Detention: Law of

Oral Argument Preview: Aamer v. Obama

By Lauren Bateman
Thursday, October 17, 2013, 2:23 PM

Tomorrow at 9:30 a.m., D.C. Circuit Judges David S. Tatel and Thomas B. Griffith, and Senior Judge Stephen F. Williams will hear oral arguments in Aamer v. Obama, one of three consolidated appeals concerning the force-feeding of Guantanamo detainees.

A Guantanamo Joint Task Force protocol---the policy at the heart of the detainees' hunger strike and the appeal---says force-feeding will be considered if “[t]here is a prolonged period of hunger strike (more than 21 days)” or “[t]he detainee is at a weight less than 85% of the calculated Ideal Body Weight (IBW).” The government stresses that the protocol is followed only when needed to save the patient's life.  The detainees counter that the force-feeding procedure is painful, unlawful, and contrary to medical ethics.  They also claim that during Ramadan, force-fed detainees were separated from their peers, and thus deprived of a statutorily-guaranteed right to observe Ramadan through communal prayer.

Judge Rosemary M. Collyer denied the detainees' motion for a preliminary injunction motion on jurisdictional grounds.  She also concluded that, jurisdiction to one side, she would deny the detainees' request, as they could not demonstrate their legal entitlement to preliminary relief.  In a parallel case, another judge, Judge Gladys Kessler, likewise had denied an injunction motion for lack of jurisdiction.  But Kessler nevertheless gestured toward her view, calling force-feeding a "painful, humiliating, and degrading process which violates international law and medical ethics," and flagging the President's authority to halt the procedure.  Neither Collyer nor Kessler addressed the communal prayer dispute.

Broadly speaking, the parties' briefs address three questions, which likely will be debated at tomorrow's argument: first and foremost, whether Judge Collyer correctly denied jurisdiction; second, whether the detainees can prevail on their bid for a preliminary injunction against force-feeding; and third, whether the alleged deprivation of communal prayer, during Ramadan, violated the detainees' rights under the Religious Freedom and Restoration Act ("RFRA").   (Without prompting from either appellant or appellee, the court of appeals recently instructed both parties to come prepared to discuss a number of cases seemingly relevant to these issues.  The sua sponte order makes it likely that court and counsel will likely bat around the rulings.)  


Does a statute strip the court of jurisdiction?  The question revolves around competing interpretations of the Military Commissions Act of 2006---in particular, 28 U.S.C. § 2241(e)(2).  It says:  “[N]o court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the . . . treatment . . . or conditions of confinement” of detainees at Guantanamo Bay."

Seizing on the "other action" phrase, appellants---all habeas petitioners---characterize  § 2241(e)(2) as barring only non-habeas forms of relief.  Habeas review of claims such as these must be preserved, they say, the alternative being a total closing of the courthouse door to conditions of confinement suits, and thus, an unlawful suspension of the writ.  Appellants also note (e)(2)'s inoperative next door neighbor,  § 2241(e)(1): it purported to strip the courts of habeas jurisdiction, but was famously smacked down by the Supreme Court in Boumediene.  And yet (e)(1) nevertheless still informs the meaning of "other action" in § 2241(e)(2).  For if (e)(1) spoke of habeas, then "other action" surely didn't have habeas relief in mind.

The government says  § 2241(e)(2) ousts the court of jurisdiction, full stop; a contrary interpretation flouts Congress's intent to preclude suits touching on "treatment" or "conditions of confinement."  (Just have a look at the Al-Zahrani case, a Bivens action which approved of § 2241(e)(2) as an exercise of congressional power.)  In any event, argues the United States, habeas is an inappropriate mechanism for attacking such conditions.  We know this from, among other things, Miller v. Overholser, in which the court of appeals  "recognized that the courts will not interfere with discipline or treatment in a place of legal confinement, and so habeas corpus is not an available remedy.”  The detainees sharply dispute this latter claim.  The historical evidence, in their view, instead suggests that confinement conditions have been the subject of habeas review.  As recently as 1974, appellate courts have allowed, say, federal prisoners with no other recourse to challenge conditions of confinement that deprived them of substantial rights.  That's some outdated law, in the United States' view; according to the government, the 2006 statute supersedes any contrary rulings by lower courts.

