Guantanamo: Litigation: D.C. Circuit

Appellant Brief Filed in Aamer v. Obama

By Jane Chong
Tuesday, August 6, 2013, 11:00 AM

Three Guantanamo detainees filed their opening brief yesterday in Aamer v. Obama. Shaker Aamer, Nabil Hadjarab and Ahmed Belbacha are appealing the D.C. District Court’s denial of their motions for a preliminary injunction prohibiting appellees from force-feeding appellants and depriving them of their ability to perform communal prayers during Ramadan. Judge Rosemary Collyer denied the motions on July 16 for lack of subject-matter jurisdiction, on the heels of Judge Gladys Kessler’s decision to deny an application for injunction from a fourth detainee, Abu Wa’el Dhiab, on similar grounds. As Wells noted in a previous post, despite reaching the same holding, the two opinions struck two completely different chords on the merits. The appellants highlight the difference in their brief:

On the merits . . .  Judge Kessler commented that Dhiab’s detention “has, for all practical purposes become indefinite,” that “force-feeding is a painful, humiliating, and degrading process,” and that force-feeding of prisoners violates international law and medical ethics. App. 120-21.

. . . . On the merits, however, in contrast with Judge Kessler’s decision, Judge Collyer commented that “there is nothing so shocking or inhumane in the treatment of Petitioners [by force-feeding] . . . to raise a constitutional concern that might otherwise necessitate review.” App. 148.

The appellants offer three arguments on the question of jurisdiction under the Military Commissions Act and assert two merits claims.

In this brief, we explain three separate and independent reasons why jurisdiction is vested in the district court as well as in this Court: First, to the extent § 2241(e)(2) deprives the courts of jurisdiction to adjudicate actions by Guantánamo Bay detainees challenging conditions of their confinement that constitute a deprivation of substantial rights, the statute is invalid as an unlawful suspension of the writ of habeas corpus. Second, habeas relief is available to appellants to challenge their force-feeding to the extent it involves a quantum change in their level of custody from communal living to isolation cells. Third, habeas relief is available to appellants to challenge their force-feeding to the extent it constitutes a severe restraint on their individual liberty.

On the merits, we explain why Judge Kessler was right: the force- feeding of the Guantánamo Bay detainees is indeed a painful, humiliating, and degrading process which violates international law and medical ethics. We also demonstrate that deprivation of the detainees’ ability to perform communal prayers during Ramadan violates their rights of religious free exercise.

The government’s response is due September 4; the appellants’ reply brief is due September 11. As noted last week, oral argument is scheduled for October 18, before Circuit Judges Tatel and Griffith and Senior Circuit Judge Williams.