IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AHMED BELBACHA, NABIL HADJARAB, ABU WA'EL (JIHAD) DHIAB, SHAKER AAMER, Civ. Nos. 04-2215 (RMC), 05-1457 (GK), 05-1504 (RMC), & 05-2349 (RMC) Petitioners, v. BARACK H. OBAMA, et al., Respondents. PETITIONERS' REPLY TO RESPONDENTS' OPPOSITION TO PETITIONERS' APPLICATION FOR PRELIMINARY INJUNCTION AGAINST FORCE-FEEDING Petitioners Ahmed Belbacha, Nabil Hadjarab, Abu Wa'el (Jihad) Dhiab, and Shaker Aamer, by and through undersigned counsel, respectfully request permission to submit this reply to respondents' opposition to petitioners' application for a preliminary injunction against force-feeding. I. ARGUMENT AND CITATION OF AUTHORITY A. Respondents' Professed Desire For "Maintaining the Status Quo" is an Endorsement of Force-Feeding to Prolong Indefinite Detention. The detention facility at Guant?namo Bay has become a festering wound of human rights violations. Yet the Obama administration now states, in opposition to petitioners' motion to enjoin their force-feeding, that "the public interest lies with maintaining the status quo." Resp.'s Opp. at 19. 1 The status quo, of course, is that petitioners are being held indefinitely without any sort of trial or military commission proceeding, even though they were cleared for release years ago. That respondents now profess a desire to prolong this status quo via force-feeding is staggering, given President Obama's recent pronouncement that Guant?namo Bay "has become a symbol around the world for an America that flouts the rule of law." U.S. Dep't of Def., Obama Vows to Close Guant?namo Detention Facility, http://www.defense.gov/News/NewsArticle.aspx?ID=120130. America's religious leaders agree with the President. On June 25, 2013, Bishop Richard E. Pates, Chair of the Committee on International Justice and Peace for the United States Conference of Catholic Bishops, wrote to Secretary of Defense Chuck Hagel, saying: "The indefinite detention of [Guant?namo Bay] detainees is not only injurious to those individuals, it also wounds the moral reputation of our nation, compromises our commitment to the rule of law, and undermines our struggle against terrorism." Letter from Most Reverend Richard E. Pates, Bishop of Des Moines, to Honorable Chuck Hagel, Sec'y of Def. (June 25, 2013) at 1. Bishop Pates added: "Detainees retain basic human rights. The International Committee of the Red Cross has indicated its opposition to force-feeding. . . . Rather than resorting to such measures, our nation should first do everything it can to address the conditions of despair that have led to this protest." Id. at 2. Similarly, the Reverend Richard Killmer, executive director of the National Religious Campaign Against Torture, a multi-faith coalition of more than 320 religious organizations, said on June 26, 2013, that Guant?namo Bay " 'remains an open wound, 2 a symbol of the violation of our nation's deepest values.' " Dennis Sadowski, NATIONAL CATHOLIC REPORTER (June 29, 2013). Respondents insist that "[p]etitioners are not indefinitely detained," but "are detained pursuant to the AUMF, as informed by the laws of war." Resp.'s Opp. at 15, n. 4. This is Orwellian doublespeak. By any common-sense understanding, petitioners' detention--now at 11 years and counting, long after they have been cleared for release--has become indefinite. We submit that America's public interest lies not in force-feeding the petitioners to prolong their indefinite detention, but in either trial or release as "ready alternatives" to force-feeding. See Washington v. Harper, 494 U.S. 210, 223 (1990) (key consideration in considering the reasonableness of a prison regulation is whether there are any "ready alternatives" to the regulation). B. Force-Feeding to Prolong Indefinite Detention is Without Legal or Moral Precedent in America. Respondents defend petitioners' force-feeding as "humane, high-quality medical care to preserve their life and health." Resp.'s Opp. at 16. Respondents fail, however, to address the plethora of authorities cited by petitioners that condemn their forcefeeding as falling within the ambit of torture or cruel, inhuman, and degrading treatment or punishment. See Appl. for Prelim. Inj. at 15-19. The United Nations, the World Medical Association, the American Medical Association, the International Committee of the Red Cross, prominent bioethicists, and even the Chair of the United States Senate Select Committee on Intelligence, have weighed in--all of them against force-feeding. Id. Only respondents persist in defending it, to America's shame. 