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,

(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)).

-2- 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.

-3- 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).

-4- 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.

-5- 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

-6- 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.,

(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,

(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

-7- v. Natural Res. Def. Counsel, U.S. ,

(2008); Munaf v. Geren, U.S. ,

(2008).

Preliminary injunctive relief, such as that which is requested

here, the Court emphasized, “is an ‘extraordinary and drastic

remedy.’” Munaf,

; see Winter,

.

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,

(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

-8- 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,

(citing to Ross-Simons of Warwick, Inc. v. Baccarat, Inc.,

(1st Cir. 1996) for proposition that “[l]ikelihood of

-9- 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”),

Oct. 17, 2006,

, amends

. 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.”

(internal citation and quotations omitted).

-10- fed and provided medical treatment. The relief they seek clearly

falls under § 2241(e)(2). See In re Guantanamo Bay Detainee

Litigation,

(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,

(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

(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

-11- language, refused to address “the reach of the writ with respect to

claims of unlawful conditions of treatment or confinement.”

. 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,

(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,

(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,

(D.D.C. 2008) (Urbina, J.) (rejecting under

Alaska Airlines argument that court could invalidate § 2241(e)(2)

-12- under Boumediene); In re Guantanamo Bay Detainee Litigation,

(Hogan, J.) (noting “long-standing rule of

severability” applies); Khadr v. Bush, F.Supp.2d ,

(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 ,

(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

(“Therefore § 7 of the Military Commissions Act of 2006 (MCA),

(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

-13- 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,

, 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”),

Stat. 2739,

which gave the Court of Appeals “exclusive” jurisdiction to review

administrative trials at Guantanamo Bay. Bismullah,

. 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.

-14- 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

-15- (§ 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,

.

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,

(1994). To determine whether an official acted with

such indifference, courts look to the official’s subjective

awareness of the risk.

(“[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,

, 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.”

.

-16- 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,

(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,

(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.,

(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,

(2d Cir.

-17- 1998) (“[force-feeding] order does not violate a hunger-striking

prisoner’s constitutional rights”); Fuentes v. Wagner,

(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).

-18- (“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,

(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)

-19- (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,

(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,

(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.

-20- 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,

(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.

-21- 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

-22- 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

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

-23- 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

-24-