Case: Dhiab v. Obama

1:05-cv-01457 | U.S. District Court for the District of Columbia

Filed Date: July 22, 2005

Closed Date: 2017

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Case Summary

On July 22, 2005, a detainee at Guantánamo Bay Naval Station, by his next friend, filed this petition for writ of habeas corpus in the U.S. District Court for the District of Columbia. Represented by attorneys from a civil rights firm and the Center for Constitutional Rights, the plaintiff also brought suit under the Alien Tort Claims Act, 28 U.S.C. § 1350; the All Writs Act, 28 U.S.C. § 1651; and the Declaratory Judgment Act, 28 U.S.C. § 2201.The petitioner alleged violations of the Due Proces…

The petitioner alleged violations of the Due Process clause of the Fifth Amendment; the Third and Fourth Geneva Conventions, the Alien Tort Statute, 28 U.S.C. § 1350; Article II of the U.S. Constitution; the Administrative Procedures Act, 5 U.S.C. § 706(2); and customary international humanitarian and human rights law. Specifically, the petitioner claimed he was subjected to severe physical and psychological abuse while in custody, including beatings, threats of rendition to countries which practice torture, sexual humiliation, exposure to extreme temperatures, deprivation of medical care, and solitary confinement. The petitioner requested that the court grant a writ of habeas corpus, as well as declaratory and injunctive relief.

However, Guantánamo Bay detainees are not permitted to meet with an attorney without a court-issued protective order and the petitioner's original counsel failed to move for entry of such an order. A new attorney from the Equal Justice Initiative appeared on behalf of the petitioner on December 17, 2007 and moved for a protective order to allow the petitioner to meet with his attorney. U.S. District Judge Gladys Kessler granted the motion on April 14, 2008. On January 28, 2009, the petitioner filed an unopposed motion to stay this action because he was still unable to meet with counsel in a meaningful way. The petitioner requested that the action be stayed until he was able to meet with his counsel. Judge Kessler granted the motion.

On June 30, 2013, the petitioner, along with three other similar detainees, filed an application for a preliminary injunction with the District Court to prevent the government from force-feeding them. These petitioners undertook a hunger strike in protest of their prolonged detentions at Guantánamo Bay. In response, the government began force-feeding them by using nasogastric tube feeding (whereby a tube is passed through the nose to the stomach) in order to provide enough sustenance to continue the petitioners' detentions. The petitioners also requested an expeditious hearing because this force-feeding would deprive the petitioners of the ability to participate in the upcoming Ramadan fast.

On July 8, 2013, Judge Kessler denied the application. 952 F. Supp. 2d 154 (D.D.C. 2013). Judge Kessler noted that it was "perfectly clear . . . that force-feeding is a painful, humiliating, and degrading process." However, she held that the District Court lacked jurisdiction to grant the relief requested, based on a prior decision by the District Court, Al-Adahi v. Obama, 596 F. Supp. 2d 111 (D.D.C. 2009). The petitioners filed a motion for reconsideration on July 11, arguing that Al-Adahi was incorrectly decided, based on legal authorities not previously presented. However, Judge Kessler denied the petitioners' motion for reconsideration on August 29, and the petitioners appealed to the U.S. Court of Appeals for the D.C. Circuit on September 3.

The D.C. Circuit affirmed Judge Kessler's decision on on February 11, 2014. Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014). The D.C. Circuit held that while federal courts did have habeas jurisdiction to hear challenges to the conditions of confinement at Guantánamo Bay, the petitioners had not made a sufficient showing of a likelihood of success on the merits for preliminary relief because force-feeding served a "legitimate penological interest." However, the D.C. Circuit left open the possibility that the District Court could allow "petitioners a 'meaningful opportunity' to make" an adequate showing.

Based on this holding, the petitioner, as an individual, again moved for a preliminary injunction to stop the government's force-feeding on April 18, 2014, now represented by attorneys from a civil rights firm and Reprieve, a U.K.-based human rights organization. The petitioner also filed an emergency motion compelling the preservation of evidence and limited discovery on May 13, to allow the petitioner to gather evidence of forcible cell extractions and force-feedings for the hearing on the motion for preliminary injunction. On May 16, 2014, Judge Kessler converted the upcoming motion hearing into a status conference and also entered a Temporary Restraining Order to prevent any cell extractions and force-feeding until a hearing could be held on the issue.

