UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ABU WA'EL (JIHAD) DHIAB, Petitioner, 

### v. Civil Action 05-1457 (GK) BARACK H. OBAMA, 

### etal., Respondents. MEMORANDUM OPINION 

### On April 18, 2014, Petitioner Abu Wa'el (Jihad) Dhiab ("Dhiab" or "Petitioner") filed an Application for Preliminary Injunction and an Immediate Order for Disclosure of Protocols Forthwith. 1 

### [Dkt. No. 203.] On May 7, 2014, the Government ("the Government" or "Respondents") filed its Opposition [Dkt. No. 214], and onMay 12,2014, Petitionerfiled his Reply [Dkt. No. 215]. Thereafter, parties engaged in discovery and on June 20,2014, Petitioner filed a Motion for Further Discovery in Aid ofApplication for Preliminary Injunction [Dkt. No. 265]. Following a hearing on August 12, 2014, the Court granted in part and denied in part Petitioner's Motion and ordered the Parties to complete all discovery [Dkt. No. 304]. On October 6, 7, and 8, 2014, the Court held a Hearing on Petitioner's Application for Preliminary Injunction ("the Hearing"). On October 17,2014,the Parties filed Post-Hearing Briefs summarizing their positions in light ofthe evidence presented at the hearing [Dkt. Nos. 361, 362].

1 

### The portion of Petitioner's application that sough disclosure of the current Standard OperatingProcedures/Protocols directly addressing enteral feeding and/ortheuse ofarestraint chair at Guantanamo Bay was resolved by the Court's Order ofMay 23,2014 [Dkt. No. 225].Upon consideration ofthe Application, the Opposition, the Response, Post-Hearing Briefs, testimony delivered by expert witnesses, representations made bythe parties atthe OctoberHearing including classified materials heard and viewed in camera, and the entire record herein, and for the
reasons stated below, Petitioner's Application for Preliminary Injunction [Dkt. No. 203] must be denied. I. BACKGROUND On July 22, 2005, Petitioner filed a Petition for Habeas Corpus [Dkt. No. 1]. In 2009, Petitionerwas clearedforreleaseby President Obama 'sGuantanamo ReviewTaskForce [Dkt. Nos. 152, 172]. After five years, and as ofthis writing, he still remains held at the United States Naval Station at Guantanamo Bay, Cuba. To protest his continued confinement, Mr. Dhiab, along with other detainees, has intermittentlyengaged inahunger strike since MarchorApril of2013. OnJune 30, 2013, Petitioner filed an Application for a Preliminary Injunction ("2013 Application") [Dkt. No. 175]. In the 2013 Application, Petitioner sought to enjoin the Government from "subjecting petitioners to forcefeeding ofanykind, includingforcible nasogastrictube feeding, and from administeringmedications related to force-feeding without the petitioners' consent." 2013 Application at 1. On July 8, 2013, the Court denied Petitioner's Application for lack ofjurisdiction. Memorandum Order [Dkt. No. 183] and onAugust 29,2013, the Court denied Petitioner's Motion for Reconsideration ofthat Memorandum Order [Dkt. No. 192].

-2-OnFebruary 11, 2014, our CourtofAppeals affirmedthe denial, butfound thatthe Courtdid, in fact, havejurisdiction over Petitioner's challenge to the conditions ofhis confinement. Aamer

v. Obama, 742 F.3d 1023, 1028-306 (D.C. Cir. 2014). 2 OnApril18, 2014, Petitionerfiled his secondApplication for PreliminaryInjunction ("20 14 Application"). [Dkt. Nos. 203, 204 (sealed); 226-1 (unsealed exhibit)]. The Courtthen set a Motion Hearing on the 2014 Application for May 21, 2014. That hearing was converted to a Status Conference in order to resolve various discovery disputes that had arisen [Dkt. No. 221]. After the Status Conference, the Court ordered Respondents to produce certain items to Petitioner, including medical records and videotapes recording Mr. Dhiab's Forcible Cell Extractions and subsequent enteral feedings [Dkt. No. 225]. 

