Judge Reluctantly Allows US to Resume Force-Feeding Guantánamo Hunger Striker

25.5.14

As I explained last week, the Guantánamo prisoners secured a massive court victory on May 16, when a federal court judge ordered the government to halt the force-feeding of Abu Wa’el Dhiab, a Syrian prisoner. He is one of 77 men still held (out of 154 in total) who have been cleared for release from the prison, and he is on a hunger strike and being force-fed, in large part because of his despair at ever being released, despite being told in January 2010 that the US government no longer wished to hold him.

The judge in question, Judge Gladys Kessler, also ordered the government to preserve video evidence of his force-feeding, to stop him being subjected to “forcible cell extractions” — in which guards in riot gear storm prisoner’s cells and move them to be force-fed if they refuse to go — and to preserve  all evidence of his “forcible cell extractions.”

This was the first time a judge had intervened to hold the government to account for its treatment of prisoners (following a helpful appeals court ruling in February), and on Wednesday Judge Kessler held a meeting with Mr. Dhiab’s lawyers and lawyers from the Justice Department at which she ordered the government to hand over videotapes and Mr. Dhiab’s medical records to his lawyers.

As I described it in a well-received article on Thursday:

As the Guardian described it, the US government “conceded that there are 34 videos showing the forcible feeding” of Abu Wa’el Dhiab,” adding, “The analogue video cassettes are part of a broader set of 136 videos showing Dhiab being forcibly removed from his cell by Guantánamo Bay guards bringing the hunger striker to be fed enterally.”

Judge Kessler ordered these 34 videotapes to be handed over, although, as the Guardian noted, she “did not order the tapes to be released to the public.” Instead, the government “will have to transfer the classified tapes from Guantánamo to a secured facility in the Washington D.C. area for his lawyers to view, after faces and other identifying information of Guantánamo personnel and facilities are censored.”

The Guardian added that the tapes of Dhiab’s feedings “are said to range between 15 minutes to half an hour each, suggesting the government possesses at least eight hours of footage of just one detainee enteral feeding.” They are also “said to be in a microcassette format,” and, as the Guardian described it, Jon B. Eisenberg “said they would have to be digitized for viewing, owing to formatting difficulties impacting declassified playback.” Eisenberg quipped, “Pretend it’s 1955, that’s where the technology is.”

Judge Kessler also ordered the government to produce Mr. Dhiab’s medical records. As Reprieve noted, “These records should allow the court to make a proper assessment of the traumatic impact of force-feeding on Mr. Dhiab’s declining health.” Importantly, as Reprieve also noted, “For the time being, the existing injunction remains in place,” meaning that Mr. Dhiab cannot be force-fed or subjected to “forcible cell extractions.”

Judge Kessler reluctantly drops her restraining order

On Thursday, however, Judge Kessler reluctantly lifted the stay on Mr. Dhiab’s force-feeding. She noted that, at the status hearing on Wednesday, she had “strongly suggested that the Parties come to a compromise about the procedures used to enterally feed” Mr. Dhiab, because his “physical condition was swiftly deteriorating, in large part because he was refusing food and/or water.”

She pointed out that Mr. Dhiab had “indicated his willingness to be enterally fed, if it 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.” She added, “If he could have been enterally fed in that manner, it would have then been possible to litigate his plea to enjoin certain practices used in his force feedings in a civilized and legally appropriate manner.” However, “The Department of Defense refused to make these compromises.”

As a result, Judge Kessler noted:

The Court is now faced with an anguishing Hobson’s choice: reissue another Temporary Restraining Order (‘TRO’) despite the very real probability that Mr. Dhiab will die, because he has indicated a continuing desire to refuse to eat and/or drink liquids, or refuse to issue the TRO and allow the medical personnel on the scene to take the medical actions to keep Mr. Dhiab alive, but at the possible cost of great pain and suffering.

She added:

The Court is in no position to make the complex medical decisions necessary to keep Mr. Dhiab alive. Thanks to the intransigence of the Department of Defense, Mr. Dhiab may well suffer unnecessary pain from certain enteral feeding practices and forcible cell extractions. However, the Court simply cannot let Mr. Dhiab die.

The Court does, however, remind all personnel that they should abide by their own Standard Operating Protocols, and that the standard for enteral feeding is whether Mr. Dhiab is actually facing an “imminent risk of death or great bodily injury.”

