United States Court of Appeals, District of Columbia Circuit
SHAKER ABDURRAHEEM AAMER, DETAINEE, CAMP DELTA AND SAEED AHMED SIDDIQUE, NEXT FRIEND OF SHAKER ABDURRAHEEM AAMER, APPELLANTS
BARACK OBAMA, PRESIDENT OF THE UNITED STATES OF AMERICA, ET AL., APPELLEES
Argued October 18, 2013.
[Copyrighted Material Omitted]
Appeals from the United States District Court for the District of Columbia. (No. 1:04-cv-02215), (No. 1:05-cv-01504), (No. 1:05-cv-02349), (No. 1:05-cv-01457).
Jon B. Eisenberg argued the cause for appellants. With him on the brief were Cori Crider and Tara Murray. Shayana D. Kadidal entered an appearance.
Daniel J. Lenerz, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Stuart F. Delery, Assistant Attorney General, and Douglas N. Letter and Matthew M. Collette, Attorneys.
Before: TATEL and GRIFFITH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Tatel, Circuit Judge:
Petitioners Ahmed Belbacha, Abu Dhiab, and Shaker Aamer are detainees who, although cleared for release, remain held at the United States Naval Station at Guantanamo Bay, Cuba. Protesting their continued confinement, they and other similarly situated detainees have engaged in a hunger strike, refusing to eat unless and until released. In response, the government instituted a force-feeding protocol. Petitioners, each of whom had already sought release via a writ of habeas corpus, moved in those habeas actions for a preliminary injunction preventing the government from subjecting them to force-feeding. Two separate district judges denied their requests, each concluding that the Military Commissions Act (MCA) stripped federal courts of jurisdiction to consider such challenges brought by Guantanamo detainees. For the reasons set forth in this opinion, we conclude that under the law of this circuit petitioners' challenges to the conditions of their confinement properly sound in habeas corpus and thus are not barred by the MCA. We also conclude, however, that although their claims are not insubstantial, petitioners have failed to establish their entitlement to preliminary injunctive relief.
A declaration submitted by the Senior Medical Officer at Guantanamo Bay summarizes the government's force-feeding protocol. According to the declaration, the protocol " follows the Federal Bureau of Prisons' model and guidelines for managing hunger strikers." Decl. of Commander [Redacted], M.D., 3. The medical staff at Guantanamo begins by designating a detainee as a " hunger striker... based on the detainee's intent, purpose, and behavior," the detainee's " [w]eight loss to a level less than 85% of the detainee's Ideal Body Weight," or the detainee's missing " nine consecutive meals." Id. Then, if " medical personnel determine the detainee's refusal to voluntarily consume adequate food or nutrients could now threaten his life or health," the detainee may be " approved for enteral feeding" --that is, force-feeding using " nasogastric tubes" inserted through the detainee's nose and into his stomach. Id. at 4. The declaration states that even after a detainee is approved for such treatment, " medical personnel will only implement enteral feeding when it becomes medically necessary to preserve a detainee's life and health." Id. The medical staff will also offer the detainee a final " opportunity to eat a standard meal or consume [a] liquid supplement orally, instead of being enterally fed." Id.
If the detainee refuses, officials will strap him to a " restraint chair." Decl. of
Commander [Redacted], M.D., 5. The restraint chair, the declaration explains, " is ergonomically designed for the detainee's comfort and protection, with a padded seat and padded back support." Id. Once the detainee is restrained, " physicians or credentialed registered nurses" insert the " nasogastric tubes" through the detainee's nostril using a lubricant and, unless the detainee declines, " a topical anesthetic such as lidocane." Id. at 4. After medical personnel have verified that the tube has been properly placed in the detainee's stomach, " an appropriate amount of nutritional supplement formula is infused by gravity." Id. The actual feeding process " typically takes 30 to 40 minutes." Id. Once the feeding is complete, the medical staff keeps the detainee strapped in the restraint chair for an additional period in order " to ensure the detainee has tolerated the feeding and to permit digestion of the nutritional formula." Id. at 5. " Detainees are offered pain relievers, such as ibuprofen, if they indicate any discomfort from the feeding procedure." Id.