### II. CURRENT STATUS OF PETITIONER'S POSITION Petitioner no longer seeks to enjoin all force-feeding; rather, he seeks to enjoin several practices and protocols allegedly involved in the force-feeding process. See Proposed Order [Dkt. No. 203-10]; Statement of Claims Asserted and Relief Requested [Dkt. No. 304]. The list of practices Petitionercontestshas changed significantly sincehe initially filed his SecondApplication for a Preliminary Injunction onApril 28, 2014. OnAugust 14, 2014, in orderto clarify the scope of Petitioner's challenge, the Court ordered Petitionerto submit a briefstatement ofthe claimspursued and reliefsought under his Application. [Dkt. No. 304V

2 In Aamer, the Court ofAppeals consolidated Mr. Dhiab's appeal with those oftwo other Guantanamo Bay detainees: Ahmed Belbacha and Shaker Aamer. 3 In additionto thepractices citedinhis StatementofClaims Asserted andReliefRequested, Petitioner initially sought to enjoin "genital searches in connection with enteral feeding[,]" the use ofenteral feeding more than once per day, the use offeeding tubes larger than size 10 French, and (continued
...) -3-OnAugust 18, 2014, Petitioner filed his Statement clarifying his objection to the following practices: Use of Forcible Cell Extraction or a Five Point Restraint Chair to transport Mr. Dhiab to or from force-feedings when he is willing to go compliantly; Denial ofthe use ofeither a wheelchair or crutches to go to and from force-feedings; Use ofthe Five Point Restraint Chair during force-feedings; Insertion and withdrawal ofthe nasogastric feeding tube on a daily or twice-daily basis instead ofleaving the tube in place between feedings; 4 Vesting senior, non-medical militarypersonnel,ratherthanphysicians, withthe final authority to determine whether detainees are force-fed; and Force feeding detainees before they are in imminent risk of death or great bodily injury [Dkt. No. 307V However, by the time ofthe hearing itself, Petitioner's requests had narrowed significantly and the Government had taken several positive actions which responded to his complaints. Those changes were: 

## Y
..continued) treatment intended to induce vomiting or defecation during the enteral-feeding process. See Pet'r's Mot. for Prelim. lnj. [Dkt. No. 203]; Proposed Order [Dkt. No. 203-10]. Because Petitioner did not raise these issues in his Statement of Claims Asserted and ReliefRequested [Dkt. No. 307], the Court does not reach them.

4 In his Statement ofClaims Asserted, Petitioner did not specifically raise the practice of using auscultation, see infra. pp. 12-13, to confirm nasogatric tube placement. However, because Petitioner raised the issue in his April 2014 Application for Preliminary Injunction, presented evidence onthe practice atthe Hearing, and bothparties addressedthepractice intheirPost-Hearing Briefs, the Court will reach that issue. 5 In his Statement ofClaims Asserted, Petitioner also objected to the use of "rapid bolus force-feeding." However, Petitioner did not discuss the issue in his Post-Hearing Brief, nor did he present evidence onthe subject atthe Hearing. Consequently, the Courtneed not address thatissue. -4-First, Mr. Dhiab made 

### it clear that he did not want to die. Second, he agreed to comply with the force-feeding procedure ifhe could use a wheelchair to get to the room in which feedings were given. Third, the Government entered a Medical Order allowing Petitioner to use a wheelchair to go for his enteral feedings that, the Government represents, will remain in effect until September 1, 2015. Resp'ts' Ex. 33 at 3; Hr'g Tr. 52, Oct. 8, 2014. Fourth, the Government stopped using olive oil for the insertion ofnasogastric tubes and changed to a

### diff~rent lubricant. 6 Fifth, the Government represented that there would be no Forcible Cell Extraction as long

as Mr. Dhiab continued to walk from his cell to the wheelchair only a few steps away, used the wheelchairto go to theroominwhichthe feedings were given, andwas compliantwiththe feedings. In short, many ofthe significant requests he had made in his Application were no longer subject to disagreement. The claims which now remain in dispute are: First, whetherthe nasogastrictube shouldbeleft inplace for atleastthree days rather than be inserted twice a day; Second, whether the method of auscultation should not be used to ensure that the nasogastric tube hasbeenproperlyinserted into Mr. Dhiab's stomachratherthanhis lungs; Third, whether the Five Point Restraint Chair should not be used during forcefeeding; Fourth, whether current protocols lead to force-feeding before there is an immanent risk ofdeath or serious physical injury; and

6 Notably, Petitioner did notraise his challenge to the use ofolive oil as a lubricantuntil the Hearing itself, long after the Government had ceasedthe practice. Hr'g' Tr. 1.0, Oct. 6, 2014; Pet'r's Br. at 19-20. -5-Fifth, whether non-medical military personnel should notbe the final authority over whether detainees should be force fed. 

