Rabbani v. Bush

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MOHAMMAD AHMAD GHULAM RABBANI, ;
Petitioner, i
v. i Civil No. 05-1607 (RCL)
BARACK OBAMA, et a]. 3
Respondents. ;
____.__________________)
MEMORANDUM OPINION
Before the Court is the petitioner’s motion for a preliminary injunction [306] seeking to
enjoin the respondents (hereinafter, the government) from force-feeding hunger-striking
detainees held at the United States Naval Base at Guantanamo Bay, Cuba. Upon consideration
of the petitioner’s motion [306], the government’s opposition [319], the petitioner’s reply [320],
the petitioner’s and government’s respective briefs regarding any claims remaining to be decided
in this case [341, 344], the petitioner’s status report [346] filed December 16, 2014. the
applicable law, and the entire record herein, the Court will DENY the petitioner’s motion for a
preliminary injunction,
I. BACKGROUND
Petitioner Mohammad Ahmad Ghulam Rabbani is a Pakistani national who has been
detained at Guantanamo Bay for more than ten years without ever having been charged with a
crime. Pet’r’s Mot. Prelim. In]. 1. Since February 2013, Rabbani, along with other detainees,
has engaged in a hunger strike to protest his detention. Id. In response to Rabbani’s hunger
strike, the medical staff at Guantanamo Bay determined that it was necessary to forcibly feed the
petitioner through an enteral feeding process, See Resp’t’s Opp’n 5-6, 13—14. On occasions
when Rabbani has refused either to walk voluntarily to his enteral feeding session or to return to
his cell following a session, Guantanamo Bay guards have employed Forced Cell Extraction
(“FCE”) procedures to move the petitioner. Id. 15. Rabbani is not seeking to enjoin force
feeding as a method for preventing death or serious bodily injury to hunger-striking detainees.
Id, at 2 (The “[p]etitioner wishes to make clear that he is not seeking an injunction to permit him
to continue his hunger strike until death”). Instead, the thrust of Rabbani’s grievance is that the
enteral feeding process is unconstitutionally “forcible and violent.” See Mot. 41.
Confronting a force-feeding fact pattern substantially similar to—if not even more
“forcible and violent” than—Rabbani’s, Judge Kessler recently denied a petitioner’s motion for a
preliminary injunction to enjoin the methods and protocols governing the force-feeding process
at Guantanamo Bay. Dhiab v. Obama, No. 05 Civ. 1457, 2014 WL 5795483 (D.D.C. Nov. 7,
2014). Prior to Judge Kessler’s Memorandum Opinion, Petitioner Dhiab had narrowed his
claims to those concerning (1) the insertion and removal of a nasogastric tube; (2) the use of
auscultation—“a procedure to ensure that the nasogastric tube is properly pushed into the
stomach, rather than the lungs”; (3) the use of a Five Point Restraint Chair during enteral
feeding; (4) force-feeding in the absence of imminent risk; and (5) whether non-medical officials
have final authority to allow force-feeding. Id at *3, *5-*10. 1n reaching the conclusion that
Dhiab’s petition was insufficient for a preliminary injunction, Judge Kessler evaluated the
remaining force-feeding claims under the “deliberate indifference” standard established by the
Supreme Court in Estelle v. Gamble, 429 US. 97 (1976).1 As Judge Kessler explained, the
' The one exception to Judge Kessler’s use of the deliberate indifference standard was with regard to the issue of
final authority to allow force-feeding, which the Judge decided under the “likelihood of success” prong of the
preliminary injunction test. Dhiab, 2014 WL 5795483, at *8-*9
2
to prisoners. Eg, Overton v. Bazzetta, 539 US. 126, 132 (2003) (“We must accord substantial
deference to the professional judgment of prison administrators . . . .”); Amatel, 156 F.3d at 204
(“[Cjourts must give a large measure of deference to the prison administrators who are actively
involved in the daily operations of the institution”); see also Beard v. Banks, 548 US. 521, 530
(2006) (At the summary judgment stage, the Supreme Court noted that it “must distinguish
between evidence of disputed facts and disputed matters of professional judgment. In respect to
the latter, [the Court’s] inferences must accord deference to the views of prison authorities”). In
fact, the Circuit has made clear that Guantanamo Bay administrators, in particular, must be
afforded great deference under Turner. See Hatim, 760 F.3d at 58-60; see also Munaf v. Geren,
553 US. 674, 689 (2008) (“[C]ourts traditionally have been reluctant to intrude upon the
authority of the Executive in military and national security affairs.” (internal quotation marks
and citation omitted)).