Medical staff designated petitioners Dhiab, Belbacha, and Aamer as hunger strikers in March 2013. Decl. of Commander [Redacted], M.D., 7. The staff approved Dhiab for enteral feeding that same month, and Belbacha shortly thereafter. Id. A declaration submitted by petitioners' counsel reports that, as of May 30, 2013, medical personnel had regularly subjected Belbacha to force-feeding. See Crider Decl. 6. Belbacha stated that the process " hurt a great deal" and caused one of his nostrils to swell shut. Id. Dhiab, the same declaration recounted, had also been regularly forcefed--except when, because of " severe pain," he had instead voluntarily consumed a liquid supplement. Id. at 14, 17. Although Aamer was never approved for enteral feeding, apparently because he had been willing to consume the minimal amount of nutrition necessary to avoid such treatment, he asserted through counsel that " if force-feeding were not permitted, he would escalate his peaceful protest and refuse food." Id. at 12. The government has informed us that although neither Belbacha nor Aamer is currently designated as a hunger striker, Dhiab retains that designation. See Appellees' Letter Regarding Case Status, November 8, 2013; Appellees' Letter Regarding Case Status, October 24, 2013.
In June, petitioners--together with fellow Guantanamo detainee Nabil Hadjarab, who has since been released--invoked the district court's habeas jurisdiction and moved for a preliminary injunction prohibiting the authorities from force-feeding them. According to petitioners, the practice violated both their constitutional rights and the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1.
Judge Kessler considered Dhiab's petition separately from those of the other petitioners. Holding that section 7 of the Military Commissions Act of 2006 (MCA), Pub. L. No. 109-366, 120 Stat. 2600, had stripped the district courts of subject-matter jurisdiction over claims, such as Dhiab's, relating to the " conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant," she rejected the request for a preliminary injunction. Dhiab v. Obama, 952 F.Supp.2d 154, *4 (D.D.C.
2013) (unpublished) (quoting 28 U.S.C. § 2241(e)(2)). She also observed,
however, that " it is perfectly clear... that force-feeding is a painful,
humiliating and degrading process."
Judge Collyer subsequently denied the remaining petitioners' applications for a preliminary injunction. Aamer v. Obama, Nos. 04-2215, 05-1504, 05-2349, 953 F.Supp.2d 213, *16 (D.D.C. July 16, 2013) (unpublished).
Like Judge Kessler, she concluded that MCA section 7 stripped the courts of subject-matter jurisdiction over the detainees' claims. Judge Collyer went on to explain that even if the court had jurisdiction, " the motion would be denied due to failure to show likelihood of success on the merits and because the public interest and balance of harms weighs in favor of the Government." Id. She reasoned that the government has " legitimate penological
interest[s] in preventing suicide" and in " preserving order, security, and
discipline," and that " the requested injunction would increase the risk of
irreparable harm to Petitioners' lives and health."
After both sets of petitioners appealed, we consolidated the cases. Petitioners assert, as they did in the district court, that their claims are properly raised in a petition for habeas corpus. They further contend that the two district courts should have granted them the preliminary relief they sought.
We begin, as we must, with the question of subject-matter jurisdiction. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101-02, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). The government contends, as both district courts held, that the MCA's jurisdiction-stripping provision bars federal courts from considering petitioners' force-feeding challenges. Our review is de novo. Ass'n of Civilian Technicians v. FLRA, 283 F.3d 339, 341, 350 U.S. App. D.C. 238 (D.C. Cir. 2002).
Congress and the Supreme Court have engaged in an extensive back-and-forth regarding the scope of federal court jurisdiction over claims brought by Guantanamo detainees. A brief review of this dialogue is necessary to understand the question now before us.
The story starts with Rasul v. Bush, 542 U.S. 466, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004). In that case, several Guantanamo detainees had filed a petition for habeas corpus seeking " release from custody, access to counsel, freedom from interrogations, and other relief." Id. at 472. Other detainees, invoking the jurisdictional provisions of 28 U.S.C. § § 1331 and 1350, sought " to be informed of the charges against them, to be allowed to meet with their families and with counsel, and to have access to the courts or to some other impartial tribunal." Id. The Supreme Court held that the district court had jurisdiction to hear all of these claims. Id. at 483-85. It explained that 28 U.S.C. § 2241, the federal habeas corpus statute, extended to those detained at Guantanamo, which, for the purposes of this statute at least, was " within 'the territorial jurisdiction' of the United States." Id. at 480 (quoting Foley Brothers, Inc. v. Cilardo, 336 U.S. 281, 285, 69 S.Ct. 575, 93 L.Ed. 680 (1949)). The Court further concluded that if statutory habeas jurisdiction extended to Guantanamo, then there was no reason to bar detainees from also raising claims pursuant to sections 1331 and 1350: the detainees were entitled to " the privilege of litigation in U.S. courts." Id. at 484 (internal quotation marks omitted).