A bench conference regarding the motion for preliminary injunction was held on May 21, 2014, and on May 22 Judge Kessler entered an order denying a re-issuance of the TRO. The petitioner had indicated that he was willing to be enterally fed (directly into the stomach through the skin) if the feeding "could be done at the hospital in Guantánamo Bay, if he could be spared the agony of having the feeding tubes inserted and removed for each feeding, and if he could be spared the pain and discomfort of the restraint chair." However, the government refused to make these compromises. Judge Kessler noted that the court was as a result faced with an "anguishing" choice: either re-issue the TRO preventing force-feeding which would likely result in the petitioner's death by starvation, or refuse to re-issue the TRO and allowing force-feeding to continue. Judge Kessler could not let the petitioner die, and thus refused to re-issue the TRO. On May 23, Judge Kessler issued another order granting the petitioner's motion for limited discovery.

On June 20, 2014, a group of 16 news media organizations filed a motion to intervene to enforce the public's right of access to the video evidence being gathered for this action. On August 8, 2014, the court granted a government motion to for an interim protective order against the release of the video evidence by plaintiff's counsel. 2014 WL 4057054. The news media organizations requested that the video evidence be unsealed for publishing. Judge Kessler granted this motion on October 3, 2014. 2014 WL 5100602. On December 3, 2014, the government appealed this result to the D.C. Circuit.

Judge Kessler held a hearing on the petitioner's motion for preliminary injunction from October 6 to 8, 2014. Judge Kessler denied a motion from the government to close the hearing to the public. 70 F. Supp. 3d 465. On November 7, Judge Kessler denied the petitioner's motion for preliminary injunction, holding that the petitioner had failed to demonstrate the "deliberate indifference" standard set forth in Estelle v. Gamble, 429 U.S. 97 (1976). On November 10, the petitioner appealed the decision to the D.C. Circuit.

On December 8, 2014, the government notified the District Court that the petitioner had been transferred from Guantánamo Bay Naval Station to the government of Uruguay. On December 19, the petitioner moved to dismiss the appeal as moot. The D.C. Circuit granted the motion on March 9, 2015.

Although the petitioner was no longer a Guantánamo Bay detainee, the government's appeal of Judge Kessler's order to unseal video evidence of force-feeding proceeded. On May 29, 2015, the D.C. Circuit held that it lacked jurisdiction to decide on the government's appeal of the unsealing of video evidence of force-feeding. 787 F.3d 563 (D.C. Cir. 2015). On July 10, 2015, Judge Kessler ordered the government to complete redaction of the video evidence for the intervenors. The government filed a motion to reconsider on July 22. Judge Kessler denied the motion on October 27, 2015. Additional motions were argued and ruled upon regarding the exact extent of the redactions, with the result that Judge Kessler ordered all audio and visual information identifying government personnel redacted from the tapes. (151 F.Supp.3d 28 and 70 F.Supp.3d 486).

The parties cross appealed from Judge Kessler's ruling, with the plaintiff and press intervenors seeking narrower redactions and the government seeking to withhold the tape entirely. On March 31, 2017, a D.C. Circuit Court of Appeals panel (consisting of Judges Randolph, Rogers, and Williams) issued an opinion reversing the District Court and forbidding the release of the tapes. 852 F.3d 1087. The court highlighted that the tapes could be used as propaganda against the United States, and that images showing the interior of the Guantanamo facility posed a security risk to the facility.

