Appellants File Reply in Force-Feeding Case Aamer v. Obama

The first half of the filing argues that habeas jurisdiction has consistently addressed issues beyond fact or duration of detention---and cites use of the writ in 17th and 18th century England to free wives from abusive husbands and to decide child custody claims. The detainees yoke this historical argument to the claim that recent decisions by the Supreme Court and the D.C, Sixth, Eighth and Ninth Circuits "indicate there is a continuum for purposes of delineating the scope and limits of habeas jurisdiction."

To show that the present case falls along that continuum, on the "margins" of habeas, the appellants defend their initial reliance on the 1974 case Willis v. Ciccone. There the Eighth Circuit reasoned that habeas relief must be made available to federal prisoners with no other recourse in challenging those conditions of confinement that deprived them of substantial rights, for purposes of maintaining equity with state prisoners who could brings such challenges under § 1983. The appellants counter the government's declaration that Willis is no longer good law, and argue that Willis has merely been rendered moot in the particular context in which it was decided because federal prisoners have since been granted other means for bringing conditions-of-confinement challenges. The Willis decision "retains its vitality" for the Guantánamo detainees, who have been stripped of all non-habeas options by § 2241(e)(2) of the Military Commissions Act.

The detainees defend the three alternative arguments for habeas jurisdiction that they presented in their opening brief. Most notably, to argue that force-feeding involves a quantum change in level of custody, the appellants go well beyond the simple fact that force-feeding involves transferring detainees to isolation cells: "[F]or a prisoner to have his body subjected to nasogastric force-feeding while he is restrained in a specially-made chair is in itself a quantum change in his level of custody—in effect, a seizure of his internal organs through the forcible invasion of his gastro-intestinal tract."

Second, the detainees clarify that they are asserting not a right to "assistance in committing suicide," but rather the constitutionally protected right to refuse medical treatment. Third, the detainees reject the government's contention that they have waived their right to invoke the D.C. Circuit's ruling in Zivotofsky v. Secretary of State, which, as a "new legal authority" may be asserted for the first time on appeal, and which the detainees claim is relevant in that it supports the position that the federal courts have jurisdiction over detainee Aamer's international law claims, pursuant to a 1933 Provisional Agreement between the United States and Saudi Arabia.

The non-habeas half of the brief puts forth three separate arguments.

First, the Guantánamo force-feeding protocols are unreasonable because the government has ready alternatives, as illustrated by California's recent response to its own two-month, 100-inmate hunger strike. The detainees claim that the California response presents a viable model in that it

Second, the detainees accuse the government of misrepresenting authorities for its claim that force-feeding falls in line with international norms. For example, in Prosecutor v. Ŝeŝelj, the International Criminal Tribunal for the Former Yugoslavia did not unequivocally order force-feeding but approved it only “to the extent that [it is] not contrary to compelling internationally accepted standards of medical ethics or binding rules of international law.”

Third, on the question of whether the government deprived the detainees of their ability to perform communal tarawih prayers for Ramadan  in violation of the Religious Freedom Restoration Act (RFRA), the detainees reject the government's argument that the narrow definition of "persons" protected under the statute predates and therefore remains unaffected by the Supreme Court's decision in Citizens United. The brief points out that the decision relied on "ancient First Amendment principles" as espoused in many cases predating the RFRA for the proposition that First Amendment protections extend to corporations.

For a sense of how the arguments in the case have evolved, check out our previous summaries of the detainees' opening brief and the government's response. Oral arguments remain scheduled for October 18.