Wednesday, February 11, 2009
Judge Gladys Kessler (D.D.C.) yesterday denied Guantanamo detainees' motion for a preliminary injunction to halt the government's techniques in force-feeding them during their hunger strike. The detainees claimed that the government's use of a restraint chair and a nasal feeding tube amounted to torture. They filed a habeas petition and the motion for preliminary injunction at issue here.
On the first prong of the preliminary injunction analysis--the likelihood of success on the merits--Judge Kessler ruled that the court lacked jurisdiction under the Military Commission Act.
The MCA stripped federal courts of jurisdiction over detainees' habeas claims, but the Supreme Court last summer In Boumediene v. Bush overturned a portion of the MCA--Section 2241(e)(1), which denied federal court jurisdiction with respect to habeas actions by detained aliens determined to be enemy combatants--and ruled that the privilege of habeas extended to detainees at Guantanamo.
But the Court in Boumediene left open the constitutionality of Section 2241(e)(2), which denies jurisdiction as to "any other action against the United States . . . relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of a detained alien determined to be an enemy combatant.
Judge Kessler ruled that the detainees' habeas case here was more in the nature of a Section 2241(e)(2) case, because the detainees sought relief from certain treatment at Guantanamo (and not general release). Judge Kessler ruled that the Court in Boumediene did not overturn Section 2241(e)(2), that Section 2241(e)(2) strips the court of jurisdiction to hear the petitioners' claims, and that the petitioners' likelihood of success is therefore quite low. Judge Kessler:
Petitioners seek an injunction to alter the conditions under which they are force-fed and provided medical treatment. The relief they seek clearly falls under Section 2241(e)(2). . . . Boumediene struck down as unconstitutional Section 2241(e)(1), which denied detainees the right to habeas corpus review in federal court. In doing so, the Supreme Court, in clear and direct language, refused to address "the reach of the writ with respect to claims of unlawful conditions of treatment or confinement."
See pages 10 to 16 of the opinion for more.
Three D.C. judges have now ruled that Boumediene did not overturn Section 2241(e)(2). I posted on one of those cases here.