	Document
1:05-cv-01457	Docket [PACER] Dhiab v. Bush	May 23, 2017	May 23, 2017 Docket
1 1:05-cv-01457	Petition for Writ of Habeas Corpus Dhiab v. Bush	July 22, 2005	July 22, 2005 Complaint
32 1:05-cv-01457	Order Dhiab v. Bush	April 14, 2008	April 14, 2008 Order/Opinion
109 05-01456	Order Dhiab v. Bush	Jan. 29, 2009	Jan. 29, 2009 Order/Opinion
183 1:05-cv-01457	Memorandum Order	July 8, 2013	July 8, 2013 Order/Opinion
206-1 13-05223	Opinion U. S. Court of Appeals for the District of Columbia Circuit	Feb. 11, 2014	Feb. 11, 2014 Order/Opinion
217 1:05-cv-01457	Emergency Motion for Order Compelling Preservation of Evidence and Limited Discovery, by May 18, 2014, of Medical Records and Video Tapes of Force-Feedings and Forcible Cell Extractions	May 13, 2014	May 13, 2014 Pleading / Motion / Brief
221 1:05-cv-01457	Order	May 16, 2014	May 16, 2014 Order/Opinion
223-2 1:05-cv-01457	Second Supplemental Declaration of Cori Crider	May 20, 2014	May 20, 2014 Declaration/Affidavit
223-1 1:05-cv-01457	Declaration of Cortney Busch	May 20, 2014	May 20, 2014 Declaration/Affidavit