### III. LEGAL ANALYSIS A. Subject Matter Jurisdiction Our Court of Appeals has recently acknowledged that "challenges to conditions of confinement [ofdetainees at Guantanamo Bay] can**prop~rly** 'be raised in a federal habeas petition under [28 U.S.C.] section 2241 [.]" Hatim v. Obama, 760 F.3d 54,58 (D.C. Cir. 2014) (reh'g denied (D.C. Cir. No.13-5218)) (quotingAamer, 742F.3dat 1030, 1038). Accordingly, itisnowclearthat the Court hasjurisdiction to hear Petitioner's claims. ld. 7 

### B. Requirements for Granting a Preliminary Injunction It has long been established that preliminary injunctions are "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiffis entitled to such relief." In re Nayy Chaplaincy, 697 F.3d 1171, 1178 (D.C. Cir. 2012) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)); see also Chaplaincy ofFull Gospel Churches v. England, 454 F.3d 290,

7 In its Opposition to Petitioner's Application for a Preliminary Injunction, filed months beforethe Hearing, the Government arguedthatPetitioner did nothave standingtopursuehis claims because, 

### inter alia, he was not at that time approved for enteral feeding. Resp'ts' Opp'n at 20. Thus, the Government argued, Mr. Dhiab "cannot claim any current actual or imminent injury traceable to Respondents' enteral feeding policies." ld. Precisely one week after the Government made that statement to the Court, it resumed Mr. Dhiab's force-feedings. Resp'ts' Ex. 34 at 6. The Government also arguedthatMr. Dhiablacked standingbecausehe didnot claimtohave ever been subjected to many ofthe practices he then sought to challenge. Resp'ts' Opp'n at 20. As already noted, the scope ofMr. Dhiab's claims has narrowed since the submission ofRespondents' Opposition. See Statement of Claims Asserted and Relief Requested [Dkt. No. 307]. The government does not repeat its standing argument in its Post-Hearing Brief. The Court is satisfied that Petitioner has adequately put forth the facts necessary to maintain the claims he pursues at this stage. See Lujan v. Defenders ofWildlife, 504 U.S. 555, 561 (1992) (discussing factual showing required to demonstrate standing in pleadings and at summaryjudgement). -6-297 (D.C. Cir. 2006) (noting that preliminary injunctionis an "'extraordinary remedy that should
ne granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion"') (quoting Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004))). A party seeking a preliminary injunction must show: (1) a substantial likelihood ofsuccess
on the merits; (2) that it would suffer irreparable injury ifthe injunction were not granted; (3) that
an injunction would not substantially injure other interested parties; and (4) that the public interest wouldbe furthered bythe injunction. ChaplaincyofFullGospel Churchesv. England, 454 F.3d290, 297 (D.C. Cir. 2006). The "first and most important factor" is whether Petitioner has "established a likelihood of
success on the merits." Aamer, 742 F.3d at 1038. "[I]t remains an open question [in this Circuit] whetherthe 'likelihoodofsuccess' factor is 'anindependent, free-standing requirement,' orwhether, in cases where the otherthree factors strongly favor issuing an injunction, a plaintiffneed onlyraise
a 'serious legal question' onthe merits." Id. at 1043-44 (quoting Sherley v. Sebelius, 644 F.3d 388, 393, 398 (D.C. Cir. 2011)); see also Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009) (discussing but not deciding whether Winter, 555 U.S. at 7 abrogated the "sliding scale" standard, which, following "an unusually strong showing on one ofthe factors," permitted movants to make a lesser showing on other factors). It is clear, however, that "failure to show any irreparable harm is
... grounds for refusing to issue a preliminary injunction even ifthe otherthree factors entering the calculus merit suchrelief." Chaplaincy, 454 F.3d at 297 (internal citation omitted). Our Court of Appeals has "set a high standard for irreparableinjury," requiring that itbe "bothcertain and great" andthatthe allegedharm is "actual and not theoretical." Id. at 297 (internal quotation marks and citation omitted).
-7-Finally, this Court is well aware that the courts "traditionally have been reluctant to intrude upon the authority ofthe Executive in military and national security affairs." Munafv. Geren, 553 U.S. 674, 689 (2008) (quoting Department ofNayy v. Egan, 484 U.S. 518, 530 (1988)). Courts "give great deference to the professionaljudgment ofmilitary authorities concerning the relative importance ofa particularmilitary interest." Al-Adahi v. Obama, 596 F. Supp. 2d 111, 116 (D.D.C. 2009) (quoting Winter, 555 U.S. at 24). 

