District Court on Force Feeding: No Jurisdiction to Stop It, Though the President Can
A pretty strong signal from Judge Gladys Kessler, who today rejected GTMO detainee Jihad Dhiab's motion for a preliminary injunction to stop force feeding.
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A pretty strong signal from Judge Gladys Kessler, who today rejected GTMO detainee Jihad Dhiab's motion for a preliminary injunction to stop force feeding. (His is but one of four such motions, all brought simultaneously and seeking identical relief; the three other detainees' motions are still pending before Judge Rosemary Collyer.)
In her order, Judge Kessler notes that the circumstances are no different than they were when the District Court refused to grant an injunction in Al-Adahi back in 2009 on jurisdictional grounds. Thus the court has no jurisdiction in this case, either, Judge Kessler says. She acknowledges, however, that Dhiab has laid out a strong case in support of the argument that force-feeding of prisoners violates Article 7 of the International Covenant on Civil and Political Rights.
At the same time, Judge Kessler doesn't find convincing the government's defense of the detainee healthcare system at GTMO as "timely [and] compassionate." Despite the government's claims, she writes:
[I]t 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.She concludes with a suggestion that the President has authority to intercede on behalf of Dhiab:
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.Here is the detainees' motion, the government's response brief, and the petitioners' reply brief.
Raffaela Wakeman is a Senior Director at In-Q-Tel. She started her career at the Brookings Institution, where she spent five years conducting research on national security, election reform, and Congress. During this time she was also the Associate Editor of Lawfare. From there, Raffaela practiced law at the U.S. Department of Defense for four years, advising her clients on privacy and surveillance law, cybersecurity, and foreign liaison relationships. She departed DoD in 2019 to join the Majority Staff of the House Permanent Select Committee on Intelligence, where she oversaw the Intelligence Community’s science and technology portfolios, cybersecurity, and surveillance activities. She left HPSCI in May 2021 to join IQT.
Raffaela received her BS and MS in Political Science from the Massachusetts Institute of Technology in 2009 and her law degree from Georgetown University Law Center in 2015, where she was recognized for her commitment to public service with the Joyce Chiang Memorial Award. While at the Department of Defense, she was the inaugural recipient of the Office of the Director of National Intelligence’s General Counsel Award for exhibiting the highest standards of leadership, professional conduct, and integrity.
Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.
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