainee resistance by referring to declarations of
Guantanamo Bay personnel). The restraint-chair is used to keep
both the detainee and the staff as safe as possible. Any order to
prohibit its use could upset the balance of security that
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Respondents have worked -- and, unlike the Court, have been trained
-- to achieve.
D. The Public Interest Would Not Be Furthered by Issuance of
an Injunction.
In light of the previous discussion, the Court concludes that
Petitioners have failed to demonstrate that barring the use of a
restraint-chair for them would further the public interest.
IV. CONCLUSION
For the reasons set forth above, the fact that Petitioners
cannot satisfy one of the pre-requisites to the granting of a
preliminary injunction, namely, that there is a substantial
l]ikelihood of success on the merits, far outweighs all other
considerations. Accordingly, their Renewed Emergency Motion [Dkt.
No. 234] is hereby denied.
/s/
February 10, 2009 Gladys Kessler
United States District Judge
Copies via ECF to all counsel of record
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