### C. Standard ofProof In Estelle v. Gamble, 429 U.S. 97, 104-106 (1976), the Supreme Courtruledthatinassessing whether the government has met its obligation to provide medical care for those whom it incarcerates, "aprisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Id. at 105. Estelle requires prisoners challenging the adequacy ofmedical care to show "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Id. at 106. The medical need must be "objectively, sufficiently serious[,]" andthe official denying caremusthave a "sufficientlyculpable state ofmind" to demonstrate "deliberateindifferenceto inmatehealthor safety." Farmerv. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks omitted). Petitioner argues that it is Turner v. Safley, 482 U.S. 78, 89 (1987), notEstelle, that applies. Turner established the standard for constitutional challenges to prison regulations and. held that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid ifit is reasonably related to legitimate penological interests." Id. (emphasis added). However, Petitioner has failed to identify any constitutional right or rights offended by the challenged practices. Thus, in effect, he is challenging the day to day procedures that the medical staffat Guantanamo Bay use -8-to carry out their mission, ratherthan making a constitutional challenge as Turner requires. Indeed, Petitioner has failed to offer any legal authority where a court has relied on the Turner analysis to question the procedures used to force-feed hunger-striking prisoners. The Government cites
numerous cases that rely on Estelle. Resp'ts' Br. at 4-7. Petitioneralso argues thatthe veryrecentHatim case from ourCourt ofAppeals supports his position, but that is simply not accurate. Hatim, 760 F.3d at 54. Hatim had absolutely nothing to do withmedical care ofprisoners, and is distinguishable onthatbasis alone. Id. Moreover, since the petitioner in that case was making the requisite constitutional challenge under Turner

-- claiming violation ofhis Sixth Amendmentright to have access to counsel

-- the Court did not even mention Estelle or the "deliberate indifference" standard. For these reasons, the Court concludes that the appropriate standard to be applied is that enunciated in Estelle v. Gamble and will now turn to the merits ofPetitioner's Motion. 

### IV. THE MERITS OF PETITIONER'S REMAINING CLAIMS 

### A. Insertion ofthe Nasogastric Tube Petitioner challenges the Government's practice ofinserting and removing the nasogastric tube eachtime he is force-fed. He argues that daily reinsertion ofthe tube causes him needless pain, creates the possibility ofinfection, and increases the risk that the tube will be placed into his lung rather than his stomach. Pet'r's Br. at 22 (citing Pet'r's Ex. 25**at~~** 3(d), 8(a)). At one point, Petitioner cites medical literature andhis experts' testimony, claimingthatnasogastrictubes maybe left inplace for as long as four weeks without harm. Pet'r's Br. at 23 (citing Pet'r'sEx. 32, Hr'g Tr. 61, Oct. 6, 2014; Hr'gTr. 50, Oct. 7, 2014). He requests that, atthe very least, the tube be left in for three days. Hr'g Tr. 12, Oct. 6, 2014. 