Shortly thereafter, Congress passed the Detainee Treatment Act of 2005 (DTA), Pub. L. No. 109-148, 119 Stat. 2739, which contained a provision designed to abrogate Rasul and strip federal courts of jurisdiction over Guantanamo detainees' claims. See DTA § 1005(e). After the Supreme Court held that this provision could not apply retroactively to cases pending at the time the DTA was enacted, see Hamdan v. Rumsfeld, 548 U.S. 557, 575-76, 126 S.Ct.
2749, 165 L.Ed.2d 723 (2006), Congress responded by passing the MCA, the statute at issue in this case, whose jurisdiction-stripping provisions unequivocally applied to all claims brought by Guantanamo detainees. See Boumediene v. Bush, 553 U.S. 723, 736-39, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008). MCA section 7 provides:
(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
(2) Except as provided [in section 1005(e) of the DTA], no 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 detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
28 U.S.C. § 2241(e).
Passage of the MCA required the Supreme Court to confront the constitutional question it had until then successfully avoided: may Congress eliminate federal habeas jurisdiction over Guantanamo without complying with the requirements of the Suspension Clause? In Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), the Court answered this question in the negative. It first held that the Suspension Clause " has full effect at Guantanamo Bay." Id. at 771. The Court then concluded that the substitute procedures Congress had developed for Guantanamo detainees--review in this court of military tribunal decisions--were " an inadequate substitute for habeas corpus," id. at 792, which at the very least " entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to 'the erroneous application or interpretation' of relevant law" before a court that " must have the power to order the conditional release of an individual unlawfully detained," id. at 779 (quoting INS v. St. Cyr, 533 U.S. 289, 302, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)). Thus, the Court held, MCA section 7 " operates as an unconstitutional suspension of the writ." Id. at 733, 792.
This court addressed Boumediene 's effect on the relevant jurisdictional statutes in Kiyemba v. Obama, 561 F.3d 509, 385 U.S. App. D.C. 198 (D.C. Cir. 2009). In petitions for habeas corpus, nine detainees had sought to bar the government from transferring them to a country where they might be tortured or detained. Id. at 511. The government contended that the district court lacked jurisdiction to consider such claims, arguing that Boumediene held MCA section 7 to be " unconstitutional only insofar as it purported to deprive the district court of jurisdiction to hear a claim falling within the 'core' of the constitutional right to habeas corpus, such as a challenge to the petitioner's detention or the duration thereof." Id. at 512. Rejecting that argument, we held--in language central to this case--that Boumediene " invalidate[d] § 2241(e)(1) with respect to all habeas claims brought by Guantanamo detainees, not simply with respect to so-called 'core' habeas claims." Id. Thus, the Supreme Court's decision had " necessarily restored the status quo ante, in which detainees at Guantanamo had the right to petition for habeas under § 2241." Id. at 512 n.2. Because the federal courts' statutory habeas jurisdiction had been restored, we saw
" no need to decide... whether the... petitions c[a]me within the contours and content of constitutional habeas." Id. (internal quotation marks omitted). Rather, the question was simply whether the petitioners had " allege[d] a proper claim for habeas relief." Id. at 513. We concluded that they had. Id.