Judge Kessler’s June 16 deadline for the production of videotapes, medical records and other documents

Judge Kessler also stated that, the day after, she would “issue a scheduling order” to “facilitate the speedy exchange of discovery such that the Court can reach the merits of Mr. Dhiab’s Application,” and in that order she told the government to “produce Petitioner’s medical records from April 9, 2013 to December 31, 2013,” and to “produce all videotapes made between April 9, 2013, and February 19, 2014, that record both Petitioner’s Forcible Cell Extraction and subsequent enteral feeding” by June 10.

She also ordered he government to “file a list of all current Standard Operating Procedures/Protocols directly addressing enteral feeding and/or the use of a restraint chair at Guantánamo Bay” by the same date, as well as ordering officials to “keep the Court fully apprised as to Petitioner’s medical condition,” and she scheduled a status conference for June 16, at 10am, “to address any outstanding discovery issues and set a date for a Motion Hearing.”

As Reprieve explained in a press release, the Motion Hearing will determine “[t]he wider issue of whether force-feeding at Guantánamo is illegal … once the tapes and other key evidence have been reviewed.” For now, however, “he will continue to be subjected to force-feeding while the case is underway.”

During a phone call with his lawyers on Thursday, Mr Dhiab “said he would be willing to be subjected to artificial nutrition if it were done humanely, at the prison’s hospital or with minimal painful intubation, as was the case during the first mass hunger strike at the prison in 2005 and 2006,” largely echoing what Judge Kessler had noted.

Ironically, Judge Kessler’s scheduling order took place exactly a year after President Obama promised to resume releasing prisoners from Guantánamo, when, in a major speech on national security issues, delivering during the prison-wide hunger strike that reawakened indignation around the world at the continued existence of Guantánamo, he stated, “Look at the current situation, where we are force-feeding detainees who are holding a hunger strike … Is that who we are? Is that something that our founders foresaw? Is that the America we want to leave to our children? Our sense of justice is stronger than that.”

Despite the fine words, Abu Wa’el Dhiab is on a hunger strike and being force-fed because, although he has been cleared for release, he is in despair because of the president’s failure to release him.

In response to the latest developments in the case, Jon B. Eisenberg said, “I am stunned that the Department of Defense refused to agree to the reasonable compromise Mr. Dhiab proposed, but the real responsibility lies at the door of President Obama, who utters lofty words but fails to stop the terrible things that are happening at Guantánamo Bay on his watch. Mr. Dhiab is about to suffer some awful abuse, but I have faith in his capacity to endure it.”

Cori Crider, Reprieve’s Strategic Director, said, “The government’s refusal to make a basic commitment to treat Mr. Dhiab with decency tells you all you need to know about what is really going on at Gitmo. And where is the White House in all this? It’s been a year since the President Obama said force-feeding detainees was not ‘who we are’ and pledged a fresh push to close the prison. Well, is he, the commander-in-chief of the people, abusing Mr. Dhiab, or is he not? He could put my cleared client on a plane today if he had the will to do it.”

I couldn’t agree more, and, following the day of action on Guantánamo on Friday, when protests were held across America and around the world, calling for renewed commitment on the president’s part to freeing cleared prisoners and closing the prison, I urge readers to call the White House on 202-456-1111 or 202-456-1414 — or to submit a comment online — asking President Obama to send Abu Wa’el Dhiab and five other men cleared for release to Uruguay, where President Mujica has offered them a new home, and to release, as soon as possible, all of the 77 prisoners that his own reviewing bodies have said should no longer be held indefinitely or put forward for trials.

Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list and the chronological list of all Andy’s articles.

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12 Responses

  1. Andy Worthington says...

    On Facebook, I wrote:

    Thanks to everyone who’s been liking and sharing this. It’s an important story, and we haven’t seen the end of it, even though Judge Kessler felt compelled to drop her ban on force-feeding Abu Wa’el Dhiab. We need to do what we can to remind the world that, for some of the men in Guantanamo who are being force-fed, the only reason they’re on a hunger strike is because they’ve been approved for release but are still held, year after year. This can’t be right, and President Obama needs to do much more than he has been doing to get these men released. President Mujica of Uruguay offered Mr. Dhiab a new home with five other men. Why can these men not be put on plane to Montevideo tomorrow?