### -9-In opposing Petitioner'sposition, the Governmentrelies onthe affidavit ofa SeniorMedical Officer at Guantanamo Bay and medical literature to establish that removal ofthe nasogastric tube after each feeding is common in detention settings. Resp'ts' Ex. 2**at~** 24; Resp'ts' Ex. 27 at 133;
see also White v. Suneja, 2013 WL 1144466 at *3 (S.D. Ill. Mar. 19, 2013) ("[D]aily feeding tube changes are common practice for inmates who are otherwise able to dislodge their own tubes."). Contrary to the testimony ofPetitioner's expert, affidavits from the military medical officers assert thatthe risk ofinfection decreases, rather than increases, with daily removal. Resp'ts' Ex. 2**at~** 24; Resp'ts' Ex. 4 at 2-4; Resp'ts' Ex. 13 at 2-3. The GovefQITI.ent also persuasively detailedthe complicationsthathadresultedfrom allowing hunger strikers at Guantanamo Bay to keep their nasogastric tubes in place between feedings, including use ofthe tubes to purge recently force fed nutrients, ear, nose, and throat problems, and manipulation and destruction ofthe feeding tubes. Resp'ts' Ex. 10**at~** 18; Resp'ts' Ex. 11**at~** 12. The Government's Medical Officers stated that tube removal after each enteral feeding reduces the risk ofinfection inherent in keeping a foreign object inplace in the body. Resp'ts' Ex. 2**at~** 24; Ex. 4 at 2-4; Ex. 13 at 2-3. In 2005, when the medical staffwas managing a large scale hunger strike, the nasogastric tubes were kept in place for longer periods oftime. See Resp'ts' Ex. 11 at 3-5, 8, 12; Ex. 13 at 3. That policy led to increased incidence of security breaches and violence, including attacks onthe medical staffat Guantanamo Bay, and was ultimately changed. Resp'ts' Ex. 9 at 4-5, 8-9; Ex. 11 at 15-16. See Resp'ts' Ex. 4 at 4; Ex. 13 at 13. Indeed, one detainee bit his feeding tube inhalfwhich resulted in endoscopic removal ofthe portion still in his stomach. Moreover, the length oftube that would have to remain inplace for the longer period of time requested by Petitioner would be sufficient for a detainee to asphyxiate himself or other -10-detainees. See Resp'ts' Ex. 4 at 4; Ex. 13 at 3. That policy led to increased incidences ofsecurity incidents andviolence, including attacks onthe medical staffat Guantanamo Bay andwas ultimately changed. See Resp'ts' Ex. 9 at 4-5, 8-9; Ex. 11 at 15-16. See Resp'ts' Ex. 4 at 4; Ex. 13 at 3. One ofthe Petitioner's own experts, Dr. Crosby, admitted inhertestimonythat ifa detainee
was psychotic, combative, suicidal, or generally causing riskto himselforothers, removing the tube between feedings would be appropriate and safer. Hr'g Tr. 61, Oct. 6, 2014. Finally, the experience ofPetitioner's experts was limited to inserting nasogastric tubes in compliantpatients in a traditional hospital setting. In such an accommodating setting, they testified that tubes may safely remain in place for a longer period oftime ifmedically appropriate. Their testimony denying that the insertion and removal ofthe tube between feedings is appropriate in the context oftreating hunger striking detainees was unpersuasive. As to the existence ofpain, the evidence produced at the Hearing regarding pain was very mixed. The Government produced highly credible evidence that enteral feeding is rarely painful. Resp'ts' Ex. 4 at 3, 6-7; Resp'ts' Ex. 13 at 2-4; Resp'ts' Ex. 26 at 7. 8 Indeed, Petitioner's experts did not disagree. Hr'g Tr. 83-89, Oct. 6, 2014; Hr'g Tr. 54, Oct. 7, 2014. Furthermore, there is evidence in the record, including Mr. Dhiab's medical chart, that he often tolerates the procedure without complaints ofpain or significant discomfort.**See~,** Resp'ts' Ex. 5**at~** 12; Resp'ts' Ex. 34 at 1-13. There are also entries in the medical records that he has complained ofpain and nasal bleedingbecause ofthe tube insertions. Pet'r'sEx. PX050 at 224, 248. Yetthese isolated incidents
are notenoughto showthatthe practice ofdaily insertionrises to the level ofdeliberate indifference.

8 The current Senior Medical Officer stated in an affidavit that when he began his stint at Guantanamo Bay, he personally subjected himselfto the insertion procedures and did not find it painful. See Resp'ts' Ex. 4 at 3, 6-7. -11-Forthe reasons stated, the Court concludes that Petitioner has failed to show any deliberate indifference onthe Government'spart as to the insertion and withdrawal ofthenasogastrictube, and has failed to show that continued daily insertion would lead to irreparable harm. B. Use ofAuscultation Petitioner criticizes the use ofauscultation, a procedure to ensure that the nasogastric tube is properly pushed into the stomach, rather than the lungs. Auscultation involves pushing a small amount ofairthroughthe nasogastric tube while medical stafflistenfor bubbles with a stethoscope. The sound ofbubbles indicates placement in the stomach rather than the lungs. During placement, medical staff also injects small amounts of water into the feeding tube so that if it has been misplaced into the lungs instead ofthe stomach, the waterwilltrigger a coughand alertmedical staff to the misplacement. Petitioner argues, through the testimony of his experts, that an x-ray would be far more reliable to ensure that the tube hadnot been misplaced. Pet'r's Br. at 26-27 (citing Hr'g. Tr. 49-50, 66 (Oct. 7, 2014)). The Government responds that daily or twice daily x-rays would expose Mr. Dhiab to unsafe levels ofradiation. Petitioner's answer is to leave·the nasogastric tube inplace for several weeks, obviating the risk offrequent x-rays. The Government also provides evidence that auscultation is an acceptable method for confirming nasogastric tube placement. Resp'ts' Ex. 22 at 260; Resp'ts' Ex. 24 at 1-2; Resp'ts' Ex. 26 at 12; Resp'ts' Ex. 27 at 132. Petitioner's expert witness contended that while there had once been disagreement among the medical communityasto the appropriateness ofauscultation, the issuehadbeenresolved against that procedure. Hr'g Tr. 66, Oct. 7, 2014. However, the Government presented evidence from respected medical authorities, including children's hospitals, recommending use ofauscultation as -12-a methodto confirmtheproperplacementofnasogastric tubes. See Resp'ts' Ex. 22 at 260; Resp'ts' Ex. 24 at 1-2; Resp'ts' Ex. 25 at 1; Resp'ts' Ex. 26 at 12; Resp'ts' Ex. 27 at 132. Petitioner's expert, Dr. Myles, in discussing his objections to use ofauscultation, also never mentioned the additional water test that medical staffat Guantanamo Bay use to confirm the proper placement ofthe tube. It is true that the immediate past SMO has admitted that "auscultation is not the preferred method in the medical community," and "the use ofa chest x-ray ... is the standard in the medical community." Resp'ts' Ex. 2A**at~** 23; see also Hr'gTr. 66, Oct. 7, 2014). However, hejustifiedthe
use ofthe auscultation instead ofx-rays because the latter "presents a risk to patients inthe form of exposure to radiation, which would not be tenable for long term enteral feeding patients at Guantanamo who are enterally fed oneto two times daily over aperiod ofmanyyears." Resp'ts' Ex. 2A**at~** 23. Given the problems that Guantanamo Bay staffhave been presented with in terms of leaving the nasogastric tube in for longer periods oftime, the fact that medical staffhas chosen to insert the tube twice a day makes it impossible to use a chest x-ray which, it must be remembered, Dr. Myles was recommending inthe compliant civilian medical community, not within the context ofdetainees at Guantanamo Bay. For these reasons, the Court cannot find the staffat Guantanamo Bay exhibited deliberate indifference inusing the auscultationprocedureto protect detainees from improperplacement ofthe nasogastric tube. 

