DHIAB et al v. BUSH et al

Filing 224

ORDER: The Temporary Restraining Order in this case will not be reissued (See Order for details). Signed by Judge Gladys Kessler on 05/22/2014. (lcgk2, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________

:
:
:
Petitioner,
:
:
v.
:
:
BARACK H. OBAMA, et. al.,
:
:
Respondents.
:
______________________________:
ABU WA’EL (JIHAD) DHIAB,

Civil Action No. 05-1457 (GK)

ORDER
During a lengthy bench conference at the status hearing
held on May 21, 2014, the Court strongly suggested that the
Parties

come

enterally

to

feed

Application

for

a

compromise

Petitioner

about

Dhiab

Preliminary

the

procedures

during

the

pendency

Injunction.

Mr.

Dhiab’s

used
of

to
his

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

actually

for

facing

an

enteral

feeding

“imminent

risk

is

whether

of

death

or

Mr.

Dhiab

great

is

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/_________________________
Gladys Kessler
United States District Judge

May 22, 2014

Copies to: attorneys on record via ECF

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