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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Bennett's books are available in New York State independent bookstores: Lift Bridge Bookshop: www.liftbridgebooks.com [Brockport, NY]; Sundance Books: http://www.sundancebooks.com/main.html [Geneseo, NY]; Mood Makers Books: www.moodmakersbooks.com [City of Rochester, NY]; Dog Ears Bookstore and Literary Arts Center: www.enlightenthedog.org/ [Buffalo, NY]; Burlingham Books – ‘Your Local Chapter’: http://burlinghambooks.com/ [Perry, NY 14530]; The Bookworm: http://www.eabookworm.com/ [East Aurora, NY] • See also: World Pulse: Global Issues through the eyes of Women: http://www.worldpulse.com/ http://www.worldpulse.com/pulsewire http://www.facebook.com/#!/bennetts2ndstudy

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This man’s 21st century Cold War: continuous aggression, human suffering

Yemenis protest
U.S.drones,  meddling

WHAT WOULD YOU DO if another nation invaded your country?

Re-reporting, editing, brief comment by 

Carolyn Bennett

Yemen across the Gulf of Aden from Africa’s horn (Djibouti)

 Breaching national sovereignty, murdering civilians

U.S. drone launch

Yemenis tell Press TV today that the United States’ “deadly drones have hit everywhere in Yemen” and that all Yemenis are united in fact that this aggression violates their “basic rights.”

A

sking the rhetorical question: “who would accept foreign intervention in his own land,” the Yemeni tells Press TV that the people of Yemen “strongly reject U.S. intervention” in their land.

We regard the use of U.S. assassination drones as an intervention, which has killed innocent people.

This is a violation of our independence and beliefs.

The continued use of these drones will only fuel more anger.

Somalis attacked by
U.S. drones

News stories have regularly reported that the U.S. government ─ claiming to be targeting “terrorists” ─ has been sending assassination drones against several countries including Pakistan, Afghanistan, Yemen, and Somalia; and that these attacks have caused the deaths of large numbers of civilians.

Pakistanis protest
U.S. drones

However, in flagrant disregard of the United Nations’ sharp criticism of the U.S. terror drone attacks, its targeted killings, on ground of international law ─ and despite the slaughter of civilians, human displacement and interminable trauma, despite sovereign and domestic protests ─ the United States has persisted in this aggression and its Central Intelligence Agency is reportedly planning expansion of its covert drone attacks in Yemen.

Deepening U.S. aggression farther north: Syria

Reports today from Syria reveal the Obama Government’s Secretary State, Hillary Rodham Clinton, in the name of the United States, “has launched an aggressive campaign to re-establish a new Syrian opposition force.” The Secretary of Aggression has reportedly rejected “existing opposition leaders as ‘a bunch of out-of-touch exiles’ that should be replaced by a group representing active insurgents.”

During yesterday’s official visit to Croatia, the secretary is reported saying ─ 

‘We’ve made it clear that the SNC (Syrian National Council) can no longer be viewed as the visible leader of the opposition…. That opposition must include people from inside Syria and others who have a legitimate voice that needs to be heard.’

The secretary’s belligerent and crassly undiplomatic declaration makes clear the United States' breach of Syria’s sovereignty, “fueling the anti-Syria insurgency aimed at removing the pro-resistance government of President Bashar Al-Assad.”

I

t would be fair to say that this man’s government is loose on the world, and is undermining both U.S. domestic and international law.

WHAT WOULD YOU DO IF ANOTHER NATION INVADED YOUR COUNTRY?

Opposition from within UNSC

UN Security Council

At least one nation within the five-permanent member UN Security Council has consistently opposed the United States’ violent descent to Cold War aggression.

Speaking to the press after a Wednesday meeting in Paris with France’s foreign minister, Russian Federation Foreign Minister Sergei Lavrov said what makes sense to any sane person:

Assad’s fate should be decided by the Syrian people.

Africa crossing Gulf of Aden, Red Sea
Syria
Middle East

Reported at Press TV, Lavrov sad, “If the position of our partners remains the departure of this leader whom they do not like, the bloodbath will continue …

“It is like daydreaming to speculate: to the effect that if the [Syrian] government is overthrown everything will fall into place.”

If this is somebody’s priority, he said, the “bloodshed will continue.”

Urging western states and Turkey to negotiate with the Syrian president, Foreign Minister Lavrov reiterated the fact that there is no military solution to the problem in and around Syria and encouraged pursuing a political solution to the Syrian conflict.