### C. Use ofFive Point Restraint Chair Use oftheFive PointRestraint Chairis standard operatingprocedure at Guantanamo Bayfor all enteral feedings. Resp'ts' Ex. 19A at 38-66. Mr. Dhiab, who suffers back pain from a long-ago automobile accident, complains that the Five Point Restraint Chair severely worsens that pain, and -13-thathe wants to be fed while being restrained with only a single-pointrestraint onhis wrist or ankle. Pet's Ex. 50 at 250; Statement ofClaims [Dkt. No. 307]. The Government rests its use ofthe Five Point Restraint Chair on a number ofreasons: (1) to properlyposition and stabilize detainees during insertion ofthe nasogastric tube; (2) to ensurethe proper amount offood is fed to detainees and not vomited during or immediately after the forcefeeding; and (3) to keep the guard staff, as well as the medical staff, safe from physical retaliation. Resp'ts' Ex. 2 at ,-r 30; Resp'ts' Ex. 6 at ,-r,-rl2-13; Resp'ts' Ex. 8 at 2. The Government contends that the Restraint Chair is ergonomically designed, that the seat and back are padded, that the restraint straps secure detainees safely, and that Mr. Dhiab remains in the restraint chair only during the period necessary for his enteral feeding. While the duration ofa feeding varies, 9 the Court notes that there are times when Mr. Dhiab's enteral feeding took close to two hours because he was talking with other detainees who are being fed. See Hr'g Tr. 23, Oct. 

### 6, 2014. The Governmentjustifies its use ofthe Restraint Chair by noting that inthe past, there have been attacks on both medical and guard staffduring use ofthe one-point Restraint Chair Mr. Dhiab requests. In particular, Mr. Dhiab himselfhas a history ofviolent and disruptive behavior. The Government states that since Aprill, 2014, Mr. Dhiab has engaged in numerous physical assaults, threats ofmurder, throwing feces and vomit at guards, and physically striking and kicking medical and guard staff. See Resp'ts' Ex. 14 at ,-r 4 and Resp'ts' Ex. 1 at 274, 879.

9 The time for his feedings varies fromjust a few minutes to over two hours. Resp'ts' Ex. 34. -14-Mr. Dhiab asks that his enteral feedings take place in the camp's "media space" because, since 20 13, six other, hunger-striking detainees havebeenre.ceiving theirforce-feedings inthat area, using only a One Point Restraint Chair. As to them, the Government explained that it had modified the force-feeding protocol for them in particular in an effort to encourage them to improve their eating habits and overall health since they had been part ofa long-term, non-religious fasting since 2007 and were fully compliant with the feedings. Resp'ts' Ex. 2 at 

### ,-r 30; Resp'ts' Ex. 6 at 

### ,-r 14 Resp'ts' Ex. 8 at 2. This Court has been asked before to evaluate the propriety ofthe Government's Restraint Chair policy. See Al-Adahi v. Obama, 596 F. Supp. 2d 111 (D.D.C. 2009). As the Court noted in Al-Adahi, "[r]esolution ofthis issue requires the exercise ofpenal and medical discretion by staff with the appropriate expertise, and is precisely the type ofquestion that federal courts, lacking that expertise, leave to the discretion ofthose who do possess such expertise." Id. at 122. Furthermore, the Government has provided evidence that in 2005, it did consider and experiment with lessrestrictive options, but discontinued them because of instances ofresistance and assaults against staff. Resp'ts' Ex. 9 at 