Even when considering the three remaining Turner factors, Rabbani’s claim fails in the
balance. The second factor asks whether Rabbani has alternative means of exercising his right to
refuse unwanted force-feedings. Turner, 482 US. at 90. One plain alternative for Rabbani to
avoid involuntary enteral feeding is to voluntarily eat. The Court does not make this point
glibly; nor does it seek to remark on the reasons why a detainee who has been held without
charge for ten years would protest such a detention. However, under the considerations of
Turner, ending his hunger strike represents an unmistakable alternative avenue for Rabbani to
exercise any right he may have to avoid unwanted force-feedings. See id. (“Where other avenues
remain available for the exercise of the asserted right, courts should be particularly conscious of
the ‘measure ofjudicial deference owed to corrections officials . . . in gauging the validity ofthe
regulation.” (internal quotation marks and citations omitted)).
ll
Regarding the third factor, while the government may argue that any alterations to its
current force-feeding policy would endanger its legitimate interest in preserving the lives of
detainees and call into question its authority over security decisions at Guantanamo Bay, it is not
obvious to the Court that accommodating more of Rabbani’s requests to avoid force-feeding
would meaningfully exert the resources of the prison. Yet regardless of how the Court would
resolve the third factor, the first, second, and fourth factors militate in favor ofthe government.
The fourth factor—whether there are “ready alternatives” to the force—feeding practices——
is a focal point of Rabbani’s argument that the manner in which he is force-fed is constitutionally
unlawful. See, e.g., Mot, Prelim. Inj. 32-34; Notification 4. Rabbani wishes to narrow the final
Turner factor to evaluating whether there are ready alternatives to a number of the individual
steps that make up the force-feeding process. But again, the Court finds that Turner governs
whether force-feeding generally infringes on a constitutional right to be free from unwanted
medical treatment. Consequently, the question is whether there are “obvious, easy alternatives”
to force-feeding in order to nourish a hunger-striking detainee, not whether there are alternative
means for each procedure employed by the government as part ofthe force-feeding process. See
Turner, 482 US. at 90. In evaluating this case for its likelihood of success on the merits, the
Court perceives no ready alternatives to force-feeding when an inmate is voluntarily starving
himself and nourishment is the only way to keep him alive.
Thus, as with the deliberate indifference standard, analysis under Turner’s reasonably
related standard prevents Rabbani from demonstrating a likelihood of success on the merits.7
7 As noted above, supra n.1, Judge Kessler did not decide the dispute concerning final authority to allow force—
feeding under the deliberate indifference standard, but rather by simply evaluating whether Dhiab demonstrated a
likelihood of success on the merits. Rabbani similarly claims that “the Guantanamo Bay protocols vest the
[Guantanamo Bay] Commander"—and not a physician—“with the authority to decide whether to force-feed a[]
[detainee]." Mot. Prelim. Inj. 33, Based on the record in this case, the Court agrees with—and adopts—Judge
Kessler’s finding that the petitioner “simply misreads the regulations governing enteral feeding,” and that “the
recommendation for enteral feeding must originate with a physician or physician’s assistant and must be approved
12
B. Forced Cell Extractions
Rabbani also argues that the forcible removal of detainees from their cells to the force-
feeding location is unlawful under either Turner or Estelle. See Mot. Prelim. Inj. 5, 41;
Notification 7-8. The Court finds that such a claim is highly unlikely to succeed on the merits.
Rabbani accepts the premise that force-feeding is lawful ifa detainee is at imminent risk
of death or great bodily harm. Mot. Prelim. lnj. 2, 4]; Notification 4. If such an imminent risk is
present, then, Guantanmo Bay guards must be permitted to physically move an uncooperative
hunger-striking detainee from his cell in order to be fed in a medically approved location.
Rabbani attempts to characterize the so—called Forced Cell Extractions (“FCES”) as unlawfully
"routine and indiscriminate,” Notification 7, while also conceding that FCES occur because he
refuses to leave his cell voluntarily for mandated force-feedings, Mot. Prelim. Inj. at 5.8 Thus,
FCEs are not “indiscriminate,” but rather are carried out for a very specific purpose: extracting a
recalcitrant detainee from his cell for force-feedings that are deemed medically necessary. And
FCEs can only be considered “routine” because the petitioner was routinely uncooperative. In
fact, the Bureau of Prisons regulations that the petitioner cites, ostensibly to support his position,
are consistent with the Guantanamo Bay SOP he cites for his claim that FCEs are
“indiscriminate.” Compare 28 C.F.R. § 552.22(a), (c), with Dhiab, No. 05 Civ. 1457, ECF No.