Cold War moves, counter moves

Loose on the world
Africa to Russian Federation

The U.S. military reportedly “has clandestinely transformed a remote former French military outpost in Djibouti named Camp Lemonnier into ‘the busiest Predator drone base outside the Afghan war zone.’  Nearly 3,200 U.S. soldiers, civilians and contractors are currently assigned to the military camp ─

‘[w]here they train foreign militaries, gather intelligence and dole out humanitarian aid across East Africa as part of a campaign to prevent extremists from taking root.’

Lemonnier is said to have “emerged as a hub for conventional aircraft” that last year deployed “a squadron of F-15E Strike Eagle fighter jets” ─ planes that “fly faster and carry more munitions than Predators.”

Russia again answers provocation.

Press TV reports, “Russia may deploy two reconnaissance aircraft to a French base in Djibouti where the United States is reportedly leading its secret drone war in the region.”

Soviet Cold War
 Ilyushin Il-38

Y

esterday, Russian Defense Minister Anatoly Serdyukov said his country has asked France to host two reconnaissance planes (Ilyushin Il-38), joining French planes at France’s air base in Djibouti (Horn of Africa across the Gulf of Aden from South Central Asia). The Russian plane, Ilyushin Il-38, can fly at a maximum speed of 650 km/h with service ceiling of 10,000 meters.

Wikipedia note: The Il-38, first flown in 1967, is an adaption of the four-engine turboprop Ilyushin Il-18 for use as a maritime patrol aircraft for the Soviet Navy and meets a requirement to counter American ballistic missile submarines. On December 7, 2010, two Russian Navy Il-38s appeared over the Japan Sea near the Noto peninsula, interrupting a combined U.S.-Japan Navy drill. The exercises were canceled because of concern that Il-38s might be carrying out surveillance missions on U.S./Japan naval activities.

Russia says the intended deployment of this plane is for anti-piracy purposes. The United States, among other countries, Press TV reports, conducts “anti-piracy operations in Djibouti, a close front against piracy in the region based in neighboring Somalia.”

Sources and notes

“Angry Yemeni civilians call on US to stop drone attacks,” November 1, 2012, http://www.presstv.ir/detail/2012/11/01/269919/us-drone-strikes-anger-yemeni-civilians/

“U.S. plans to establish new Syrian opposition force in Qatar meeting,” November 1, 2012, http://www.presstv.ir/detail/2012/11/01/269906/us-plans-new-syrian-opposition-force/

“West call for Assad departure daydreaming: Russia,” October 31, 2012, http://www.presstv.ir/detail/2012/10/31/269799/call-for-assad-ouster-daydreaming-russia/

Photo caption:

Russian foreign minister Sergei Lavrov (L) attends a news conference with his French counterpart Laurent Fabius at the French foreign ministry, Paris, Wednesday, Oct. 31 2012.

“Russia may deploy reconnaissance aircraft to French base in Djibouti,” October 31, 2012

http://www.presstv.ir/detail/2012/10/31/269809/russia-may-send-aircraft-to-djibouti-base/

Ilyushin Il-38

The Ilyushin Il-38 (NATO reporting name: May) is a maritime patrol aircraft and anti-submarine warfare aircraft designed in the Soviet Union.  The Il-38 was operated by units in the Soviet Northern, Pacific and Baltic fleets.

Role: anti-submarine warfare and Maritime patrol aircraft

Design group: Ilyushin

First flight: 1967

Primary users: Soviet Naval Aviation;  Russian Naval Aviation; Indian Navy

Number built: 58

Developed from: Ilyushin Il-18

http://en.wikipedia.org/wiki/Ilyushin_Il-38

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Bennett's books are available in New York State independent bookstores: Lift Bridge Bookshop: www.liftbridgebooks.com [Brockport, NY]; Sundance Books: http://www.sundancebooks.com/main.html [Geneseo, NY]; Mood Makers Books: www.moodmakersbooks.com [City of Rochester, NY]; Dog Ears Bookstore and Literary Arts Center: www.enlightenthedog.org/ [Buffalo, NY]; Burlingham Books – ‘Your Local Chapter’: http://burlinghambooks.com/ [Perry, NY 14530]; The Bookworm: http://www.eabookworm.com/ [East Aurora, NY] • See also: World Pulse: Global Issues through the eyes of Women: http://www.worldpulse.com/ http://www.worldpulse.com/pulsewire http://www.facebook.com/#!/bennetts2ndstudy
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