### ,-r,-r 4-5, 8-9. While the Court has no doubt that at times Mr. Dhiab has found the chair to be extremely uncomfortable, there is simplyno evidencethatthe GovernmentusestheFivePointRestraintChair-- which is used for all hunger-striking detainees--in orderto deliberately cause himpainor suffering. For all these reasons, the Court concludes that Petitioner has not submitted sufficient evidence to demonstrate deliberate indifference on the part ofthe Government.

-15-

### D. Final Authority to Allow Forced-Feeding Petitioner claims that the Government inappropriately vests non-medical officials with the right to determine whether a particular detainee should be force-fed. Pet'r's Br. at 27 (citing Resp. Ex. 19A at 38-4(a) (SOP No. 38, section 38-4(a): "Commander, Joint Task Force is the approval authority for enteral feeding of detainees.")). He argues that only a physician should have the authority to determine whether force-feeding is appropriate, although he does not contend that he has been force-fed any time without a physician's recommendation. 10 Tothe extentPetitionerbelievesthe standard operatingprocedures ("SOPs") at Guantanamo Bayputhim at risk ofbeing force-fed without a prior determination ofmedical necessity, he simply misreads the regulations governing enteral feeding. Itis correct that under SOP 1, the JTF-GTMO Commander'sapproval is anecessaryfinal stepbefore a detaineemaybe approvedfor force-feeding. However, the recommendation for enteral feeding must originate with a physician or physician's assistant and must be approved by the Senior Medical Officer before it even reaches the JTF Commander. Resp'ts' Ex. 17A**at~** III. L. DOD Instruction 231 0.08E, which applies to the care of detainees at all DOD facilities, confirms the necessity of a medical determination: "[i]n the case of a hunger strike
... medical treatment may be directed without the consent ofthe detainee to prevent death or serious harm
... such action must be based on a medical determination that immediate treatment or intervention is necessary to. prevent death or serious harm." Resp'ts' Ex. 21 at 5 (emphasis added). Finally, SOP 1permits medical officersto "perform
... emergentactions deemedmedicallynecessaryto preserve

10 Petitioner produced no testimony that any force-feeding has ever taken place without medical approval. -16-life andhealth"withoutthe Commander'sapproval, thus, avoidingthepossibilitythattheprocedural hurdle ofthe JTF Commander's approval could unreasonably delay emergency care. Resp'ts' Ex. 17**at~** II. D. Petitioner's claim rests. upon the mistaken beliefthat current Guantanamo Bay protocols permit force-feeding without a medical officer's approval. Accordingly, it is perfectly clear that Petitioner has failed to demonstrate a likelihood ofsuccess on the merits. 

### E. Forced-Feeding in the Absence ofImminent Risk The parties agree that JFT-GTMO officials cannot lawfully force-feed a detainee unless he is in imminentrisk ofdeath or great bodily injury. Pet'r's Br. at 5 (citing Aamer, 742 F.2d at 1041); Resp'ts' Br. at 8 (citing DOD Instruction 2310.08E). Petitioner argues, however, that the SOPs in force at Guantanamo Bay, as written, authorize the force-feeding of detainees who are not at imminentrisk. He believes thathe has been unlawfully force-fed whenhe was not inimminentrisk ofdeath or great bodily injury. Petitioner relies on SOP No. 1, which, according to him, "states that the detainee may be force-fed ifany ofthe following conditions exist: (1) heweighs less than 85 percentofhis so-called 'ideal body weight' (IBW), (2) he has lost more than a specified percentage of his 'usual body weight,' (3) hehas sustained weight loss 'associatedwithevidence ofdeleterious healtheffects,' (4) he has a 'pre-existing co-morbidity' such as high blood pressure, or (5) he has had a 'prolonged period ofweight loss."' Pet'r's Br. at 6 (citing Pet'r's Ex. 7 at 2-3). However, Petitioner is not correct that a finding that a detainee weighs less than 85 percent ofhis so called "ideal body weight" automatically triggers the imposition offorced-feeding. The criteria Petitioner cites are merely definitions of"clinically significant weight loss." Pet'r's Ex. 7 at
-17-•,


### 2-5. A finding of "clinically significant weight loss" does not lead inexorably to force-feeding; rather, such a finding simply triggers further medical review. Id. SOP 1 makes clear that whether "continued fasting results in a threat to [a detainee's life] or seriouslyjeopardizes his health" does not tum on a rigid consideration ofweight alone. Id. Rather, weight is only a threshold issue in making a final determination. 11 