ECF Number	Description	Date	Link Date / Link
1	PETITION for Writ of Habeas Corpus (Filing fee $ 5.) filed by JIHAD DHIAB, SHAKER AAMER.(lc, ) (Entered: 07/27/2005)	July 22, 2005	July 22, 2005 RECAP
2	NOTICE OF RELATED CASE by JIHAD DHIAB, SHAKER AAMER. Case related to Case No. 04-1254. (lc, ) (Entered: 07/27/2005)	July 22, 2005	July 22, 2005 RECAP
3	RESPONSE to 2 Petitioners' Notice of Related Case filed by GEORGE W. BUSH, DONALD RUMSFELD, JAY HOOD, BRICE GYURISKO. (Attachments: # 1 Certificate of Service)(Noronha, Preeya) (Entered: 07/29/2005) 1 Certificate of Service View on RECAP	July 29, 2005	July 29, 2005 RECAP
4	MOTION to Stay Proceedings Pending Related Appeals and for Continued Coordination by GEORGE W. BUSH, DONALD RUMSFELD, JAY HOOD, BRICE GYURISKO. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Text of Proposed Order # 5 Certificate of Service)(Noronha, Preeya) (Entered: 07/29/2005) 1 Exhibit A View on RECAP 2 Exhibit B View on RECAP 3 Exhibit C View on RECAP 4 Text of Proposed Order View on RECAP 5 Certificate of Service View on RECAP	July 29, 2005	July 29, 2005 RECAP
5	Case Reassigned to Judge Gladys Kessler. Judge Henry H. Kennedy no longer assigned to the case. (lc, ) (Entered: 08/02/2005)	Aug. 2, 2005	Aug. 2, 2005 RECAP
6	RESPONSE to 4 Respondents' Motion to Stay Proceedings (Petitioner's Conditional Consent) filed by JIHAD DHIAB. (Attachments: # 1 Exhibit 1.18.05 Unclassified Memorandum# 2 Text of Proposed Order Proposed Order re Motion to Stay)(Soble, Richard) Modified on 8/11/2005 (rje, ). (Entered: 08/08/2005) 1 Exhibit 1.18.05 Unclassified Memorandum View on RECAP 2 Text of Proposed Order Proposed Order re Motion to Stay View on RECAP	Aug. 8, 2005	Aug. 8, 2005 RECAP
7	REPLY 3 to Respondent's Objection to Petitioner's Related-Case Designation filed by JIHAD DHIAB. (Soble, Richard) Modified on 8/11/2005 (rje, ). (Entered: 08/08/2005)	Aug. 8, 2005	Aug. 8, 2005 RECAP
8	ORDER sustaining Respondents' Objection to Petitioners' Related Case Designation [#3]. Signed by Judge Gladys Kessler on August 10, 2005. (lcgk1, ) (Entered: 08/10/2005)	Aug. 10, 2005	Aug. 10, 2005 RECAP
9	REPLY to opposition to motion re 4 Respondents' Reply Memorandum in Support of Motion to Stay Proceedings Pending Related Appeals And for Continued Coordination filed by GEORGE W. BUSH, DONALD RUMSFELD, JAY HOOD, BRICE GYURISKO. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Schwartz, James) (Entered: 08/16/2005) 1 Exhibit 1 View on RECAP 2 Exhibit 2 View on RECAP 3 Exhibit 3 View on RECAP	Aug. 16, 2005	Aug. 16, 2005 RECAP
	MINUTE ORDER granting 4 Respondents' Motion to Stay . Signed by Judge Gladys Kessler on 8/29/05. (CS, )	Aug. 29, 2005	Aug. 29, 2005 PACER
10	ORDER referring all motions pertaining to interpretation or construction of any protective order which has been entered in any of these cases to Magistrate Judge Alan Kay; referring to Magistrate Judge Kay all disputes pertaining to logistical issues, such as communications with or visits to clients and counsel. Signed by Judge Gladys Kessler, Chair of Calendar and Case Management Committee, on 11/2/05. (Entered: 11/02/2005)	Nov. 2, 2005	Nov. 2, 2005 RECAP
11	NOTICE of Appearance by Terry Marcus Henry on behalf of GEORGE W. BUSH, DONALD RUMSFELD, JAY HOOD, BRICE GYURISKO (Henry, Terry) (Entered: 11/23/2005)	Nov. 23, 2005	Nov. 23, 2005 RECAP
12	NOTIFICATION OF SUPPLEMENTAL AUTHORITY by respondents GEORGE WALKER BUSH, and DONALD RUMSFELD, et al. (Attachments: # 1 Exhibit)(jeb, ) (Entered: 01/04/2006) 1 Exhibit View on RECAP	Jan. 4, 2006	Jan. 4, 2006 RECAP
13	WITHDRAWN.....MOTION for procedures related to review of certain detainee materials and Motion for expedited briefing by Respondents, GEORGE WALKER BUSH, et al. (Attachments: # 1 Exhibit A-Declaration of Harry B. Harris# 2 Exhibit B-Declaration of Carol Kishardt# 3 Text of Proposed Order for Briefing# 4 Text of Proposed Order regarding review of detainee materials)Associated Cases: (jeb) Modified on 8/14/2007 (tg, ). (Entered: 07/07/2006) 1 Exhibit A-Declaration of Harry B. Harris View on RECAP 2 Exhibit B-Declaration of Carol Kishardt View on RECAP 3 Text of Proposed Order for Briefing View on RECAP 4 Text of Proposed Order regarding review of detainee materials View on RECAP	July 7, 2006	July 7, 2006 RECAP
