It’s been well over three years since Linda Greenhouse, writing for the New York Times, attributed the Supreme Court’s refusal to take any new cases from Guantánamo to the Court’s “Gitmo fatigue.” And earlier this month, Professor Gerard Magliocca asserted (albeit without any evidence) that “nobody cares” about Guantánamo anymore, and that the left has “fallen silent” on the topic. Although I vehemently disagree with Professor Magliocca, I do believe that popular interest in Guantánamo has largely waned, and suspect that this is a result of some combination of (1) increasingly circular public debates over what to do with the remaining detainees; and (2) litigation that, at least for the moment, has focused on legal questions that are less immediately visible, accessible, or superficially interesting than what’s been true during prior time periods.

In this post, I aim to push back rather forcefully against this mindset, and to explain why two threads of the Guantánamo litigation–the long-running counsel-access dispute and the force-feeding developments documented by George Annas in his guest post yesterday–continue to be worthy of the most far-ranging public attention even separate from debates over long-term (and, perhaps, post-Afghanistan) detention authorities. And to help make the case, I devote a fair amount of time to educating readers on how things got to where we are today.

I. Background: The Relationship Between Counsel Access and Force-Feeding

In some ways, the most recent controversies may be traced to the September 2012 suicide of Adnan Latif, who overdosed on pain medications that, if reports are accurate, he may have been stockpiling in his underwear. In response, the government began far more aggressively searching the detainees for contraband–including inside the pages of their Qurans, which led many of the detainees to begin hunger strikes, in protest. These searches, in turn, apparently turned up evidence of certain additional contraband which, in its briefing in the D.C. Circuit, the government claimed “could be turned into weapons.”

Thus, in May 2013, the government began a policy of mandatory genital searches anytime a detainee was transported to and from another location (including for meetings with their lawyers)–even though no evidence has ever been publicly disclosed suggesting that any of the putative contraband had been provided by detainee counsel, or, for that matter, that any of the improvised weapons the government discovered were being hidden by detainees in their underwear. Because many of the detainees refused to consent to such searches, the new policy had the effect of making it impossible for those detainees to meet with their counsel. Meanwhile, with respect to those detainees who continued their hunger strikes to the point that they were in declining health, the government began a more aggressive force-feeding program that included the use of restraint chairs and of enteral (tube) feeding.

Some of those detainees have since objected to both the genital searches and the force feeding. The challenge to the former has centered on the claim that the searches interfere with the detainees’ right of access to counsel. The challenge to the latter claims that force-feeding is unlawful insofar as it is unnecessary and/or inhumane–that, even in cases where some force-feeding is medically necessary, it should be done in a manner that does not produce unnecessary pain and anguish on the part of the detainee. Thus, there have been two new fronts of non-“merits” litigation: (1) a specific challenge to the force-feeding procedures leveled by a number of hunger-striking detainees; and (2) a more general challenge to the effective denial of access to counsel produced by the genital search policy. Although these are two separate sets of legal claims, as the above description underscores, they are at least to some degree factually intertwined.

II. The Significance of Aamer (and, Perhaps, Hatim)

In the district court, the genital search challenges produced a pair of rulings from Judge Lamberth, about which I’ve written quite a bit previously. In a nutshell, Judge Lamberth held that the searches were invalid insofar as they interfered with the detainees’ right of access to counsel–suggesting, albeit not expressly holding, that such a right was constitutionally grounded (and therefore could not have been circumscribed by the jurisdiction-stripping provisions of the Military Commissions Act of 2006). But the government obtained a stay of Judge Lamberth’s decision pending its appeal, which was argued (as Hatim v. Obama)to a three-judge panel (Garland, C.J., and Henderson & Griffith, JJ.) on December 9, 2013. And although I’ve been very critical of the en banc D.C. Circuit for taking eight months (as of today) after oral argument to hand down its decision in the al-Bahlul military commission case, it’s also worth noting that this three-judge panel has taken almost six months (and counting) to resolve an appeal in a case in which the lower-court decision halting a controversial practice was stayed (thereby allowing that practice to continue).

Separate from its analytical complexity, part of why Hatim may be taking so long is because of the D.C. Circuit’s intervening February 11 decision in Aamer v. Obama–the first appeal in one of the genital search cases. Initially, the district court in Aamer had ruled that it lacked jurisdiction to entertain challenges to the force-feeding procedures. On appeal, the D.C. Circuit disagreed, holding that the Supreme Court’s 2008 decision in Boumediene v. Bush had restored habeas jurisdiction to its pre-2005 status quo, which included, according to Aamer, the ability of detainees to challenge the conditions of their confinement. Aamer thus cleared away the jurisdictional underbrush in both the force-feeding and counsel-access cases, leaving the D.C. Circuit to reach both sets of claims on their merits. (One thus wonders if the panel in Hatim was either waiting for Aamer, or had to start over after and in light of it.)