  2. Andy Worthington says...

    Willy Bach wrote:

    Andy, I think you will agree that the big flaw in this judgment is that we assume “she faced an “anguishing Hobson’s Choice” – his possible death or continued force-feeding.” Surely there are alternatives. The most obvious alternative is that US President Obama could order an end to forced feeding and all the other humiliating mistreatment and release the abductees who have been approved for release.

    That isn’t an “anguishing Hobson’s Choice”. That is a morally supportable, legitimate and courageous decision for which the rest of the world would thank him. The hard-liners in the US would have to live with it – and isn’t it time that Obama did not give them everything they want.

  3. Andy Worthington says...

    Yes, I agree, Willy, that the best solution to Judge Kessler’s “anguishing Hobson’s Choice” is in the hands of President Obama – as she indicated last summer when she was first called upon to respond to a request for help from hunger-striking prisoners. On that occasion, when she believed that judicial precedents prevented her from intervening on the prisoners’ behalf (until the appeals court ruled otherwise in February this year), she nevertheless openly pointed out that President Obama had the power to act.

    “Even though this Court is obligated to dismiss the Application for lack of jurisdiction, and therefore lacks any authority to rule on Petitioner’s request,” she wrote, “there is an individual who does have the authority to address the issue.”

    She continued: “In a speech on May 23, 2013, President Barack Obama stated, ‘Look at the current situation, where we are force-feeding detainees who are holding a hunger strike … Is that who we are? Is that something that our founders foresaw? Is that the America we want to leave to our children? Our sense of justice is stronger than that.’ Article II, Section 2 of the Constitution provides that ‘[t]he President 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 Guantánamo Bay.”

    See: http://www.andyworthington.co.uk/2013/07/10/judge-recognizes-force-feeding-as-torture-but-tells-guantanamo-prisoner-only-president-obama-can-deal-with-the-hunger-strike/

    I agree that it would have been good if Judge Kessler had repeated this in her ruling on Thursday, although she did openly criticize “the intransigence of the Department of Defense,” and took the opportunity to “remind all personnel that they should abide by their own Standard Operating Protocols, and that the standard for enteral feeding is whether Mr. Dhiab is actually facing an ‘imminent risk of death or great bodily injury.'”

    I imagine Judge Kessler would still be happy for those who seek a political solution to the problem of Guantanamo to remind President Obama of what she wrote last summer. Mr. Dhiab’s layer, Jon B. Eisenberg, reponded to Thursday’s ruling by stating, “the real responsibility lies at the door of President Obama, who utters lofty words but fails to stop the terrible things that are happening at Guantánamo Bay on his watch.”

    So here are the contact numbers for people to call the White House to tell President Obama to stop further judicial dilemmas by – first of all – releasing force-fed hunger strikers who are only on a hunger strike because they’ve been cleared for release but are still held: 202-456-1111 or 202-456-1414 — or you can submit a comment online: http://www.whitehouse.gov/contact/submit-questions-and-comments

  4. arcticredriver says...

    Thanks Andy.

    Way back when I was at University, I read some discussions of the value of a “liberal arts” education, versus a purely technical or scientific studies. I remember one phrase, from a fellow who suggested, the question shouldn’t be whether Universities should have a Philosophy Department, rather, he suggested, Universities should have a Philosopher in every Department.

    It seems Justice Kessler didn’t give any serious consideration to honoring Diyab’s autonomy, and allowing him to starve himself to death. The UK imprisoned IRA members and suspected IRA members, and some of them engaged in a long-lasting hunger strike. They were force-fed, at least, at first. One of them did, nevertheless, succeed in starving himself to death. Correct me if I am mistaken — didn’t UK legal scholars and legal officials eventually accept that respect for his human rights required respecting his decision to stop eating?

    How seriously would the US public and the world public accept an apparently sane Guantanamo captive starving himself in protest to years of indefinite detention, after he was cleared for release?

    I don’t think it is Justice Kessler’s job to prevent the US Government from wearing a black eye for driving an apparently sane man to starve himself to death to protest years of indefinite detention, after the decision it was safe to release him.