14	NOTICE regarding steps taken in the wake of the Supreme Court's recent decision in Hamdan v. Rumsfeld by Respondents GEORGE WALKER BUSH, et al. (jeb, ) (Entered: 07/07/2006)	July 7, 2006	July 7, 2006 RECAP
	Set Hearings: Settlement Conference set for 7/19/2006 02:30 PM in Chambers before Magistrate Judge Alan Kay as set forth in the Court's Order this date.	July 17, 2006	July 17, 2006 PACER
	MINUTE ORDER setting settlement conference regarding Respondents' Motion for Procedures Related to Review of Certain Detainee Materials. The mediation will take place in chambers on Wednesday, July 19, 2006 at 2:30 p.m. Certain designated representatives will attend on behalf of Habeas Petitioners. Signed by Magistrate Judge Alan Kay on 7/17/2006. (lckay1, )	July 17, 2006	July 17, 2006 PACER
15	SUPPLEMENTAL MEMORANDUM correcting July 7, 2006 MOTION for procedures related to review of certain detainee materials and response to supplemental memoranda of certain petitioners filed by Respondents. (Attachments: # 1 Exhibit C-Supplemental Declaration of Kisthardt)Associated Cases: (jeb, ) (Entered: 08/11/2006) 1 Exhibit C-Supplemental Declaration of Kisthardt View on RECAP	Aug. 11, 2006	Aug. 11, 2006 RECAP
16	RESPONSE to Order of Court 206 directing respondents to file a notice by 8/15/06 that identifies any petitioner who respondents believe in good faith had not communicated with any counsel filed by Respondents (Attachments: # 1 Exhibit 1-Chart regarding seized materials and privileged communications) (Entered: 08/15/2006) 1 Exhibit 1-Chart regarding seized materials and privileged communications View on RECAP	Aug. 15, 2006	Aug. 15, 2006 RECAP
17	NOTICE of Filing Military Commission Act by Respondents. (Attachments: # 1 Military Commision Act of 2006) (Entered: 10/18/2006) 1 Military Commision Act of 2006 View on RECAP	Oct. 18, 2006	Oct. 18, 2006 RECAP
18	NOTICE OF WITHDRAWAL OF APPEARANCE as to GEORGE WALKER BUSH. Attorney Preeya M. Noronha terminated. (Entered: 12/21/2006)	Dec. 18, 2006	Dec. 18, 2006 RECAP
19	NOTICE of Appearance by Judry Laeb Subar on behalf of respondents. (Entered: 01/25/2007)	Jan. 25, 2007	Jan. 25, 2007 RECAP
20	MOTION to Dismiss by Respondents. (Attachments: # 1 Exhibit A-Second Declaration of Karen L. Hecker# 2 Exhibit B-List of Released Enemy Combatant Detainees# 3 Exhibit C-List of Released-No Longer Enemy Combatant Detainees# 4 Exhibit D-USCA Judgment-Kiyemba# 5 Exhibit E-USCA Judgment re: Paracha# 6 Exhibit F-Declaration of Matthew C. Waxman# 7 Text of Proposed Order)Associated Cases: 1:02-cv-00299-CKK et al.(jeb) (jeb, ). (Entered: 04/19/2007)	April 19, 2007	April 19, 2007 RECAP
21	NOTICE of Appearance by Shayana Devendra Kadidal on behalf of JIHAD DHIAB, SHAKER AAMER (Kadidal, Shayana) (Entered: 05/03/2007)	May 3, 2007	May 3, 2007 RECAP
22	Memorandum in opposition to re 20 MOTION to Dismiss, Motion for a Stay-and-Abey Order, and Notice of Intent to File Petition under the Detainee Treatment Act filed by JIHAD DHIAB, SHAKER AAMER. (Kadidal, Shayana) (Entered: 05/03/2007)	May 3, 2007	May 3, 2007 RECAP
23	REPLY to opposition to motion re 20 MOTION to Dismiss filed by GEORGE W. BUSH, DONALD RUMSFELD, JAY HOOD, BRICE GYURISKO. (Attachments: # 1 Exhibit Zalita Order)(Schwartz, James) (Entered: 05/14/2007) 1 Exhibit Zalita Order View on RECAP	May 14, 2007	May 14, 2007 RECAP
24	RESPONSE to Motion for a Stay-and-Abey Order, and Notice of Intent to File Petition under the Detainee Treatment Act filed by GEORGE W. BUSH, DONALD RUMSFELD, JAY HOOD, BRICE GYURISKO. (Attachments: # 1 Exhibit Zalita Orders)(Schwartz, James) (Entered: 05/14/2007) 1 Exhibit Zalita Orders View on RECAP	May 14, 2007	May 14, 2007 RECAP