### Petitioner also challenges the Government's May 13, 2014 decision to resume his force-feedings. He believesthatthe medical determination leading to his ongoing force-feeding was made solely on the basis ofhis body weight. Pet'r's Br. at 9-12. Moreover, according to Petitioner, the Government relied on faulty body-weight data. Id. Finally, Petitioner contends that the Government's body-weight-based decision was irrational because his weight was nearly the same when the Government stopped force-feeding him in October of 2013 (156.6 pounds) as when it resumed his force-feedings in May of2014 (155.5 pounds). Id. at 12. An 

### affidavit of the Senior Medical Officer (SMO) who made the May 13, 2014, determinationthattheresumption offorce-feeding was medicallyappropriate statedthatMr. Dhiab's weight wasjust one ofmany factors considered. FromApril3, 2014, to May 13,2014, Mr. Dhiab's weight declinedbyover eightpounds; he had not eaten substantial amounts offood for over20 days; he was showingphysicalmanifestations ofclinicalmalnutritioninthe form ofmuscle weakness; and he had made it clear that he would continue to refuse to eat and hydrate voluntarily. Resp'ts' Ex. 5 at**~** 

### 6. Making it even more difficult for the staff to make an accurate determination of his situation, Mr. Dhiab "was refusing all diagnostic examinations." Id.

11 

### DOD Instruction 2310.08E also confirms that "a medical determination that immediate treatment or intervention is necessary to prevent death or serious harm" is required to begin force-feeding. Resp'ts' Ex. 21 at 5. -18-

### Petitioner argues that the Government is wrongly using 85 percent ofideal body weight as
a threshold for force-feeding. This argument is not convincing. Petitioner's expert witnesses presented their opinions regarding the appropriateness ofusing the percentage of 85 percent as a threshold. While that learned testimony was very interesting, it did not establish that the Government's reliance on the 85 percent number as a threshold indicator was erroneous. Nor was it proven in any way that by using that percentage, the Government was deliberately showing indifferenceto Petitioner'sphysical condition. Quitethe contrary. The medical staff was monitoring Mr. Dhiab closely during the period in question, even though Mr. Dhiab was refusing to cooperate with medical staff, was refusing lab tests and examinations, and was showing clinical signs of malnutrition. Even Dr. Crosby, one of Petitioner's expert witnesses, described his medical condition as "very complicated" and a "very complex case, even for senior doctors." See Hr'g Tr. 4, Oct. 6, 2014. Forthese reasons, the Court concludes that Petitioner has not submitted sufficient evidence to demonstrate deliberate indifference on the part ofthe Government. 

### V. CONCLUSION For the reasons stated above, the Court concludes that the Petitioner's Application for a Preliminary Injunction must be denied 

### because he has failed to satisfythe "deliberate indifference" standard ofproof. As the Court ofAppeals stated in Greater New Orleans Fair Hous. Action Ctr.
v. HUD, 639 F.3d 1078, 1088 (D.C. Cir. 2011), "when a plaintiffhas not shown a likelihood of
success onthe merits, we need not considerthe otherfactors [requiredfor apreliminaryinjunction]."

-19-Havingreachedthis conclusion, the Court feels constrainedto make certaincomments about the Government'streatmentofMr. Dhiab. Itis veryhardto understand whythe Governmentrefused to give Mr. Dhiab access to the wheelchair and/or crutches that he needed in order to walk to the
room for enteral feedings. 12 Had that simple step been taken, numerous painful and humiliating forced cell extractions couldhave beenavoided. While the Governmentultimately--but only a short time before the hearing--allowed Mr. Dhiab to use the wheelchair, thereby inducing him to comply with the force-feeding as he had agreed to do, common sense and compassion should have dictated
a much earlier result. By the same token, the Government refused Mr. Dhiab's request to provide him with an additional mattress. What couldmore reasonablethanproviding an additional mattress to a man with back pain so severe that he was given morphine to alleviate it? Mr. Dhiab is clearly a very sick, depressed, and desperate man. It is hard for those ofus in the Continental United States to fully understand his situation and the atmosphere at Guantanamo Bay. He has been cleared for release since 2009 and one can only hope that that release will take place shortly.

November 7, 2014
Copies via ECF to all counsel ofrecord

12 The Courtunderstands full well that the medical staffat Guantanamo Bay could notreach a conclusion as to what, ifany, medical problem was interfering with Mr. Dhiab's walking. -20-