On the merits, Aamer ruled that the detainees had not yet made out a case for a preliminary injunction to enjoin their force-feeding. Judge Tatel rejected the detainees’ categorical opposition to force-feeding, noting that “the overwhelming majority of courts have concluded . . . that absent exceptional circumstances prison officials may force-feed a starving inmate actually facing the risk of death.” Tellingly, though, Judge Tatel went on to stress that:

It is conceivable that petitioners could establish that the government’s interest in preserving the lives of those detained at Guantanamo is somehow reduced, or demonstrate that the government has such complete control over Guantanamo detainees that hunger-striking inmates present no threat to order and security, or even show that there are “ready alternatives” to force-feeding that the government might employ to achieve these same legitimate interests. We leave it to the district court to decide in the first instance what procedures may be necessary to provide petitioners a “meaningful opportunity” to make this showing.

In addition, the D.C. Circuit did not reach the detainees’ separate argument–that “the government subjects detainees to such treatment before they are actually at risk”–because it had not been properly raised on appeal, and not because it was a loser on the merits. As Judge Tatel stressed, “Of course, petitioners may seek to press this claim—as well as other claims related to particular aspects of the force-feeding protocol employed at Guantanamo—before the district court.”

Aamer thus sent the force-feeding cases back to the district court for further development of the merits, and cleared the way for the panel in Hatim to reach the merits of the claim that the genital search policy interferes with the detainees’ (constitutional?) right of access to counsel. And although we’re still waiting for the decision in Hatim, it should follow that, whatever the panel ends up holding in that case will be quite significant not just for the future of the Guantánamo litigation, but for the relationship between habeas and access to counsel in all contexts. This is especially true if the panel ends up addressing, as it may feel compelled to, whether any such right of access to counsel comes only from the habeas statute, or is also compelled by the Suspension Clause itself.

III. The Three Kessler Orders

This brings us, finally, to the recent developments before D.D.C. Judge Kessler in one of the force-feeding cases on remand from the D.C. Circuit (the case of detainee Abu Dhiab). In a nutshell, there have now been three rulings of note from Judge Kessler:

  1. A May 16 temporary restraining order (TRO) halting “forcible cell extractions” (FCEs) and force-feeding at Guantánamo until a May 21 status conference.
  2. A May 22 order in which Judge Kessler refused to reissue the May 16 TRO after the status conference, because of the “Hobson’s choice” the government had forced upon her: “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.”
  3. A separate May 22 order demanding that the government produce 34 videotapes of FCEs and force-feeding of Dhiab, along with copies of all of its force-feeding protocols and Dhiab’s medical records, by early June, to allow Judge Kessler to fully resolve the merits of Dhiab’s claims.

Before getting lost in the procedural posture, it’s worth underscoring the detainees’ basic objection–not to force-feeding in general (Aamer forecloses that), but to the specific (and, allegedly, inhumane) ways in which some of the detainees are allegedly being subjected to force-feeding–through use of a restraint chair; through constant insertion and withdrawal of the feeding tubes (as opposed to leaving the tubes in, which is the customary medical practice); and through procedures performed in their cells, as opposed to under proper medical supervision in the base hospital. And for reasons that have not been made public (and which, in any event, might be difficult to fathom), the government has refused to broker a compromise during the pendency of this litigation, which appears to be the only reason why Judge Kessler refused to reissue the original TRO in her May 22 ruling.

Instead, the government’s argument in its briefs focuses on the proposition that, to establish a claim for relief, Dhiab must show “that his enteral feeding is being done with deliberate indifference to his health and well-being, and, so, would constitute an unconstitutional condition of confinement for a person held in a U.S. prison” under Estelle v. Gamble. In other words, the government’s position is that burden is on the plaintiff to show that the government is intentionally mistreating him–and the existence of less painful alternatives is not, by itself, sufficient to carry that burden. Dhiab argues, in contrast, that the relevant test comes from the Supreme Court’s decision in Turner v. Safley, which demands that government interference with the liberty of prisoners be tied to “legitimate penological objectives.” But if these measures are as grossly unnecessary as the detainees’ lawyers maintain (a factual question, to be sure), it’s difficult to understand what those objectives are–or why they can’t be met through far less intrusive restraints. (The government, on this point, suggests that “sometimes,” detainees are uncooperative, and so the less-intrusive restraints are thus “sometimes” ineffective. Even if true, it’s not clear why that would always support more aggressive measures.)