350, Ex. 19A (JDG Procedure #38, May 15, 2014, §§ 38-6(i)(3)(a)—(b), 38-7(b)). Both
effectively maintain that staff should “first attempt to gain the inmate’s voluntary cooperation
before using force,” and that a noncompliant detainee “will be secured in his cell using the
by the Senior Medical Officer. . . Dhiab, 2014 WL 5795483, at *8-9; e g , Opp’n Ex. 2 at 2 11 C, 5 11 Lans. Ch.
8 By stating that “[h]e now attempts to walk to the force—feedings,” Mot. Prelim. lnj. 5, Rabbani clearly implies that
he had previously refused to walk voluntarily to his force-feedings. And while the fact that Rabbani now walks to
the force-feedings may render his FCE claim moot, the Court will resolve the issue under the assumption that
Rabbani still occaSionally experiences FCEs for his force-feedings
l3
minimum amount of force necessary.” 28 C.F.R. § 552.22(a), (c) (further noting that
“[s]ituations when an appropriate amount of force may be warranted include, but are not limited
to: . . . (2) Enforcement ofinstitutional regulations”); JDG Procedure #38, § 38-7(b).9
Accordingly, the Court is unconvinced that Guantanamo Bay guards exceed their
authority by forcibly extracting a detainee who is deemed by medical staff to require enteral
feeding and refuses to leave his cell on his own accord. The Court concludes that FCEs fall
squarely within the discretionary decisionmaking that case law grants Guantanamo Bay staff
under either Estelle or Turner. That Rabbani experienced pain when, upon refusing to walk
voluntarily to the force-feeding location, Guantanamo Bay guards “truss[ed] him . . . under full
restraint" and “carr[ied] his immobilized body away for force-feeding” is inadequate evidence to
demonstrate deliberate indifference by the guards. A highly physical encounter10 between
guards and a noncompliant or combative detainee, as required by Guantanamo Bay standard
operating procedure, does not illustrate an “unnecessary and wanton infliction of pain.” See
Estelle, 429 US. at 104. After all, it was Rabbani’s defiance that necessitated the physical
nature of his extraction.
Regarding the applicability of Turner to the PCB claim, Rabbani does not put forth a
specific constitutional right—other than insinuating an Eighth Amendment violation-that FCEs
allegedly contravene. However, even if FCEs impinge a specific constitutional right, they are
9 Moreover, there is nothing indiscriminate about the Guantanamo Bay procedure outlined in JDG Procedure #38. A
Guantanamo Bay guard “inform[s] the detainee that he must be enterally fed and must leave the cell for that
purpose.” JDG Procedure #38, § 38-6(i)(3)(a). lfthe detainee refuses twice, the guard notifies the Joint Operations
Center. Id Only after receiving approval from the Commander ofthe Joint Task Force may the guards employ an
FCE team to forcibly remove the detainee from his cell and bring him to the force-feeding location. Id. at § 38-
6(i)(3)(b). Such a procedure, which includes at least two opportunities for a detainee to act voluntarily and requires
clearance from a supervisor before force is used, strikes the Court as amply reasonable.
'0 Rabbani describes the encounter as follows: “The soldiers rush the detainee’s cell, force him onto the concrete
floor, shackle his hands painfully behind his back, shackle his legs, and then carry his body to where he will be
force-fed.” Mot. Prelim. lnj. 5.
l4
reasonably related to legitimate penological interests, such as prison security, Hatim, 760 F.3d at
59, and preserving the lives of detainees, Aamer, 742 F.3d at 104041. Rabbani’s emphasis on
the fact that Guantanamo Bay guards do not actively pursue alternative means of extraction
misinterprets the requirements under Turner. See Notification 7. There is no constitutional
obligation for Guantanamo Bay protocols to “mandate the consideration of ‘ready alternatives’”
to FCEs for controlling uncooperative detainees. See id. “[Turner] is not a ‘least restrictive
alternative’ test: prison officials do not have to set up and then shoot down every conceivable
alternative method of accommodating [Rabbani]’s constitutional complaint.” Turner, 482 US.
at 90-91 (citing Block v. Rutherford, 468 US. 576, 587 (1984)); cf Overton, 539 US. at I32
(“The burden . . . is not on the [government] to prove the validity of prison regulations but on the
prisoner to disprove it"). While “the existence of obvious, easy alternatives may be evidence
that the regulation is not reasonable,” there are no such obvious, easy alternative means for
transporting a noncompliant detainee to the force-feeding location that are readily apparent to the
Court. 1d. at 90. Furthermore, even if ready alternatives to FCEs existed, such a finding would
surely not offset the three other Turner factors, all of which weigh against Rabbani.” Thus,
Rabbani’s FCE claim is unlikely to succeed on the merits, and must be denied at the preliminary
injunction stage.