25	NOTICE OF WITHDRAWAL OF MOTION by GEORGE W. BUSH, DONALD RUMSFELD, JAY HOOD, BRICE GYURISKO re 13 MOTION to Expedite MOTION for procedures related to review of certain detainee materials (Warden, Andrew) (Entered: 08/13/2007)	Aug. 13, 2007	Aug. 13, 2007 RECAP
26	NOTICE OF WITHDRAWAL OF APPEARANCE as to JIHAD DHIAB, SHAKER AAMER. Attorney Richard A. Soble terminated. (Soble, Richard) (Entered: 11/06/2007)	Nov. 6, 2007	Nov. 6, 2007 RECAP
27	NOTICE of Appearance by Zachary Katznelson on behalf of JIHAD DHIAB, SHAKER AAMER (Katznelson, Zachary) (Entered: 12/17/2007)	Dec. 17, 2007	Dec. 17, 2007 RECAP
28	N0TICE Of Report Regarding Preservation Filed by GEORGE BUSH, et al.(jeb, ) (Entered: 02/13/2008)	Feb. 13, 2008	Feb. 13, 2008 PACER
29	MOTION to Lift Stay Temporarily for Entry of Protective Order by JIHAD DHIAB, SHAKER AAMER (Attachments: # 1 Exhibit AMENDED PROTECTIVE ORDER AND PROCEDURES FOR COUNSEL ACCESS TO DETAINEES AT THE UNITED STATES NAVAL BASE IN GUANTANAMO BAY, CUBA, # 2 Exhibit ORDER SUPPLEMENTING AND AMENDING FILING PROCEDURES CONTAINED IN NOVEMBER 8, 2004 AMENDED PROTECTIVE ORDER, # 3 Exhibit ORDER ADDRESSING DESIGNATION PROCEDURES FOR "PROTECTED INFORMATION", # 4 Text of Proposed Order)(Katznelson, Zachary) (Entered: 03/20/2008) 1 Exhibit AMENDED PROTECTIVE ORDER AND PROCEDURES FOR COUNSEL ACCESS TO DETAINEES View on RECAP 2 Exhibit ORDER SUPPLEMENTING AND AMENDING FILING PROCEDURES CONTAINED IN NOVEMBER View on RECAP 3 Exhibit ORDER ADDRESSING DESIGNATION PROCEDURES FOR "PROTECTED INFORMATION& View on RECAP 4 Text of Proposed Order View on RECAP	March 20, 2008	March 20, 2008 RECAP
	Set/Reset Deadlines: Responses due by 3/31/2008 (CL, )	March 24, 2008	March 24, 2008 PACER
	MINUTE ORDER: The Government shall file, by March 31, 2008 at 12:00 noon, its Opposition to Petitioners' Motion to Lift Stay Temporarily for Entry of a Protective Order. Signed by Judge Gladys Kessler on 3/24/08. (CL, )	March 24, 2008	March 24, 2008 PACER
30	Memorandum in opposition to re 29 MOTION to Lift Stay Temporarily for Entry of Protective Order filed by GEORGE W. BUSH, DONALD RUMSFELD, JAY HOOD, BRICE GYURISKO. (Attachments: # 1 Text of Proposed Order)(Warden, Andrew) (Entered: 03/31/2008) 1 Text of Proposed Order View on RECAP	March 31, 2008	March 31, 2008 RECAP
31	SUPPLEMENTAL MEMORANDUM to re 30 Memorandum in Opposition filed by GEORGE W. BUSH, DONALD RUMSFELD, JAY HOOD, BRICE GYURISKO. (Warden, Andrew) (Entered: 04/01/2008)	April 1, 2008	April 1, 2008 RECAP
32	ORDER re: 29 Motion for Temporary Lift of Stay and Entry of Protective Order; ORDERED that the Amended Protective Order and Procedures for Counsel Access to Detainees at the United States Naval Base in Guantanamo Bay, Cuba, first issued on 11/8/04 (344 F. Supp. 2d 174 (D.D.C. 2004)), the Order Supplementing and Amending Filing Procedures Contained in 11/8/04 Amended Protective Order, first issued on 12/13/04, and the Order Addressing Designation Procedures for "Protected Information," first issued on 11/10/04, all in the In re Guantanamo Bay Detainee Cases, shall be entered in this case. Signed by Judge Gladys Kessler on 4/14/08. (ztth, ) (Entered: 04/14/2008)	April 14, 2008	April 14, 2008 RECAP
33	MOTION for Leave to Practice and Notice of Appearance for Cori Crider by JIHAD DHIAB (Attachments: # 1 Protective Order Documents)(jeb, ) (Entered: 05/02/2008) 1 Protective Order Documents View on RECAP	April 30, 2008	April 30, 2008 RECAP
34	ORDER granting 33 counsel's Motion for Leave to Appear on behalf of Petitioner/Plaintiff with the condition that counsel file a praecipe, within 30 days, that counsel has obtained a copy of the Local Rules of this Court, is prepared to become familiar with them, and follow them. Signed by Judge Gladys Kessler on 5/5/08. (CL, ) (Entered: 05/05/2008)	May 5, 2008	May 5, 2008 RECAP
	Set/Reset Deadlines: Praecipe due 6/5/2008 (CL, )	May 5, 2008	May 5, 2008 PACER

Case: Dhiab v. Obama

1:05-cv-01457 | U.S. District Court for the District of Columbia

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