Case: Dhiab v. Obama

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 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.

The case is now closed.