Dhiab v. Bush

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ : ABU WA’EL (JIHAD) DHIAB, : : Petitioner, : : v. : : BARACK H. OBAMA, et. al., : Civil Action No. 05-1457 (GK) : Respondents. : ______________________________:

ORDER

During a lengthy bench conference at the status hearing

held on May 21, 2014, the Court strongly suggested that the

Parties come to a compromise about the procedures used to

enterally feed Petitioner Dhiab during the pendency of his

Application for Preliminary Injunction. Mr. Dhiab’s physical

condition was swiftly deteriorating, in large part because he

was refusing food and/or water.

Mr. Dhiab has 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.

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. The Department of Defense refused to

make these compromises.

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.

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.”

Moreover, in an effort to ensure that any suffering by Mr.

Dhiab is not prolonged, the Court will issue a scheduling order

–2– tomorrow to facilitate the speedy exchange of discovery such

that the Court can reach the merits of Mr. Dhiab’s Application.

For all the reasons above, and based on the entire record

herein, it is hereby

ORDERED, that the Temporary Restraining Order in this case

will not be reissued.

/s/_________________________ May 22, 2014 Gladys Kessler United States District Judge

Copies to: attorneys on record via ECF

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