The opinion of the court was delivered by: Gladys Kessler United States District Judge
Petitioners Mohammad Ali Abdullah Bawazir (ISN 440) and Zahir Omar Khamis Bin Hamdoon (ISN 576) have been detained at the United States Naval Base at Guantanamo Bay, Cuba, since shortly after the terrorist attacks of September 11, 2001. They both have habeas corpus petitions pending before the Court. Petitioners bring this action against Respondents in order to enjoin certain treatment that they are undergoing as a result of the voluntary hunger strikes they have undertaken to protest their lengthy detentions without judicial scrutiny of the legality of such detentions.
The matter is before the Court on Petitioners' Renewed Emergency Motion for Injunction Against Further Torture of Mohammed Bawazir ("Renewed Emergency Mot.") [Dkt. No. 234].*fn2 Upon consideration of the Motion, Opposition, Reply, supplemental filings, oral argument, and the entire record herein, and for the reasons set forth below, Petitioners' Renewed Emergency Motion is denied.
On February 7, 2005, five detainees (including Bawazir and Hamdoon) filed a petition for habeas corpus [Dkt. No. 1] in the above-captioned case. The Court's jurisdiction to consider these petitions underwent a series of challenges. Eventually, the Supreme Court confirmed that non-citizen detainees at Guantanamo Bay alleged by the Government to be enemy combatants do have the Constitutional right to petition federal courts for habeas relief in order to challenge the legality of their detention. See Boumediene v. Bush, 128 S.Ct. 2229 (2008).
While these issues were being litigated, Petitioners' counsel sought greater access to their clients, as they became concerned over reports of hunger strikes at Guantanamo Bay.*fn3 See Pets.' Mot. to Compel Access to Counsel and Information Related to Medical Treatment (Sept. 20, 2005) [Dkt. No. 49]. After briefing and oral argument, the Court entered an Order [Dkt. No. 62] that required Respondents to "provide notice to Petitioners' counsel within 24 hours of the commencement of any forced feeding of their clients," and to provide medical records for those detainees being force-fed. Order (Oct. 25, 2005).
In the wake of that Order, Petitioner Bawazir asked the Court on February 28, 2006 [Dkt. No. 68] to provide non-habeas relief to improve the conditions under which he was being held at Guantanamo Bay. See Emergency Mot. for Preliminary Inj. Against Further Torture of Mohammed Bawazir ("Original Emergency Mot.") [Dkt. No. 68]. On March 9, 2007, Petitioner's counsel learned of additional evidence of hunger-striking, and renewed their Original Emergency Motion. [Dkt. No. 96]. The two Emergency Motions were denied without prejudice on March 10, 2008, pending resolution of the jurisdictional issue presented in Boumediene, which was then pending in the Supreme Court. See Order (Mar. 10, 2008) [Dkt. No. 123].
On January 8, 2009, Petitioner filed a Renewed Emergency Motion seeking injunctive relief. The Motion was supplemented on January 9, 2009 [Dkt. No. 236] and January 22, 2009 [Dkt. No. 257]. The Government filed Oppositions on January 12, 2009 [Dkt. No. 239] and January 23, 2009 [Dkt. No. 260]. On January 22, 2009, Petitioner Hamdoon joined Petitioner Bawazir's Motion. On January 26, 2009, the Court held a lengthy motions hearing.
On January 7, 2009, counsel for Petitioner Bawazir learned that Respondents had resumed force-feeding their client in November of 2008.*fn4 In the same week, on January 12, 2009, counsel learned that Petitioner Hamdoon had been force-fed since January 6, 2009; in addition, Hamdoon had undergone forced-feeding in the period between November 8 and December 21, 2008. See Pet. Hamdoon's Mot. to Join, at 1-2. Petitioners' counsel did not receive, in a timely fashion, the notice or medical records to which they were entitled under the Court's Order of October 25, 2005.*fn5
Parties do not dispute that Respondents' method for forced-feeding is to strap a hunger-striking detainee into a restraint-chair, with straps tightly restraining his arms, legs, chest, and forehead, and to administer a nutritional formula via a feeding tube inserted through one nostril. The process of administering the formula usually takes approximately one hour. See Renewed Emergency Mot., at 2; Gov's Opp'n (Jan. 23, 2009), at 8-9 (citing August Meneley Decl., at ¶ 4).
Parties do not agree on the need to restrain these Petitioners in such a restraint-chair. Moreover, at times, they have disagreed about whether the feeding tube should be left in place between enteral feedings.*fn6
In response to Petitioners' claims, Respondents recite the circumstances that led to the restraint-chair policy, including a history of resistance by detainees and assaults against staff, and the consideration of several other less restrictive methods of force-feeding the hunger-strikers. See Gov's Opp'n (Jan. 23, 2009), at 4-8. In doing so, they cite to several sworn declarations made by staff at Guantanamo Bay, attesting to the need to use restraints and their policy of using such restraints in a "safe and humane manner." Gov's Opp'n (Jan. 23, 2009), at 9; see, e.g., Supplemental Decl. of Major General Jay W. Hood ("Supp. Hood. Decl.") (Ex. 3 to Gov's Supp. Memo. in Opp'n to Pet.'s Original Emergency Mot. (Mar. 13, 2006) [Dkt. No. 74]); Decl. of Captain Bruce C. Meneley, M.D. ("Meneley Decl.") (Ex. E to Gov's Opp'n (Jan. 23, 2009)); Martin Decl. Respondents maintain that the restraint-chair policy is necessary to keep both detainees and staff as safe as possible during enteral feeding, that the feeding is not any more painful than required, and that the feeding tube is removed from Petitioner Bawazir and re-inserted twice a day because leaving it in between feeding has caused him sinus infections and discomfort. Gov's Opp'n (Jan. 23, 2009), at 10-12.
Petitioner Bawazir represents that he is compliant with enteral feeding, and therefore the restraint-chair is unnecessary. Renewed Emergency Mot., at 2-3. Compounding the pain and upsetting nature of this excessive treatment, Petitioners maintain, is the fact that military personnel have begun to administer the enteral feeding rather than medical personnel. Id. (citing Decl. of Ramzi Kassem (Ex. A and B to Pets.' Supp. to Renewed Emergency Mot. (Jan. 9, 2009)); see also Decl. of Kristin B. Wilhelm (Ex. A to Pet. Hamdoon's Mot. to Join).
Further, the parties agree that both Petitioners suffered medical problems (although not necessarily related to the forced-feeding) that required additional treatment: Petitioner Bawazir suffered from sinusitis and hemorrhoids, while Petitioner Hamdoon suffered from tonsilitis. Oral Arg. (Jan. 26, 2009). Petitioner Bawazir alleges that hunger-striking detainees are denied medical treatment "unless and until they end their hunger strike." Pet. Hamdoon's Mot. to Join, at 3. The Government insists that medical care is not withheld punitively, and has provided ...