  5. Andy Worthington says...

    Thanks, arcticredriver, for your thoughts. I am sorry to say that I’m not familiar with the legal opinions regarding the Northern Irish hunger strikers, although I recall Bobby Sands’ death in 1981 after 66 days – which I always thought was a result of Margaret Thatcher’s absolute refusal to negotiate.
    Regarding Abu Wa’el Dhiab, as I mentioned in my comment to Willy, it would have been a bonus if Judge Kessler had revisited the criticism of President Obama that she made last summer, but it remains clear that the main responsibility lies with President Obama.

  6. the talking dog says...

    How seriously would the US public and the world public accept an apparently sane Guantanamo captive starving himself in protest to years of indefinite detention, after he was cleared for release?

    Those are two dramatically different “publics.” In the event of the horrifying contingency of a hunger-striker actually being permitted to die (as opposed to the horrifying contingency of a hunger-striker not being allowed to die– the likelier scenario in my view) one “public” would probably be inundated with details and images of the cruelty gratuitously inflicted on a prisoner it admits it shouldn’t be holding by “the world’s only super-power,” and the other public would likely be more concerned with details of Kim and Kanye’s wedding, or perhaps the season-ender to Game of Thrones. Even among those comparatively few alleged “progressives” who once cared about these issues, “our team’s” Barack Obama would likely get the same pass he has been getting on Guantanamo for the last five and a half years.

    Not much Judge Kessler could do, alas: her betters in the D.C. Circuit (and by their disappearance, the U.S. Supreme Court) have made it clear that the courts really don’t have the power to order a prisoner released if the government doesn’t want them released, or to do much if anything about “conditions of confinement,” and efforts to reach a sensible compromise ran into a military that, by dint of a dozen years of a legal black hole tempered only by horrible jurisprudence, now hold all the cards.

    Sadly, nothing to see here folks… move along. If there’s going to be any significant action from this President, I’m afraid it’s going to be very close to the day he himself heads for the exits. Something “exogenous” will be needed (be it an unexpected court decision, some kind of international consensus for action, something completely unforeseen, etc.), because Barack will be showing the same level of political courage he has always shown (somewhere between little and none).

    If some of our too-big-to-fail-banks were interested in the fate of GTMO prisoners, they’d be out… compare and contrast prisoners from oil-rich and hence powerful U.S. ally Saudi Arabia, who have largely all been released, as opposed to miserably poor Yemen, who have not. One likes to believe that sheer human decency would move our “leadership” to do the right thing… but as Einstein once said, the definition of insanity is doing the same thing over and over and expecting different results.

    In short… we’ll just have to think of something different, or be forced to wait for a different “leadership,” and hope the prisoners can hang on until then.

  7. Andy Worthington says...

    Great to hear from you, TD, and thank you for your thoughts – all sadly true, alas. The US, under President Obama, proudly keeps alive people who, understandably, are in despair at ever being released, because, although they were told the US no longer wanted to hold them over four years ago, that was apparently just some sort of desperately unfunny joke.
    I wish there was a way to make President Obama to take decisive action before the mid-term elections, and I know myself and others will keep trying. After that, of course, we have no idea if he will be a lame duck – or lamer duck – until his residency fizzles out at the end of 2016. Time is running out on his legacy, that’s for sure …

  8. arcticredriver says...

    Thanks Andy, and thanks to your friend, Talking Dog, whose 9-11 related interviews I have found very interesting.

    I don’t think it lies within the power of the Guantanamo authorities to make sure a hunger striker doesn’t die.

    Long term fasting takes a toll on someone’s body. And the brutality of the force feeding also takes a toll. A couple of years ago didn’t a long term hunger striker develop an allergy to Ensure — the nutrient solution they used for most of the last 12 years?

    I think that a hunger striker whose hunger strike has eroded their health sufficiently that their death is obviously imminent can expect transfer — just so the USA doesn’t have to wear the shame of having a hunger striker die.

    I believe hunger strikers can die, unpredictably, when force-feedings go wrong. The accounts slipping out say some hunger strikers develop sudden hemmorages. The tubes could fill the captive’s lungs, not their stomachs.

    Further, I think the record shows that the doctors at Guantanamo supervise the force-feeding in a very negligent and distant manner — possibily so they can maintain plausible deniability.

    The accounts that are slipping out say that the medical technicians performing the force-feedings are playing cruel and painful games with the captives, where they don’t force-feed a captive with a dangerously low-weight, for several days, and then give them a super-force-feeding, where they are topped up with a week’s worth of nutrient solution, in a single day.

    I am afraid this is potentially lethal.