3 Respondents complain that petitioners' motion "cites no case" in which a court has enjoined force-feeding of "a hunger-striking detainee in government custody." Resp.'s Opp. at 13. But petitioners can cite no such case because their situation is unprecedented. At no time in American history has our government force-fed detainees in order to prolong their indefinite detention without legal process of any sort. Respondents cite three cases as purportedly approving indefinite detention without trial, see Resp.'s Opp. at 15, but none involved extra-legal detention of the sort to which petitioners have been subjected. Two of respondents' cases involved indefinite detention for civil contempt, which is circumscribed by the length of time the detainee insists on remaining in contempt. See In re Grand Jury Subpoena, 150 F.3d 170 (2d Cir. 1998); In re Sanchez, 577 F. Supp. 7 (S.D.N.Y. 1983). Respondents' third case involved detention under federal immigration laws and regulations, where the Attorney General is statutorily authorized to extend the detention of a person deemed unsuitable for release, and "review procedures promulgated by the [Immigration and Nationalization Service] ensure that [petitioner] will receive procedural due process" including periodic review, so that "it is unlikely that [petitioner's] detention will be arbitrary or indefinite." In re Soliman, 134 F. Supp. 2d 1238, 1246-47, 1251 (N.D. Ala. 2001), vacated as moot, 296 F.3d 1237 (11th Cir. 2002). Here, in contrast, petitioners have been cleared for release, and their detention is open ended, extending beyond the review procedures that resulted in their being cleared for release. Respondents also assert an analogy to federal regulations authorizing force-feeding of prison inmates (28 4 C.F.R. ?? 549.60-66 (2012)), see Resp.'s Opp. at 14, but the analogy is flawed because federal prison inmates are not subject to extra-legal indefinite detention. Respondents insist that petitioners' force-feeding is necessary to prevent them from "lay[ing] waste to their bodies." Resp.'s Opp. at 19. Petitioners' indefinite detention, however, is laying waste to their souls. C. Petitioners Challenge Their Force-Feeding as Prolonging Their Indefinite Detention, Not Merely as a Condition of Their Confinement. Respondents do not dispute petitioners' point that a deprivation affecting the duration of their confinement is not a "condition of confinement" over which this Court lacks jurisdiction. See Appl. for Prelim. Inj. at 24-26. Instead, respondents argue that petitioners' motion does not pertain to the duration of their confinement but instead has been filed merely "because they consider enteral feeding to be painful and degrading." Resp.'s Opp. at 10. On this point, respondents are mistaken. Petitioners do indeed contend that their force-feeding is painful, inhumane, degrading, and a violation of medical ethics. See Applic. for Prelim. Inj. at 15-18. But petitioners also argue, more fundamentally, that this Court should enjoin their force-feeding because it prolongs their indefinite detention, which is itself a human rights violation. This fundamental argument pertains to the duration of detention, not its conditions, and thus is within the scope of this Court's jurisdiction. D. The Injunction Petitioners Seek is Within the Scope of Habeas Relief. Petitioners contend "the relief sought here does not implicate the right to habeas corpus." Resp.'s Opp. at 11. They rely on Preiser v. Rodriguez, 411 U.S. 475, 484 5 (1973), which described the writ's "traditional function" as being "to secure release from illegal custody." Preiser further explained, however, that beyond the writ's traditional function, habeas corpus has evolved as a remedy for attacking the