Of course, even if § 2241(e)(2) doesn't bar jurisdiction, it falls on the detainees to establish some grounds for the court to hear the case.  And as for bases of habeas jurisdiction, appellants cite two.  The first has to do with the "quantum change" in their level of custody---that is, a shift from communal living to isolation cells, where hunger-striking detainees are housed.  Habeas courts have exercised jurisdiction in such situations, according to the detainees.  Secondly, the Supreme Court has recognized a liberty interest in avoiding unwanted medical treatment, such as force-feeding---an interest that can be vindicated on habeas review.

The United States rejoins that the "quantum change" argument is beside the point, as the detainees haven't asked to be moved from one place to another, but instead to have the district court enjoin the government from enforcing its force-feeding protocol.  This is a conditions of confinement case, not a "quantum" case.  Regarding the "liberty interest" argument, the government adds that force-feeding does not constitute the type of unwanted medical treatment that the Supreme Court has banned.  And at any rate, there is no liberty interest in assisted suicide, which is the ultimate goal of a hunger striker.


Assuming the court has jurisdiction, can the detainees demonstrate their entitlement to preliminary injunctive relief?   The answer turns on resolution of a legal test, which balances the interests, private and public, involved in the entry (or not) of an injunction against force-feeding.

Here, the appellants' position is two-fold: first, they say that JTF-GTMO's force-feeding protocol does not advance a legitimate penological interest, as it must in order to pass legal muster; moreover, there is no legitimate interest in violating the detainees' human rights (by force-feeding them) in order to prolong another legal violation (their indefinite detention at Guantanamo).  It's a double-whammy, that ultimately shakes out in favor of the detainees' position.

The government responds with precedent. Courts have, according to its brief, consistently held that the government has a legitimate interest in involuntarily feeding hunger striking prisoners.  As for appellants' complaints about their indefinite detention, or the pain of force-feeding, such "assertions in no way undercut respondents’ legitimate interests in preserving petitioners’ lives, safeguarding the health of all detainees, and maintaining order and safety at Guantanamo Bay."  The government urges, then, that "the balance of harms and public interest point in favor of preserving the health and safety of persons held in government custody, for whose welfare the public has assumed responsibility."

Religious Freedom Restoration Act Claim

Finally, there's the question of whether the force feeding protocol---and isolation from other detainees---violated detainees'  freedom to perform communal tarawih prayers for Ramadan, in violation of the Religious Freedom Restoration Act ("RFRA").

As a threshold matter, the government says the claim is moot, in that there is no evidence that appellants would still be detained and precluded from communal prayer, come next year's Ramadan.  For the detainees, this isolate-then-stop-then-maybe-isolate-next-year move makes for a so-called wrong "capable of repetition, yet evading review"---the name given to an exception to ordinary mootness rules.   If applied here, the exception would permit the court of appeals to take up the statutory claim, despite Ramadan's passage.

Regarding the merits of that claim, the government again cites precedent: the D.C. Circuit has previously adjudicated this very issue and held that "as a matter of statutory interpretation, non-resident aliens do not fall within the category of “persons” protected by RFRA."  Naturally the detainees reject that construction, and invoke the extraordinary nature of a legal rule that forecloses the right to free exercise at GTMO:

We submit that it is in the Nation’s best interest to respect the religious beliefs of all persons it incarcerates—even, and perhaps especially, the Guantánamo Bay detainees. The right of religious free exercise is a core American value, and to deprive the Guantánamo Bay detainees of that right does great damage to America in the eyes of the world in general and the world’s Muslims in particular.