TATEL, Circuit Judge: Petitioners Ahmed Belbacha, Abu Dhiab, and Shaker Aamer are detainees who, although cleared for release, remain held at the United States Naval Station at Guantanamo Bay, Cuba. Protesting their continued confinement, they and other similarly situated detainees have engaged in a hunger strike, refusing to eat unless and until released. In response, the government instituted a forcefeeding protocol. Petitioners, each of whom had already sought release via a writ of habeas corpus, moved in those habeas actions for a preliminary injunction preventing the government from subjecting them to force-feeding. Two separate district judges denied their requests, each concluding that the Military Commissions Act (MCA) stripped federalcourts of jurisdiction to consider such challenges brought by Guantanamo detainees. For the reasons set forth in this opinion, we conclude that under the law of this circuit petitioners’ challenges to the conditions of their confinement properly sound in habeas corpus and thus are not barred by the MCA. We also conclude, however, that although their claims are not insubstantial, petitioners have failed to establish their entitlement to preliminary injunctive relief.
Senior Judge Stephen Williams filed a dissent. It begins:
WILLIAMS, Senior Circuit Judge, dissenting: As the majority aptly explains, Maj. Op. at 6-11, the current state of Congress’s back-and-forth with the courts over federal jurisdiction to consider claims by detainees at Guantanamo is this: claims that sound in habeas may be heard; all others may not. Today we decide which category embraces a challenge to a detainee’s conditions of confinement. The majority concludes that such a claim sounds in habeas. I disagree. Although we once toyed with that idea (in dictum), we have never held habeas to reach a prisoner’s conditions of confinement. And the majority provides no persuasive reason why we should reach that decision for the first time today. Congress has repeatedly and forcefully sought to withdraw the federal courts’ jurisdiction over Guantanamo detainees. I would not enlarge the writ to encompass a novel theory in the face of such clear congressional intent.