Readers will recall Monday's order by District Court Judge Gladys Kessler dismissing, on jurisdictional grounds, one of four GTMO detainees' motions for an injunction to stop force feeding. Yesterday, detainee Abu Wa’el (Jihad) Dhiab, whose request Judge Kessler rejected, filed a motion for reconsideration in the District Court. Urging Judge Kessler to revisit her order, the filing suggests two alternative bases for jurisdiction in the District Court.
First, petitioner says that since federal courts are barred from jurisdiction over non-habeas actions in the Military Commissions Act §2241(e)(2), detainees must be permitted to use habeas corpus to challenge forced feeding because they are being deprived of substantial rights. Precluding all challenge to this particular condition of confinement in any court would be dire:
If the law were otherwise, Guantánamo Bay would fall between the cracks of American justice into a realm of lawlessness where the Executive Branch could abuse detainees with impunity, unchecked by the Judiciary. Once deemed lawfully detained, the petitioners could be beaten, tortured, humiliated, prevented from observing the tenets of their faith, and deprived of medical care, all at the unfettered discretion of a single person—the President of the United States. Guantánamo Bay could become Abu Ghraib, and the courts would be powerless to stop it.
President Obama himself might ask: “Is that who we are?” We submit the answer is no, and that habeas relief is available to petitioners to challenge conditions of confinement that deprive them of substantial rights, due to the absence of any other remedy.
Petitioners’ force-feeding is hardly a routine matter of prison management, for which habeas relief remains unavailable under the reasoning of Willis. Rather, petitioners’ force-feeding deprives them of substantial rights. As the Memorandum Opinion rightly observes, the force-feeding violates international law and medical ethics and “is a painful, humiliating, and degrading process.” Case No. 05-1457, Doc. 183 at 2-3. It also deprives petitioners of the right to refuse medical treatment—a right so substantial as to be protected by the Constitution’s guarantee of due process. See Cruzan v. Dir., Mo. Dept. of Health, 497 U.S. 261, 281 (1990).
The motion's second argument in favor of jurisdiction is that forced feeding is a "quantum change in the level of custody", and thus habeas corpus provides the proper remedy.
Read the motion in full here.