As in Hatim, then, the merits in Dhiab are still in the offing. And whatever Judge Kessler rules, it seems virtually certain that whoever ends up on the short end of her decision will appeal back to the D.C. Circuit (and from there, perhaps to the Supreme Court). But although the above procedural posture may seem technical, the underlying question is a fundamental question of constitutional doctrine: Can the government do whatever it wants to the Guantánamo detainees in the name of preserving their health and well-being absent a showing of “deliberate indifference” under Estelle, or must the government meet the higher Turner v. Safley burden and show that its measures are necessary to vindicate legitimate penological objectives–and that no less restrictive alternatives are available? Suffice it to say, which standard applies may well dictate the outcome…

IV. Why You Should Care

If you’re still reading, congratulations! I started this post by suggesting that my goal was to convince readers why they should still care about the Guantánamo litigation, especially the counsel access and force-feeding cases described in detail above. Now that I’ve explained how we got to where we are today, it’s left to make the normative case for why these disputes should be significant to those with no connection to this litigation. In my view, there are three reasons for caring:

  1. Verifying the government’s motives. One of the most remarkable features of both sets of cases described above is how unnecessary the challenged government’s policies appear to be. If Latif was able to kill himself by stockpiling medication in his underwear, there are obvious ways to prevent such an episode from recurring short of mandatory intrusive genital searches anytime a detainee is transported (visible verification of medicinal administration, for starters). And with regard to hunger strikes, it seems clear from Judge Kessler’s orders that the government believes it has no legal obligation to find the least-intrusive way to force-feed hunger-striking detainees. Indeed, the government’s unwillingness to compromise (the reasons for which are only part of a not-yet-public hearing transcript) gives rise to at least the appearance that its real goal is to end the hunger strikes by making the consequences as unpleasant as possible, as opposed to the more clearly legitimate goal of protecting the health of the detainees and the safety of those personnel overseeing their confinement. From outward appearances, at least, it seems that if base personnel were truly committed to humane treatment and meaningful judicial review, neither of these sets of disputes should ever have happened. And so the litigation matters, if for no other reason, because of the extent to which it will either (1) expose what may well be inappropriate motives on the part of administrative personnel at Guantánamo; or (2) illuminate the more legitimate justifications for the government’s hard-to-fathom conduct.
  2. Possibly inflicting unnecessary suffering. Closely related to the government’s apparent intransigence is the apparently unnecessary suffering that the government is inflicting upon the detainees. Thus, the genital searches force detainees who wish to meet with their lawyers to endure an arguably unnecessary affront to their personal (and religious) dignity, and the force-feeding subjects hunger-striking detainees not just to the unpleasantness of enteral feeding, but to the apparently unnecessary measures of being tied down in a restraint chair and having the tubes repeatedly inserted and withdrawn. Again, the critical question here is, or at least should be, necessity. Is it really the case that the government has no reasonable alternative means of vindicating their appropriate penological goals? If not, what explains why the government, at least from the detainees’ perspective, is so quick to endorse measures that at least appear to produce unnecessary suffering?
  3. Setting precedents outside of Guantánamo. In the “merits” cases concerning the legality of the detainees’ continuing confinement at Guantánamao, where the issue goes to the substantive scope of the AUMF and the procedural showing required to satisfy that standard, it’s easy enough to conclude that the emerging “law of Guantánamo” is sui generis, and unlikely to spillover into other contexts, where some of the decisions might well prove far more objectionable. I’ve written at length about previous Guantánamo decisions that are already spilling over into other contexts, but it should certainly follow that cases making law with regard to a detainee’s right of access to counsel and the appropriateness vel non of specific force-feeding protocols are not unique to Guantánamo–all the more so because, in both of these contexts, the courts have not relied upon any suggestion that, as non-citizens outside the territorial United States, the detainees are entitled to fewer legal protections than otherwise similarly situated U.S. persons. In short, whatever the courts end up ruling in these cases, they are going to make law that applies elsewhere–and so we should care for that reason, too.

Thus, whereas most popular attention around Guantánamo these days is focused on questions concerning the future of the AUMF, whether/when those who have been cleared for release will actually be transferred, and the fate of those detainees who remain, we would all do well to pay close heed to the ongoing litigation in the counsel access and force-feeding cases–both because of their potential impact on prisoners’ rights far afield of Guantánamo, and because of what they will tell us, for better or for worse, about the manner in which the government is treating those whom it continues to detain.