Subsequently, in Al-Zahrani v. Rodriguez, 669 F.3d 315, 399 U.S. App. D.C. 258 (D.C. Cir. 2012), we clarified that section 2241(e)(2)--the other subsection of MCA section 7--continues in force. In Al-Zahrani, which involved a suit brought by families of detainees who had died at Guantanamo, id. at 316-17, we held that the district court lacked jurisdiction because the " litigation rather plainly constitute[d] an action other than habeas corpus brought against the United States and its agents relating to 'aspect[s] of the detention... treatment... [and] conditions of confinement of an alien' as described in the MCA," id. at 319. Boumediene, we explained, dealt with section 2241(e)(1), which stripped federal courts of habeas jurisdiction. Id. By contrast, section 2241(e)(2) " has no effect on habeas jurisdiction," and thus the " Suspension Clause is not relevant and does not affect the constitutionality of the statute." Id. We went on to reject the plaintiffs' claim that section 2241(e)(2) was itself unconstitutional, observing that the only remedy sought by the plaintiffs was money damages and that " such remedies are not constitutionally required." Id.
Kiyemba and Al-Zahrani make clear that the jurisdictional question we consider here is relatively narrow: are petitioners' claims the sort that may be raised in a federal habeas petition under section 2241? As the government emphasizes, petitioners challenge neither the fact nor the duration of their detention, claims that would lie at the heart of habeas corpus. See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (" [T]he traditional function of the writ is to secure release from illegal custody." ). Instead, they attack the conditions of their confinement, asserting that their treatment while in custody renders that custody illegal--claims that state and federal prisoners might typically raise in federal court pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). But although petitioners' claims undoubtedly fall outside the historical core of the writ, that hardly means they are not a " proper subject of statutory habeas." Kiyemba, 561 F.3d at 513. " Habeas is not 'a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose.'" Boumediene, 553 U.S. at 780 (quoting Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963)).
If, as petitioners assert, their claims fall within the scope of habeas, then the district courts possessed jurisdiction to consider them because the federal habeas corpus statute extends, in its entirety, to Guantanamo. See Kiyemba, 561 F.3d at 512 & n.2. But if petitioners' claims do not sound in habeas, their challenges " constitute an action other than habeas corpus" barred by section 2241(e)(2). Al-Zahrani, 669 F.3d at 319.
Contrary to the contentions of the government and the dissent, in order to resolve this jurisdictional question we have no need to inquire into Congress's intent regarding federal court power to hear Guantanamo detainees' claims. Although Congress undoubtedly intended to preclude federal courts from exercising jurisdiction over any claims brought by Guantanamo detainees, it chose to do so through a statute that separately proscribes
two different sorts of challenges: " habeas" actions, see 28 U.S.C. § 2241(e)(1), and all " other" actions, see id. § 2241(e)(2). Boumediene struck down the first of these--the provision that would, but for Boumediene, preclude Guantanamo detainees from bringing habeas actions. See Kiyemba, 561 F.3d at 512. The remaining, lawful subsection of MCA section 7 has, by its terms, " no effect on habeas jurisdiction." Al-Zahrani, 669 F.3d at 319. In the wake of Boumediene and this court's interpretation of that decision in Kiyemba, Congress might very well want to preclude Guantanamo detainees from bringing particular types of habeas actions. But even assuming that Congress intends to again strip federal courts of habeas jurisdiction, it has yet to do so. Because we are unable to give effect to a non-existent statute, any such unmanifested congressional intent has no bearing on whether petitioners may bring their claims. Instead, given that statutory habeas extends to Guantanamo, the issue now before us is not Guantanamo-specific. We ask simply whether a challenge such as that advanced by petitioners constitutes " a proper claim for habeas relief" if brought by an individual in custody in Guantanamo or elsewhere. Kiyemba, 561 F.3d at 513.
For the same reasons, we have no need to explore the reach or breadth of the Suspension Clause. Simply put, there is no longer any statute in place that might unconstitutionally suspend the writ. We express no view on whether Congress could constitutionally enact legislation designed to preclude federal courts from exercising jurisdiction over the particular species of habeas claim petitioners advance. For our purposes, it suffices to say that Congress has not done so. Moreover, because of our focus on statutory habeas corpus, we have less need in this case to examine the writ's scope at the time the Constitution was ratified than we might in a case in which the constitutional question was presented. Compare St. Cyr, 533 U.S. at 301 (" [A]t the absolute minimum, the Suspension Clause protects the writ 'as it existed in 1789.'" ) (quoting Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996)), with Rasul, 542 U.S. at 474 (" As it has evolved over the past two centuries, the habeas statute clearly has expanded habeas corpus ...