C. Rabbani’s Status Report Filed December 16, 2014
In a status report filed on December 16, 2014, Rabbani notes a “serious downturn in the
state of his health.” Status Report 2, ECF No. 346. Rabbani then seeks to link his ailments to
the prior use of olive oil as a lubricant on force-feeding tubes—a practice that persisted until the
H There is a valid, rational connection between FCEs for uncooperative detainees and the legitimate government
interests in prison safety and preserving the detainees’ lives; as an alternative means of avoiding FCEs, Rabbani
could walk voluntarily to the force-feeding location; and accommodating Rabbani’s request to enjoin such forcible
removals from his cell, Mot. Prelim. lnj. 4l, would undoubtedly burden Guantanamo Bay guards’ ability to
“preserv[e] institutional order,” See Turner, 482 US. at 90-9].
15
summer of 2014. Id. at 2. According to Dr. Steven Miles, who submitted a declaration as part of
Dhiab’s motion for a preliminary injunction, such a use of olive oil can potentially “cause a
condition called lipoid pneumonia.” Mot. Disc. Ex. A fl 10, th’ab, June 20, 2014,
ECF No. 265—1. Rabbani asserts that the government rejected his request that the medical staff
at Guantanamo Bay test him for lipoid pneumonia. Id. at 3-4. Rabbani argues that the
government’s refusal “presents an additional issue for this Court’s decision: whether that refusal
meets the ‘deliberate indifference’ standard of proof set forth in Estelle . . . .” Id. at 4. The
status report is fashioned as an addendum to the petitioner’s previously filed motion for a
preliminary injunction, and not as a new motion. As such, the Court need not consider this
question until Rabbani includes it in a separate motion or moves to amend his original motion for
a preliminary injunction. However, for the sake of completeness, the Court finds that the
government’s “refusal” to test Rabbani for lipoid pneumonia does not constitute deliberate
indifference.
Petitioner’s status report merely presents an example of different medical opinions, not
deliberate indifference on the part ofthe government. The government avers that “(1) a standard
chest x-ray taken of Petitioner in August 2014 for routine tuberculosis screening had shown no
signs of pneumonia or other lung infection, and (2) Petitioner had not reported any respiratory
complaints for the past several months.” Status Report at 3. The fact that Rabbani can point to a
medical journal article stating that “(1) more than half of persons with lipoid pneumonia are
asymptomatic, (2) chest x-rays have a relatively low rate of diagnostic accuracy for lipoid
pneumonia, and (3) there are much more accurate tests for diagnosing lipoid pneumonia,” id. at
4, does not transform the government’s medical decision not to test Rabbani into deliberate
indifference. There is no evidence, explicit or implicit, from the communications between
16
Rabbani’s counsel and the government, id, Ex. C, that the Guantanamo Bay medical staff
“possesse[s] a . . . culpable state of mind” sufficient for the Court to find that their decision not to
perform further testing on the asymptomatic petitioner equates to cruel and unusual punishment.
Wilson v. Seller, 501 vs. 294, 297 (1991).12
Additionally, the link Rabbani attempts to draw between the government’s prior use of
olive oil to lubricate force~feeding tubes—«which creates the basis for his argument of deliberate
indifference as to lipoid pneumonia testing—and his medical condition is, at best, speculative.
Rabbani seeks to blame the government’s use of olive oil during the force-feeding process for his
current medical problems, and, thus, create the sense that a pattern of government neglect, or
worse, exists. While substantive evidence that the government has engaged in a pattern of
“reckless” medical practices may provide additional support for a claim that the government’s
refusal to test for lipoid pneumonia reflects deliberate indifference, Rabbani can demonstrate no
such pattern here. Indeed, there appear to be multiple alternative explanations for the petitioner’s
worrisome condition: namely, Rabbani’s nearly two-year-long hunger strike, or, perhaps even
his voluntary consumption of olive oil “separate from the enteral feeding” process, Opp’n Ex. 7
1] 10. Therefore, without credible evidence of prior government deliberate indifference as to his
medical issues, Rabbani’s already tenuous claim that the government’s rejection of his request
for testing meets the Estelle standard rests on even shakier grounds, and is insufficient to satisfy
the petitioner’s lofty burden for a showing of deliberate indifference. See Estelle, 429 US. at
l05—06 (a finding of deliberate indifference must be consistent with a finding of “an unnecessary
and wanton infliction of pain”).
'2 The Court also notes that the petitioner provides no evidence that the Guantanamo Bay facility even possesses the
resources to conduct the purportedly “more accurate tests for diagnosing lipoid pneumonia (e.g., high resolution
computed tomography or bronchoscopy with bronchoaveolar lavage)." See id
17
Thus, for the foregoing reasons, the Court DENIES the petitioner’s motion for a
preliminary injunction.