duration of any unlawful confinement, even if the relief sought would not result in immediate release but would only shorten the length of confinement. Preiser, 411 U.S. at 485-488. "[T]he federal habeas corpus statute 'does not deny the federal courts power to fashion appropriate relief other than immediate release.' " Id. at 487 (quoting Peyton v. Rowe, 391 U.S. 54, 66-67 (1968)). Thus, for example, in Preiser, where prisoners sought restoration of good-time credits, "even if restoration of respondents' good-time credits had merely shortened the length of their confinement, rather than required immediate discharge from that confinement, their suits would still have been within the core of habeas corpus in attacking the very duration of their physical confinement itself." Id. at 48788. Likewise here, petitioners are attacking the duration of their confinement by challenging their force-feeding to prolong it indefinitely, and in seeking an injunction against such force-feeding they invoke this Court's " 'power to fashion appropriate relief other than immediate release.' " Preiser, 411 U.S. at 487. That might not be traditional habeas relief, but it is within the Court's power to grant.1 Respondents insist in a footnote that petitioners have had ample opportunity to challenge the lawfulness of their detention. See Resp.'s Oppo. at 8, n. 2. In fact, habeas review in Guant?namo detainee litigation has proved to be ineffective due to the D.C. Circuit's approach to these cases. The last detainee to obtain a release order (continued...) 1 6 E. Respondents Should Agree to a Consent Decree Prohibiting Nonconsensual Administration of Reglan and Force-Feeding During the Daylight Hours of Ramadan. Respondents assert that "Reglan has never been administered to the four Petitioners." Resp.'s Opp. at 2. One must wonder, of course, whether Reglan has been administered to any other Guantanamo Bay detainees, given that (1) respondents' force-feeding regulations authorize Reglan's use and say nothing about restricting it to 12 weeks, and (2) respondents plainly state that "involuntary . . . medication" will be "implemented when necessary to preserve the detainee's health and life." Resp.'s Opp., exh. 1 at 6. Perhaps tellingly, respondents do not disclaim any prolonged administration of Reglan to other detainees, saying only vaguely that Reglan is "very rarely used." Resp.'s Opp. at 5, 17. With regard to force-feeding during Ramadan, respondents offer an equivocal assurance that, "absent any unforeseen emergency or operational issues, Joint Task (...continued) was Adnan Latif, whom Judge Kennedy ordered to be set free on July 21, 2010. See Mem. Op., Abdah v. Obama, Civ. No. 04-1254 (HHK), 210 U.S. Dist. LEXIS 83596. On the government's appeal, the D.C. Circuit vacated the release order, stating in a majority opinion that "in Guant?namo habeas proceedings a rebuttable presumption of regularity applies to official government records . . . ." Latif v. Obama, 677 F.3d 1175, 1185 (D.C. Cir. 2012.) In other words, according to the majority, district judges must assume that written reports by government interrogators accurately summarize the substance of interrogations. In dissent, Judge Tatel observed that the majority had effectively eviscerated Guant?namo habeas review: "I fear that in practice [this presumption] 'comes perilously close to suggesting that whatever the government says must be treated as true,' [citation]. In that world, it is hard to see what is left of the Supreme Court's command in Boumediene that habeas review be 'meaningful.' [Citation]." Id. at 1215. The Latif decision sounded a death knell for habeas--and for Mr. Latif. On September 8, 2012, he was found dead in his cell at Guant?namo, apparently having killed himself. 