Wednesday, July 10, 2013
Judge Gladys Kessler (D.D.C.) this week reluctantly denied a Guantanamo detainee's plea to stop his force-feeding. Detainee Jihad Dhiab requested expidited consideration because of the risk that force-feeding during the day will deprive him of the Ramadan fast, which started July 8.
Dhiab is an 11-year detainee at Guantanamo who has received no habeas or military commission proceeding to determine the merits of his case. He was cleared for release two years ago.
Judge Kessler wrote that the court lacked jurisdiction to hear Dhiab's petition, because 28 U.S.C. Sec. 2241(e)(2) deprives courts of jurisdiction to hear an action related to "any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of an alien detainee at Guantanamo. She wrote that "the Court feels just as constrained now, as it felt in 2009, to deny this Petitioner's Application for lack of jurisdiction."
Judge Kessler went on to address the merits, though, and to urge President Obama to stop the force-feeding:
The Court also feels constrained, however, to note that Petitioner has set out in great detail in his papers what appears to be a consensus that force-feeding of prisoners violates Article 7 of the International Covenant on Civil and Political Rights which prohibits torture or cruel, inhumane, and degrading treatment. . . .
Even tough this Court is obligated to dismiss the Application for lack of jurisdiction, and therefore lacks any authority to rule on Petitioner's request, there is an individual who does have the authority to address the issue. . . .
Article II, Section 2 of the Constitution provides that "[t]he Preisdent shall be the Commander in Chief of the Army and Navy of the United States . . ." It would seem to follow, therefore, that the President of the United States, as Commander-in-Chief, has the authority--and power--to directly address the issue of force-feeding of the detainees at Guantanamo Bay.
The White House responded at the daily press briefing yesterday that the President doesn't want these detainees to die, and that he maintains his position that Guantanamo should close.