A separate Order consistent with this Memorandum Opinion shall issue this date.
’Z/gj 03¢ C-
Date ROYCE C. LAMBERTH
United States District Judge
18
Estelle Court “ruled that in assessing whether the government has met its obligation to provide
medical care for those whom it incarcerates, ‘a prisoner must allege acts or omissions
sufficiently harmful to evidence deliberate indifference to serious medical needs.”’ Dhiab, 2014
WL 5795483, at *4 (quoting Estelle, 429 US. at 105).
Following Judge Kessler’s denial of Dhiab’s petition for a preliminary injunction, this
Court ordered the parties to notify the Court of“what, if any, claims remain to be decided in this
case that were not already addressed” by Judge Kessler in Dhiab. Order, Nov. 12, 2014, ECF
No. 340. Petitioner Rabbani responded that the Court (1) “must decide whether this case
implicates the Fifth Amendment due process right to refuse medical treatment,” and (2) must
determine whether FCEs are lawful. Pet’r’s Notification 1, Nov. 19, 2014, ECF No. 341. On the
Fifth Amendment question, Rabbani argues that Judge Kessler erred in using the Estelle
deliberate indifference standard, and instead should have employed the standard of proof
articulated in Turner v. Safley, 482 US. 78 (1987). In Turner, the Supreme Court held that
“when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it
is reasonably related to legitimate penological interests.” Id. at 89 (emphasis added). Rabbani,
therefore, largely seeks to relitigate the legal standard of proof at issue in Guantanamo Bay
force-feeding cases. According to Rabbani, then, the PCB question as well as a new question
regarding the government’s purported refusal to test Rabbani for lipoid pneumonia, which
Rabbani raises for the first time in a status report filed December 16, 2014, are the only
remainingfact-based inquiries not addressed by Judge Kessler in th'ab.2
2 The Court assumes that Rabbani’s decision not to cite any additional outstanding issues in this case means that the
constitutional question and the PCB question are the only issues left to be evaluated. See generally Notification.
II. LEGAL STANDARD
To satisfy the requirements of the traditional four-factor test for a preliminary injunction,
a plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor,
and that an injunction is in the public interest.” Winter v. Natural Res. Def Council, Inc, 555
US. 7, 20 (2008); see also Abdullah v. Obama, 753 F.3d 193, 197 n.4 (DC. Cir. 2014)
(clarifying that “the traditional four-factor preliminary injunction test, unsurprisingly, applies to
Guantanamo detainees”). Here, Rabbani fails demonstrate that he is likely to succeed on the
merits of his force-feeding, FCE, and lipoid pneumonia testing claims, rendering analysis of the
remaining three factors ofthe preliminary injunction test superfluous.
III. ANALYSIS
A. Force-Feeding
Rabbanie contends that the primary question before the Court is “whether this case
implicates the Fifth Amendment due process right to refuse medical treatment.” See Notification
1. However, the Court need not answer such a question, and, thus, need not definitively
determine whether Estelle’s deliberate indifference standard or T urner’s reasonably related
standard applies to Rabbani’s force-feeding claims because these claims fail, at the preliminary
injunction stage, under either Estelle or Turner.
1. Deliberate Indifference Standard
Estelle’s deliberate indifference standard governs a court’s review of the adequacy of
medical care received by prisoners under the Eighth Amendment’s prohibition against “cruel and
unusual punishments.” Estelle, 429 US. at 104; US. Const. amend. VIII. While Dhiab, like
Rabbani, positioned his motion for a preliminary injunction as a Fifth Amendment due process
claim, see Mot. Prelim. Inj. 20, Dhiab, No. 05 Civ. 1457 (D.D.C. Apr. 18, 2014), ECF N0. 203
(citing Cruzan v. Director, Missouri Department ofHealth, 497 U.S. 261, 278—79 (1990), for the
due process right to refuse unwanted medical treatment); Notification 1, Judge Kessler found that
Dhiab was actually challenging the “day to day procedures” involved in carrying out force-
feedings, rather than challenging a constitutional right to be free from force-feeding entirely,
Dhiab, 2014 WL 5795483, at *3, *5.
If deliberate indifference represents the appropriate standard of proof to apply to
Rabbani’s force-feeding-related claims, then this Court would adopt Judge Kessler’s
Memorandum Opinion in Dhiab, 2014 WL 5795483.3 Without deciding the issue, the Court
notes its belief that, for two reasons, it appears unlikely that Turner applies to Rabbani’s motion
for a preliminary injunction.