7 Force-Guant?namo ('JTF-GTMO') plans" to force-feed detainees only before dawn and after sunset. Resp.'s Opp. at 1-2 (emphasis added). Respondents are silent, however, as to how they might implement nighttime-only force-feeding. See id. at 17-18. Given the number currently being force-fed, which respondents now say is 45 detainees, see id. at 2, nighttime-only force-feeding seems problematic at best and possibly even dangerous to the detainees' health. According to respondents' regulations, the force-feedings "are usually done two times a day" and are "[t]ypically" completed "over 20 to 30 minutes," and the detainee is then placed in a " 'dry cell' " without access to water "for 45-60 minutes"--unless he vomits or attempts to vomit, in which case he can remain in the restraint chair for up to two hours. Joint Task Force Guant?namo Bay, Cuba, Joint Medical Group, Medical Management of Detainees on Hunger Strike at 18 (March 5, 2013.) On July 9, 2013-- the first full day of Ramadan this year--sunrise at Guant?namo Bay is at 6:28 a.m. and sunset is at 7:44 p.m. See Climatology: Sunrise/Sunset for Guant?namo Bay NAS, Cuba, http://in.weather.com/climate/sunRiseSunSet-Guantanamo-Bay-NASCUXX0016. That leaves just 10 hours and 44 minutes for respondents to implement two force-feedings of 45 detainees for up to an hour of feeding time and four hours of total observation time per detainee, which could require dozens of restraint chairs and hundreds of staff. If this can even be achieved, Guant?namo Bay will become a veritable forcefeeding factory. And the fasting detainees, who may not take water during the daylight hours of Ramadan, will be spending up to four more nighttime hours without 8 access to water as well as being under physical restraint, putting them at substantial risk of dehydration and sleep deprivation. These are precisely the sort of "operational issues," Resp.'s Opp. at 3, that respondents admit may thwart their "plans," id., to force-feed detainees only at nighttime during Ramadan. We do not doubt respondents' sincerity in professing a desire not to infringe petitioners' free exercise of religion by force-feeding them during daylight hours, but we submit that something more binding than respondents' equivocal promise is necessary. This need is underscored by a Pentagon spokesman's statement on July 3, 2013 that nighttime force-feeding during Ramadan " 'is an accommodation, not a right.' " Natalia Perez & Chris Lawrence, U.S. rejects call to stop force-feedings at Guantanamo for Ramadan, CNN INT'L (July 3, 2013) (emphasis added). We therefore propose that respondents agree to a consent decree, enforceable by this Court, which will have the legal effect of securing the detainees' rights to observe the Ramadan fast and to refuse the administration of Reglan. Absent a consent decree, petitioners' observation of the Ramadan fast will depend on the government's largess and its ability to overcome numerous and repeatedly-acknowledged "operational issues." Resp.'s Opp. at 2, 5, 17, exh. 1 at 6. We also note that respondents have rebuffed petitioners' assertion of the Religious Freedom Restoration Act (RFRA), see Appl. for Prelim. Inj. at 19-20, merely by citing Rasul v. Myers, 563 F.3d 527, 532 (D.C. Cir. 2009) for the proposition that "non-resident aliens are not protected 'persons' within the meaning of RFRA." Resp.'s 9 Opp. at 18. Respondents do not address petitioners' point that this issue has been revived by Citizens United v. FEC, 558 U.S. 310 (2010). See Appl. for Prelim. Inj. at 1920.) And it hardly advances international respect for American democracy when the Supreme Court treats corporations as "persons" but the President insists that the Guant?namo Bay detainees are not. II. CONCLUSION For the reasons discussed above, and for those set forth in petitioners' application for a preliminary injunction, this Court should enjoin petitioners' forcefeeding or, at a minimum, approve a consent decree against nonconsensual administration of Reglan and force-feeding during the daylight hours of Ramadan. Respectfully submitted, Jon B. Eisenberg 1970 Broadway, Suite 1200 Oakland, CA 94612 1 (510) 452-2581 jeisenberg@horvitzlevy.com Cori Crider Clive Stafford Smith Tara Murray REPRIEVE P.O. Box 72054 London EC3P 3BZ United Kingdom 10 011 44 207 553 8140 cori@reprieve.org.uk cstaffordsmith@googlemail.com tara.murray@reprieve.org.uk 11 CERTIFICATE OF SERVICE I hereby certify that on July 4, 2013 I filed and served the foregoing on ECF and by e-mailing a copy to andrew.warden@usdoj.gov. July 4, 2013 12