More Filings Re: Hunger-Striker’s Motion to Intervene in Aamer v. Obama

Three updates in Aamer v. Obama, the force-feeding case on appeal to the D.C. Circuit. On November 14, the government filed its opposition to Guantanamo detainee Imad Abdullah Hassan’s motion to intervene in the case. Hassan, a designated hunger-striker who is currently being tube-fed, filed his motion in response to the government’s October 24 letter notifying the court that none of the four petitioners were categorized as hunger-strikers any longer. As the government notes in its most recent filing, however, petitioner Jihad Dhiab is once again being force-fed.  With that in mind, Hassan's intervention is unnecessary for purposes of preventing the case from being declared moot. Moreover, the government argues, Hassan’s motion to intervene should be denied as untimely and because Hassan has chosen not to seek relief in his own pending habeas case. The government's filing is interesting in that it lays out the criteria that Joint Task Force-Guantanamo's (JTF-GTMO) Senior Medical Officer uses to determine whether a detainee should receive enteral feeding.  The idea here is plain enough: to push back against petitioners’ assertion that the government removed three of the petitioners’ designations as hunger strikers in an effort to evade judicial review.

The determination is based on various criteria, including the detainee’s intent and behavior and objective factors such as a detainee missing nine consecutive meals or weight loss to a level less than 85% of the detainee’s ideal body weight. Id. Once a detainee is designated as a hunger striker, the medical staff carefully monitors his health by means of physical and psychological examinations. Id. If JTF-GTMO medical staff determines that the detainee’s life or health could be threatened by his refusal to voluntarily consume adequate food or nutrients, the medical staff obtains authorization from the JTF-GTMO Commander to provide nutrients to the detainee enterally. Id. ¶ 11, App. 94. The decision to designate a detainee for enteral feeding does not mean that a detainee must receive all nutrition through a nasogastric tube. Prior to every feeding, the detainee is offered the opportunity to eat a meal or consume a liquid nutritional supplement orally, instead of being enterally fed. Id.

Last Wednesday, the detainees filed a brief response rebutting the government’s stated grounds for opposing Hassan’s motion to intervene.

We are concerned . . . that if the Court were to deny intervention, JTF-GTMO might once again remove Dhiab’s designation as a hunger striker and seek a mootness disposition. The Government also argues that this Court should deny intervention because Hassan can seek relief in the district court in his own pending habeas proceeding. See Respondents-Appellees’ Opposition to Motion to Intervene at 1, 5-6. But that would delay this Court’s adjudication for many more months if the pending appeals were dismissed as moot, as separate proceedings by Hassan wended their way through the district court and up to this Court. We respectfully request this Court to grant intervention so as to prevent gamesmanship or its appearance, avoid delay, and ensure that the important issues presented by this case are litigated expeditiously.

On Friday the court filed a per curiam order deferring consideration of Hassan’s motion for leave to intervene in the case pending further order. The case is before Judges Tatel and Griffith and Senior Judge Williams.