Court follows precedent while citing gov’t breach of law, ethics

Judge Kessler’s ruling in case of indefinite detainee suffering forced feeding and unlawful detainer, force-feeder

Excerpt, reformatting, end comment by Carolyn Bennett

July 8, 2013

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Petitioner, Civil Action No. 05-1457 (GK) BARACK OBAMA, et al., Respondents. :

MEMORANDUM ORDER

Petitioner, Jihad Dhiab, has filed an Application for Preliminary Injunction Against Force-Feeding [Dkt. No. 17 5]. Upon consideration of the Application, the Government's Opposition [Dkt. No. 178], Petitioner's Reply [Dkt. No. 181], and the applicable case law, the Court concludes that the Application shall be denied for the following reasons.

Tools of torture

Petitioner seeks in his Application to enjoin the Government from continuing to subject him to force-feeding of any kind, including forcible nasal gastric tube feeding, and from administering medications related to force-feeding without his consent.

Judge Kessler
AFP

In addition, he has requested expeditious consideration of the Application because of the imminent risk that the force-feeding during the day will deprive him of the Ramadan fast, which commences this year on July 8, 2013.1

P

etitioner has been detained at Guantanamo Bay for 11 years, despite having been cleared for release in 2009.

At no time during these 11 years has he had any hearing on the merits of his habeas petition, nor any military commission proceeding to determine the merits of his case.

Due to certain actions taken by Congress, Guantanamo Bay has not been closed, and Petitioner’s detention has, for all practical purposes, become indefinite.

On February 10, 2009, this Court issued Al-Adahi v. Obama, 596 F. Supp. 2d 111 (D.D.C. 2009).

In that case, Petitioner had filed a Renewed Emergency Motion to Enjoin the Force-Feeding to which he was being subjected.

For all practical purposes, the facts in Al-Adahi, which the Court found after a long Motion Hearing, are close to identical to the facts presented by Petitioner in this case.
 In Al-Adahi, the Court concluded that it ‘lacks jurisdiction and therefore does not have the authority to grant the relief’ being requested. I d. at 117.
 The Court made it perfectly clear in that Opinion that it was required to reach that conclusion ‘if it is to carry out its obligation to faithfully follow the rule of law.’ Id.

T

here has been no material no material change in either the background facts or the applicable legal principles since issuance of the Al-Adahi Opinion. 28 U.S.C. § 2241(e)(2) still states that:

[N]o court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or 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.

C

onsequently, the Court feels just as constrained now, as it felt in 2009, to deny this Petitioner's Application for lack of jurisdiction.

The Court also feels constrained, however, to note that Petitioner has set out in great detail in his papers what appears to be a consensus that force feeding of prisoners violates Article 7 of the International Covenant on Civil and Political Rights which prohibits torture or cruel, inhumane, and degrading treatment.

In addition, Petitioner cites in detail statements of the American Medical Association, the World Medical Association, the UN High Commissioner for Human Rights, the UN Rapporteur on Human Rights and Counter-Terrorism condemning the force-feeding of detainees.

The American Medical Association in a letter to the Secretary of Defense on April 25, 2013, has declared that the force-feeding of detainees violates ‘core ethical values of the medical profession.’ Charlie Savage, Obama Renews Efforts to Close Prison in Cuba, N.Y. Times, May 1, 2013, at A1.

D

espite the statements contained in the Declaration submitted by the Government in support of its Opposition to the Application claiming that ‘[t]he health care provided to the detainees being held at JTF-GTMO rivals that provided in any community in the United States and is comparable to that afforded to our active duty service members. Detainees receive timely, compassionate, quality healthcare and have regular access to primary care and specialist physicians,’ it is perfectly clear from the statements of detainees, as well as the statements from the organizations just cited, that force-feeding is a painful, humiliating, and degrading process.

E

ven though this Court is obligated to dismiss the Application for lack of jurisdiction, and therefore lacks any authority to rule on Petitioner’s request, there is an individual who does have the authority to address the issue. 

In a speech on May 23, 2013, President Barack Obama stated ‘Look at the current situation, where we are force-feeding detainees who are holding a hunger strike. . . Is that who we are? Is that something that our founders foresaw? Is that the America we want to leave to our children? Our sense of justice is stronger than that.’ Text of President Obama's May 23 Speech on National Security (Full Transcript), Wash. Post, May 23, 2013, available at 2013 WLNR 12700673.

Judge Kessler

Article II, Section 2 of the Constitution provides that ‘[t]he President shall be the Commander in Chief of the
Army and Navy of the United States ...’  It would seem to follow, therefore, that the President of the United States, as Commander-in-Chief, has the authority—and power-- to  directly address the issue of force-feeding of the detainees at Guantanamo Bay.

WHEREFORE, it is this 8th day of July, 2013, hereby

ORDERED, that Petitioner’s Application for a Preliminary Injunction is denied.

(;f~~ ·Gladys Kessler

United States District Judge

In this matter, the government, that is to say the leaders and public officials of this country seem to know they are breaking the law, violating domestic and international law and principles of ethics and human rights conventions; yet they are incapable of stopping themselves. 

Does anybody believe this? I doubt it. 

It is sad indeed that officials’ actions (all branches of government) in these matters of indefinite detention and force feeling ─
but also in a long line of ruthless acts together with their secrecy and mendacity ─ this government, collectively, has caused the people of the United States and peoples of the world to lose critical confidence in the integrity of the United States of America.  

Sources and notes

MEMORANDUM ORDER

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Petitioner, Civil Action No. 05-1457 (GK) BARACK OBAMA, et al., Respondents.

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv1457-183

Judge Gladys Kessler

Federal Judicial Service:

Judge, U.S. District Court for the District of Columbia

Nominated by William J. Clinton on March 22, 1994, to a seat vacated by Michael J. Boudin Confirmed by the Senate on June 15, 1994, and received commission on June 16, 1994

Assumed senior status on January 22, 2007

Professional Career: Appellate attorney, National Labor Relations Board, 1962-1964

Legislative assistant, U.S. Sen. Harrison A. Williams, New Jersey, 1964-1966

Legislative assistant, U.S. Rep. Jonathan Bingham, New York, 1966-1968

Special assistant, director of Office of Staff Relations, New York City Board of Education, 1968-1969

Private practice, Washington, D.C., 1969-1977

Associate judge, Superior Court of the District of Columbia, 1977-1994

Education: Cornell University (B.A., 1959); Harvard Law School (LL.B., 1962); Birth: 1938 in New York, NY http://www.uscourts.gov/JudgesAndJudgeships/BiographicalDirectoryOfJudges.aspx

Democracy Now July 9, 2013: “A federal judge has issued a ruling suggesting the force-feeding of hunger-striking Guantánamo Bay prisoners is illegal, but warning only President Obama can stop it. On Monday, U.S. District Judge Gladys Kessler rejected a prisoner’s effort to halt his force-feeding, saying she lacks jurisdiction. But Judge Kessler said: ‘It is perfectly clear ... that force-feeding is a painful, humiliating, and degrading process.’ Kessler added: ‘It would seem to follow [the president] has the authority — and power — to directly address the issue of force-feeding of detainees at Guantánamo Bay.’ At least 45 of the estimated 106 Guantánamo hunger strikers are being force-fed through tubes.” http://www.democracynow.org/2013/7/9/headlines#799

Also: “Judge: Guantánamo Force-Feeding ‘Painful, Humiliating, Degrading,’ in Obama’s Hands”

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