Last Wednesday the government filed its response brief in Aamer v. Obama, the force-feeding case on appeal in the D.C. Circuit. The appellants, three Guantánamo detainees, filed their appeal on Aug. 5, challenging the D.C. District Court's denial of their motions for a preliminary injunction prohibiting both their force-feeding and the deprivation of their ability to perform communal Ramadan prayers. See background on the case and our summary of the appellants' brief here.
Formally, the government frames its argument around two questions:
- Whether the district court correctly concluded that 28 U.S.C. § 2241(e)(2) withdraws the courts’ jurisdiction over petitioners’ challenge to their treatment and conditions of confinement.
- Whether the district court appropriately denied petitioners’ requested injunction because all four preliminary injunction factors weigh against providing the relief petitioners seek.
The brief breaks these issues down into four main parts.
The bulk of the brief is dedicated to rejecting the arguments and authorities cited by the detainees to demonstrate that the courts have jurisdiction over their claims---notwithstanding the jurisdiction-stripping provisions of the Military Commissions Act.
Specifically, the government refutes the detainees' various attempts to characterize their suit as a request for habeas relief. Rather, the brief insists, the district court correctly concluded that it lacked jurisdiction over the petitioners' claims under § 2241(e)(2), which bars non-habeas relief for detainee challenges to treatment and conditions of confinement.
The detainees had relied on the Eighth Circuit case Willis v. Ciccone for the proposition that habeas relief must be available to appellants who challenge those conditions of their confinement that deprive them of "substantial rights." But the government counters Willis is no longer good law, even in the Eighth Circuit. Applying Willis only to Guantanamo detainees, as suggested by appellants, would contravene Congress's intent in enacting § 2241(e)(2). The government says further, "Far from constituting an unlawful suspension of the writ, § 2241(e)(2) simply removes the courts’ jurisdiction over all claims that are not “proper claim[s] for habeas relief.”
According to the government, similarly unavailing is the detainees' attempt to cast their claims as a challenge to the "quantum change in the level of custody in which they are being held," subject to habeas review. The JTF-GTMO's decision to house hunger-striking detainees apart from other detainees is merely incidental to the decision that the appellants are in fact challenging---the court's refusal to issue an injunction on force-feeding and the deprivation of detainees' right to communal prayer.
The government also rejects the detainees' attempt to argue for jurisdiction on the grounds that involuntary feeding "constitutes a severe restraint on individual liberty." The government argues that not only is "the right asserted by petitioners to commit suicide by starvation . . . not a fundamental liberty interest," but the Supreme Court case Hensley v. Municipal Court, relied upon by the detainees, did not create a special category of habeas jurisdiction for any challenge involving a severe restraint on individual liberty.
Lastly, the government observes that the petitioners improperly rely on the recent D.C. Circuit decision in Zivotofsky v. Secretary of State for the proposition that a Provisional Agreement between the United States and Saudi Arabia allows appellant Shaker Aamer to invoke international law to challenge the conditions of his confinement. According to the government, that case addresses not the scope of the courts' jurisdiction but rather the President's exclusive power to recognize a foreign sovereign.
(Separately, the government also notes that the claims of one detainee, Nabil Hadjarab, are moot because he was transferred to Algeria.)
Success Not Likely on the Merits
The government begins its argument that the detainees cannot meet the requirements for an injunction by asserting that even if the courts had jurisdiction, the detainees have not established a likelihood of success on the merits.
First, the courts have repeatedly held that the government has a "legitimate interest in providing life-saving nutritional and medical care in order to preserve the life and prevent suicidal acts of individuals in its care and custody." Although the detainees attempt to distinguish their case on the grounds it involves indefinite detention, the government's "legitimate interests in preserving life, preventing suicide, and enforcing prison security and discipline are in no way dependent on the length or status of petitioners’ detention." The detainees' separate claim that involuntary feeding is painful, degrading and unethical is, according to the government, both "incorrect" and without bearing on the government's legitimate interest in keeping detainees alive. Nor is force-feeding out of step with international norms as articulated by the International Criminal Tribunal for the Former Yugoslavia and the European Court of Human Rights.
Second, the detainees' claim under the Religious Freedom Restoration Act (RFRA) is moot because "petitioners do not have a reasonable expectation that they will again be subject to the same treatment next Ramadan." The claim is moreover without merit because non-resident aliens are not "persons" protected under the RFRA.
No Irreparable Harm
Observing that the detainees "spend only a single sentence on the irreparable harm" that they claim they would suffer if forced to continue being force-fed, the government responds with a single paragraph refuting the claim. In a nutshell: the requested injunction would actually increase the risk of irreparable harm to the detainees.
Balance of Harms and the Public Interest
Finally, the government argues that the detainees will suffer harm if allowed to refuse food, and that the public interest lies in preserving the health and safety of persons in government care and custody.
Appellants may file a reply brief; we'll have a look at it when they do. Oral argument remains scheduled for Oct. 18 before Circuit Judges Tatel and Griffith and Senior Circuit Judge Williams.