    The DoD published over one thousand pages of height and weight records in 2007. Andy went through those records, and wrote an article focusing on those captives whose weight dropped below 100 pounds. I also took a very [close look] at those records.

    I said the doctors were barely monitoring the staff performing the force-feeding? The standard operating procedures for medical staff said that all captives should be weighed once a month. The actual records show that while a few dozen captives came close to being monitored monthly, 90 percent of the captives had weights recorded quarterly, or intermittently or never had any weight monitoring at all.

    Worse, the weight records show that medical technicians routinely forged records, indicating they weighed captives — but actually didn’t bother. Let me be specific. The SOP said that captives whose weight fell dangerously low should have their weight monitored more frequently. And the records show that some hunger strikers’ weight was monitored on a daily basis. Well, some technicians recorded a captive’s weight with a precision of one tenth of a pound. In some cases the weight records show a captive weighing in with the same weight, with a precision of a tenth of pound, for several days. Then their weight will jump, a pound, or several pounds, and stay at that new weight, reported to a precision of a tenth of a pound, for several days. This is both evidence of fraud, by the junior medical technicians; and evidence of lack of supervision by the doctors. No one can weigh in at the same weight, to a precision of a tenth of a pound, even if their digestion has slowed to a crawl, so they have stopped having bowel movements. Their weight would still fluctuate due to their intake and outflow of fluids. Even if they didn’t micturate, they would still have water evaporating from their body with every breath they took.

    Another shocking thing those weight records revealed was the introduction of the use of the “restraint chair” during force-feedings. In January 2006 Guantanamo staff received authorization to strap captives into total immobility in these restraint chairs, for the duration of their feeding. We know this can be painful — even when used only for a brief period, to load up the captive with a normal dose of a liter of feeding solution, and for a brief period afterwards, to make sure the captive can’t induce vomiting until it is too late.

    The records from January 2006 show sudden incredible weight gains. Those sudden incredible weight gains were medically risky. These captives gained dozens of pounds per week. One captive gained almost 40 pounds in the first week the chair was introduced, going from approximately 100 pounds to 140 pounds.

    For the force-feeding chairs to have enabled the medical staff to force captives to consistently gain 3, 4, 5, 6 pounds, every single day, they could not have been siphoning in the standard dose of Ensure. The Ensure feeding solution comes in one litre cartons. It packs one Calorie per milliliter. A normal human requires 2,000 Calories a day to maintain their weight. So, two feedings per day, each of a single one litre carton is the normal dose.

    To lose a pound of weight through exercise someone needs to burn up 3600 Calories. That Olympic swimmer, who won half a dozen Gold medals had a high-intensity daily exercise regime that required him to consume 10,000. But he chose to do this, and he consumed those Calories through normal food, on his schedule.

    To force the captives to gain that much weight, that quickly they must have been forced to consume twice as many Calories as that Olympic swimmer.

    The captives who consistently gained five pounds a day? They may have been kept in the restraint chair for 12 or 16 hours a day, with their stomachs painfully distended as tight as a drum, as medical technicians siphoned in 20 litres or more of nutrient. For American readers who don’t grok litres, that is 5 and two thirds American gallons.

    This kind of massive force-feeding damages the victims’ other organs. In particular it damages the victims’ liver. We know that several of the long term hunger strikers, like al Ghazzawi and Sami al Hajj, developed serious liver disease in Guantanamo. Their lawyers feared they were infected with hepatitis due to recklessly unsanitary medical procedures. But I suspect it was due to reckless impromptu experimentation with force-feeding.

    Those who prepare pate de foie gras — liver paste — massively force-feed their ducks and geese first. This force-feeding forces their livers to swell with fat to several times their normal size. This force-feeding could kill these geese — except they are slaughtered first.

    Returning to today’s hunger strikers — I believe those accounts that medical staff gamble with occasional binges when they force-feed an entire week’s worth of nutrient into a frail captive in a single day, because the published record clearly shows they did so in January 2006.

    These ad hoc, unofficial experiments are not only very cruel, they are not methodical, or safe, and I am afraid they could lead to the death of a hunger striker at any time.

  9. Andy Worthington says...

    Thanks, arcticredriver, for your detailed analysis of the fraudulent weight records, which I know you have analyzed in detail over the years. It seems to me that you have done more work on this than anyone, and your thoughts on it are important.