First, Turner applies when a prisoner’s constitutional right is at stake. 482 U.S. at 89.
Here, while a purported right to be free from force-feeding may possibly qualify under the rubric
of the constitutional right to refuse unwanted medical treatment, see Aamer v. Obama, 742 F.3d
1023, 1038-39 (DC. Cir. 2014), the Court agrees with its colleague, Judge Kessler, that
challenges to individual procedures that the government uses to force-feed hunger-striking
detainees——e.g., the use of nasogastric tubes, the method of auscultation, the use of Five Point
Restraint Chairs, etc—«would likely not rise to a constitutional claim. See Dhiab, 2014 WL
3 Rabbani argues that if Dhiab is released from custody at Guantanamo Bay, “such a turn of events would revive all
of the issues before Judge Kessler that are also presented here, for a decision by this Court in the first instance.”
Notification 8-9; Pet‘r’s Status Report 1, Dec. 16, 2014, ECF No. 346. On December 8, 2014, the government
provided notice that Dhiab was, in fact, released from U.S. custody and transferred to the control ofthe Government
of Uruguay. Notice of Transfer, Dhiab, No. 05 Civ. 1457, ECF No. 381. However, even if Dhiab’s release subjects
Judge Kessler‘s Memorandum Opinion to vacatur, the persuasiveness of Judge Kessler's factual findings and legal
reasoning remains intact. See Nat’l Black Police Ass’n v. D C, 108 F.3d 346, 354 (DC. Cir. 1997) (“[S]ince the
district court‘s opinion will remain ‘on the books’ even if vacated, albeit without any preclusive effect, future courts
will be able to consult its reasoning”); Coal. to End Permanent Cong. v. Runyon, 979 F.2d 219, 221 (DC. Cir.
I992) (Silberman, J., dissenting) (“even a vacated opinion, while no longer the law of the case, still may carry
‘persuasive authority’ (citing [.05 Angeles v Davis, 440 U.S. 625, 646 n. 10 (1979) (Powell, J., dissenting)).
5795483, at *5. Rabbani admits that he is not claiming a categorical right to refuse force-
feeding, Mot. Prelim. Inj. 2, 32 (The “[p]etitioner wishes to make clear that he is not seeking an
injunction to permit him to continue his hunger strike until death.”)), but instead is challenging
the process used to decide that force-feeding is appropriate as well as the methods used to
accomplish the force-feeding procedure. Consequently, the question for the Court is not whether
the government can force-feed Rabbani—it can———but rather whether the specific manner in
which it force-feeds Rabbani is lawful. The Court finds that an inquiry into the methods of
force-feeding is more closely related to Estelle’s application to how medical care is delivered
than to Turner’s application to whether a detainee can refuse medical treatment in the first
instance.4
Second, even ifthe government’s methods of force-feeding implicate a due process right
to refuse medical treatment, the Court of Appeals for the District of Columbia Circuit has
declared that “the due process clause does not apply to aliens without property or presence in the
sovereign territory of the United States.” Ktyemba v. Obama, 555 F.3d 1022, 1026 (DC. Cir.
2009) (collecting cases) (“Kiyemba l”) vacated and remanded, 559 US. 131 (2010), and
judgment reinstated and modified, 605 F.3d 1046 (DC. Cir. 2010). Given that Rabbani is a
nonresident alien, it would appear that existing Circuit precedent forecloses any remedy for an
alleged Fifth Amendment due process violation and, accordingly, rebuts Rabbani’s argument that
Turner, which only applies to constitutional claims, is the appropriate standard here.5 See Al
4 The Court notes that it is a closer call whether Rabbani‘s claim regarding government force-feeding in the absence
of imminent risk impinges his constitutional right to refuse medical treatment or, conversely, is more a question of
how the government implements medical treatment. However, as the Court explains below, even ifthis particular
claim requires a Turner analysis, Rabbani’s argument that the Guantanamo Bay protocols “authorize force-feeding
in situations well short of near-term death or great bodily injury,” Prelim. lnj. 30, fails to demonstrate a likelihood of
success on the merits.
5 Indeed, the Circuit expressed some skepticism that Turner applies to force—feeding challenges brought by
nonresident aliens on due process grounds. The Circuit was sure to present a “But cf” to Kiyemba 1 when, in
6
Bahlul, 767 F.3d at 33 (“[I]t remains the law of this circuit that, after Boumediene, aliens
detained at Guantanamo may not invoke the protections of the Due Process Clause of the Fifth
Amendment.” (citing Kiyemba 1)).
