Detention: Law of: District Court Development

Read Out on Today's GTMO Hunger Strike Hearing

By Wells Bennett
Wednesday, May 21, 2014, 3:08 PM

Last week, U.S. District Judge Gladys Kessler entered a temporary restraining order in a habeas case filed by Guantanamo detainee Jihad Dhiab. Among other things, and most interestingly, her ruling temporarily forbade the government from engaging in “any Forcible Cell Extractions of Petitioner for purposes of enteral feeding and any enteral feeding of Petitioner until May 21, 2014,” when the parties would return to court for a status hearing (emphasis mine).

The command evidently had its roots in a discovery fight. Earlier on, Dhiab sought a preliminary injunction against force feeding; his request was briefed fully, and a hearing on the injunction set for today.  But in the meantime, Dhiab’s attorneys say they learned of new evidence---videotapes of cell extractions and force feeding sessions---bearing on Dhiab’s challenge.  (The government at that time also denied requests by Dhiab's attorneys for other information.)  Petitioners' counsel accordingly sought the evidence’s preservation, and limited discovery, on an emergency basis.  After reviewing a response from the government and a reply from Dhiab, Judge Collyer on Friday converted today’s hearing from one on preliminary relief to a status hearing on discovery issues raised by Dhiab---and also entered her temporary restraining order.

Which brings us to this morning, when the parties debated, and the court orally ruled upon, the government’s short-run discovery obligations.  Quite importantly, Judge Kessler overruled government objections and said she would require the United States to produce, among other things, 34 videotapes depicting instances in which Dhiab was forcibly taken from his cell and force fed.  

Intriguingly, court and counsel didn’t address (so far as I could tell) the TRO’s “no force feeding” instruction with respect to Dhiab.  Considering that Judge Kessler’s prior ruling limited the ban until today’s date of May 21, it seems the prohibition could dissolve as early as tomorrow. For her part, Judge Kessler gestured in this direction, by emphasizing both that her prior ruling was meant merely to preserve the status quo for so long as needed to handle the emergency motion, and that it did not embody a decision regarding preliminary relief.  (The motion for a preliminary injunction, like the larger habeas case, obviously aims to stop Dhiab’s force feeding; but the detainee’s emergency motion papers did not, strictly speaking, ask the court to take that step.)

In any event, the court today mentioned a written order, one that would perhaps be issued later today and spell out more regarding Kessler’s rulings from the bench.  Odds are good that this will clarify matters---and tell us more about the government's interim power to force feed Dhiab.