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
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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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