2. Reasonably Related Standard
Applying Turner to the present facts does not alter Judge Kessler’s conclusion that a
preliminary injunction is improper. Again, the Turner Court held that “when a prison regulation
impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to
legitimate penological interests.” 482 US. at 89. It is true that the Supreme Court has
established a “constitutionally protected liberty interest in refusing unwanted medical treatment,”
Cruzan, 497 US. at 278, and that the Circuit in Aamer left open the possibility that force-feeding
implicates such a liberty interest, 742 F.3d at 1038-39. It is also true that both parties implicitly
agree—and this Circuit has held—that the government has a legitimate interest in keeping
Guantanamo detainees alive. E.g., Notification 4; Resp’t‘s Resp. 3; see also Aamer, 742 F.3d at
1040-41 (recognizing “the government's legitimate penological interest[] . . . in preserving the
[detainee]’s life”). Therefore, the question here would be whether the force-feeding of Rabbani
is reasonably related to the government’s interest in preserving his life.
Aamer, it “assume[d] without deciding that the constitutional right to be free from unwanted medical treatment
extends to nonresident aliens detained at Guantanamo and that [it] should use the Turner framework to evaluate
petitioners’ claim." 742 F.3d at 1039 (DC. Cir. 2014).
Rabbani seeks to narrow the holding in Kiyemba I, claiming that it “did not address the extraterritorial reach of the
constitutional right to refuse medical treatment.” Notification 5-6. Yet such a reading seems only to be wishful
thinking on the part ofthe petitioner, since the Circuit placed no such limiting qualification on its assertion that the
due process clause does not apply to aliens like Rabbani. Indeed, the Circuit recently rejected Rabbani’s argument,
Notification at 6, that interpreting Kiyemba as a categorical bar on substantive due process claims would contravene
the Supreme Court‘s decision in Boumediene v. Bush, 553 US. 723 (2008). See Al Bahlul v. United States, 767 F.3d
1, 32-33 (DC. Cir. 2014) (“[The Supreme Court ‘explicitly confined its constitutional holding only to the
extraterritorial reach of the Suspension Clause’ and ‘disclaimed any intention to disturb existing law governing the
extraterritorial reach of any constitutional provisions, other than the Suspension Clause.‘ (quoting Rasu/ v Myers,
563 F.3d 527, 529 (DC. Cir. 2009)».
To determine the reasonableness of a regulation, the Supreme Court identified four
relevant factors: (1) whether there is “a valid, rational connection between the prison regulation
and the legitimate governmental interest put forward to justify it”; (2) “whether there are
alternative means of exercising the [asserted constitutional] right that remain open to prison
inmates”; (3) “the impact accommodation of the asserted constitutional right will have on guards
and other inmates, and on the allocation of prison resources generally”; and (4) whether there are
“ready alternatives” to the regulation. Turner, 482 US. at 89—91 (internal quotation marks and
citations omitted). While Rabbani seeks to emphasize the importance of the fourth factor, “ready
alternatives,” Notification l, 4, the Circuit has explained that the first factor, “a valid, rational
connection,” weighs heaviest on a court’s Turner analysis, Hatim v. Obama, 760 F.3d 54, 59
(DC. Cir. 2014) (“Although we examine each factor, the first is the most important”);
Kimberlin v. US. Dep't ofJustz‘ce, 318 F.3d 228, 233 (DC. Cir. 2003) (describing the first factor
as the “most important factor”); Amatel v. Reno, 156 F.3d 192, 196 (DC. Cir. 1998) (“Although
the [Turner] factors are intended as guides to a single reasonableness standard, the first factor
looms especially large. lts rationality inquiry tends to encompass the remaining factors, and
some of its criteria are apparently necessary conditions.” (internal citation omitted».
As a threshold matter, Turner is invoked when a court is examining a “regulation” as a
whole—Le. whether force—feeding, generally, impinges on a detainee’s constitutional right.
Turner, 482 US. at 89 (the purpose of the test is to “determin[e] the reasonableness of the
regulation at issue”); see also Aamer, 742 F.3d at 1041 (noting that a petitioner may, in a non-
preliminary injunction motion, attempt to show the district court that “there are ‘ready
alternatives” to force-feeding that the government might employ to achieve these same legitimate
interests”; not that there are ready alternatives to the specific methods used to force-feed
detainees). Protection of a constitutional right to refuse unwanted medical care does not
command the Court to evaluate each and every aspect ofthe force-feeding process under Turner.
Accordingly, Turner is not the appropriate test to determine how the government carries out a
given regulation. Cf. Estelle, 429 US. at 104-05 (the deliberate indifference standard applies to
the adequacy of medical treatment for prisoners). As mentioned above, while the act of force-
feeding may implicate the Fifth Amendment due process clause, the use of nasogastric tubes, the
method of auscultation, and the use of Five Point Restraint Chairs, among other specific methods
for performing a force-feeding, are not due process concerns, but rather—at most—represent
Eighth Amendment issues. 1d.