    I hope others are paying attention, as I am, to your analysis of the weight fluctuations in the records, and also to what you so coherently describe as the impossible lack of weight fluctuations in other cases, I suspect that what this shows, in some cases, is that the figures were made up. In other cases, serious fluctuations in weight may not have been to do with force-feeding, but with guards pushing down while weighing prisoners, a process that Sami al-Haj described many years ago.

    For the current discrepancies in force-feeding, the key passage is from the recent declaration by Cortney Busch of Reprieve in the case of Abu Wa’el Dhiab. She wrote that Mr. Dhiab “reported what he described as a ‘vicious’ policy of permitting the detainees’ weight to yo-yo: over-feeding prisoners to the point of discomfort, suddenly ceasing the feeding, then resuming feedings if a prisoner loses consciousness on the block. This, he says, is even more unpleasant and dangerous than a consistent regime of feedings.”

    The weight records, btw, are available on a DOD FOIA page entitled “Other Detainee Related Documents,” available here, under the heading “Measurements of Heights and Weights of Individuals Detained by the Department of Defense at Guantanamo Bay, Cuba. Released March 16, 2007″:
    http://www.dod.mil/pubs/foi/operation_and_plans/Detainee/OtherDetaineeRelatedDocuments.html
    My analysis, which you refer to, is here: http://www.andyworthington.co.uk/wp-content/uploads/guantanamos-hidden-history-shocking-statistics-of-starvation.pdf
    And I introduced it here: http://www.andyworthington.co.uk/2009/06/10/guantanamos-hidden-history-shocking-statistics-of-starvation/

  10. freedetainees.org – Missing the Point on the Guantánamo Taliban Prisoner Swap and the Release of Bowe Bergdahl says...

    […] too, have reason to be upset about the release of the Taliban prisoners — men like Abu Wa’el Dhiab, the Syrian who is on a hunger strike and being force-fed despite being cleared for release. He and […]

  11. carmen trotta says...

    Andy and friends,
    Thanks for this discussion. Do you take questions in addition to comments? I’m trying to understand the legal mechanics. Perhaps you can clarify things a bit further for me.
    I was initially impressed by the fact that Judge Kessler could enjoin the military to stop force feeding the prisoner and to deliver, at a reasonable date, the video footage of the cell extractions and the forced feedings. She did so, and they obeyed. I agree with the comment of articredriver: Supposing that she actually possessed the power to permanently enjoin the military from force feeding prisoners, she should have. TD however responds that Kesslers ‘betters’ – by which I imagine he means ‘superiors’, those who could overrule her – have made it clear that the courts do not ‘possess’ these powers. Is TD being inexact? Is it perhaps the case that the circuit and Supreme Courts have refrained or failed to assert these powers? And if so, in so doing, have they created a legal precedent that could lead to their permanently surrendering those powers? Is this the “horrible jurisprudence” TD speaks of?
    So, as I understand the lay of the land from Kesslers point of view: She could have issued a permanent injunction which, in all probability, would have been immediately ‘stayed’ by the executive and then over turned by the Circuit Court. The Circuits rulings would create a legal precedent, further embedding the logic undermining a robust understanding of Habeas Corpus. Is it possible – even likely – that such strategic calculations led Kessler to ‘let the sleeping dog lie’?

    Thanks,
    Carmen

  12. Andy Worthington says...

    Hi Carmen,
    Great to hear from you, my friend. Questions are always welcome here, as much as comments.
    Unfortunately, I don’t know the specific answers to all your questions. I do know that the Talking Dog’s ironic reference to Judge Kessler’s “betters” is a reference to the self-declared powerlessness of the D.C. Circuit Court and the Supreme Court to order prisoners released, rather than to intervene to, for example, prevent force-feeding. I’m sure you’ve been following the story and know that, last summer, judges, including Judge Kessler, thought they were powerless to intervene regarding the treatment of the prisoners, but that in February the D.C. Circuit Court, in an important ruling, said that, in fact, the courts could intervene regarding the treatment of prisoners. I wrote about that here:
    As for Judge Kessler’s thoughts regarding the lifting of her temporary injunction, I took it at face value: that she worried that Dhiab might die if she didn’t lift the injunction, and that she didn’t want his death on her conscience. You may, however, be correct to infer that she might have thought about what her decision might mean if appealed, and that this also played a role.

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