Detention: Law of: District Court Development

Petitioners' Reply Brief Filed in Force Feeding Dispute

By Wells Bennett
Friday, July 5, 2013, 1:19 PM

We blogged earlier in the week about a motion brought by four detainees at Guantanamo----Ahmed Belbacha, Nabil Hadjarab, Abu Wa'el (Jihad) Dhiab, and Shaker Aamer.  The quartet seeks a preliminary injunction against force feeding, and yesterday filed a reply brief.

From that brief:

The detention facility at Guantánamo Bay has become a festering wound of human rights violations. Yet the Obama administration now states, in opposition to petitioners’ motion to enjoin their force-feeding, that “the public interest lies with maintaining the status quo.” Resp.’s Opp. at 19.

The status quo, of course, is that petitioners are being held indefinitely without any sort of trial or military commission proceeding, even though they were cleared for release years ago. That respondents now profess a desire to prolong this status quo via force-feeding is staggering, given President Obama’s recent pronouncement that Guantánamo Bay “has become a symbol around the world for an America that flouts the rule of law.” U.S. Dep’t of Def., Obama Vows to Close Guantánamo Detention Facility, http://www.defense.gov/News/NewsArticle.aspx?ID=120130.

America’s religious leaders agree with the President. On June 25, 2013, Bishop Richard E. Pates, Chair of the Committee on International Justice and Peace for theUnited States Conference of Catholic Bishops, wrote to Secretary of Defense Chuck Hagel, saying: “The indefinite detention of [Guantánamo Bay] detainees is not only injurious to those individuals, it also wounds the moral reputation of our nation, compromises our commitment to the rule of law, and undermines our struggle against terrorism.” Letter from Most Reverend Richard E. Pates, Bishop of Des Moines, to Honorable Chuck Hagel, Sec’y of Def. (June 25, 2013) at 1. Bishop Pates added: “Detainees retain basic human rights. The International Committee of the Red Cross has indicated its opposition to force-feeding. . . . Rather than resorting to such measures, our nation should first do everything it can to address the conditions of despair that have led to this protest.” Id. at 2.

Similarly, the Reverend Richard Killmer, executive director of the National Religious Campaign Against Torture, a multi-faith coalition of more than 320 religious organizations, said on June 26, 2013, that Guantánamo Bay “ ‘remains an open wound, a symbol of the violation of our nation’s deepest values.’ ” Dennis Sadowski, NATIONAL CATHOLIC REPORTER (June 29, 2013).  Respondents insist that “[p]etitioners are not indefinitely detained,” but “are detained pursuant to the AUMF, as informed by the laws of war.” Resp.’s Opp. at 15, n. 4. This is Orwellian doublespeak. By any common-sense understanding, petitioners’ detention—now at 11 years and counting, long after they have been cleared for release—has become indefinite.

We submit that America’s public interest lies not in force-feeding the petitioners to prolong their indefinite detention, but in either trial or release as “ready alternatives” to force-feeding. See Washington v. Harper, 494 U.S. 210, 223 (1990) (key consideration in considering the reasonableness of a prison regulation is whether there are any “ready alternatives” to the regulation).