Thus, Turner is satisfied if the Court accepts that the right to be free from unwanted
medical care is not unconstitutionally infringed by Rabbani’s force—feeding. Indeed, at the
preliminary injunction stage, the Circuit already reached an analogous conclusion in Aamer. 742
F.3d at lO4l. And here, the petitioner presents the Court with no additional factual or legal
reasons—beyond those already presented and resolved in Aamer and Dhiab—to question, under
the elevated bar for granting a preliminary injunction, the methodology used by the medical staff
at Guantanamo Bay to determine that force-feeding is necessary to keep Rabbani alive.
Rabbani’s principal contention that, contrary to Circuit law, he has always been force-fed before
facing actual risk of death or great bodily injury, see Notification 4; Aamer, 472 F.3d at l04l, is
contradicted by the affidavit of Commander , the Senior Medical Officer of the
Guantanamo Bay Joint Medical Group (“JMG”). Opp’n Ex. 7 (Declaration of Commander
, M.D., May 7, 20l4). Commander details the reasons underlying the JMG’s
determination to force-feed Rabbani, I'd. W 4—7, and concludes that, “if enteral feeding was
discontinued, significant risks to [Rabbani’s] life and health could immediately result." Id. 11 15.
Commander declaration provides, at the very least, “a valid, rational connection
between" the decision to force-feed Rabbani and the “legitimate governmental interest” in
preserving Rabbani’s life. Turner. 482 US. at 89.6 it is important to recall that Turner’s first
factor is not intended to be a stringent bar for the government to meet. The government need
only show that “the logical connection between the regulation and the asserted goal is [not] so
remote as to render the policy arbitrary or irrational,” and that “the governmental objective [is] a
legitimate and neutral one.” Id. at 89-90. Thus, given the substantial weight accorded the “valid,
rational connection” factor, the Court finds that Rabbani cannot demonstrate “a substantial
likelihood of success on the merits.” Greater New Orleans Fair Hous. Action Ctr. v. US. Dep't
of Hous. & Urban Dev., 639 F.3d 1078, 1083 (DC. Cir. 2011) (“In ruling on a preliminary
injunction a key issue—often the dispositive one——is whether the movant has shown a
substantial likelihood of success on the merits”).
Such a conclusion is bolstered by the deferential standard traditionally applied to prison
operations—a standard this Court finds especially germane in the context of medical care given
6 Rabbani further argues that the Guantanamo Bay Standard Operating Procedures (“SOP”) for the medical
management of detainees on hunger strike, dated March 5, 2013, “authorize force-feeding in situations well short of
near‘term death or great bodily injury.” Mot. Prelim. Inj. 30 (citing Ex. D). The SOP was revised in December
2013. See Opp’n Ex. 2. The Court finds that the criteria for “involuntary enteral feeding” delineated in the
December 2013 SOP, which are substantially similar to those from the March 2013 SOP cited in Rabbani’s motion
for a preliminary injunction, fall well within the bounds of discretion, see infra, afforded to a prison‘s medical staff
when determining what constitutes imminent risk of death or great bodily injury. The Court understands the need to
evaluate hunger-striking detainees based on a more flexible set of medical factors, because “reliance on one factor
alone can be subject and does not provide the best data to determine whether enteral
feeding is necessary.” Opp’n Ex. 1 at 11 11 (Declaration of Commander M.D., Apr. 17, 2014). The
SOP’s multifactor list of suggested guidelines for determining if force-feeding is necessary focuses on dramatic
weight loss or end organ damage. See Opp‘n Ex. 2 at 2-3, 12. Such considerations strike the Court as wholly
consistent with the requirement that force-feeding may occur only when a detainee faces at least an actual risk of
great bodily harm. Undoubtedly, there is a “valid, rational connection” between such guidelines and the
government’s interest in keeping detainees alive. While Rabbani seeks to present hypothetical scenarios where a
completely healthy detainee could qualify for involuntary enteral feeding under the SOP guidelines, Mot. Prelim.
Inj. 31, Rabbani fails to demonstrate that he or any other Guantanamo Bay detainee, for that matter, has been force-
fed without first showing symptoms of great bodily harm. Cf Opp’n Ex. 7 at 11114-7 (Commander details the
deterioration of Rabbani’s medical condition, due to his hunger strike, up to the point of his first involuntary enteral
feeding). Thus, Rabbani cannot show a likelihood of success on the merits with a claim that the SOP does not
satisfy the deferential Turner standard.
10