Shaker Aamer v. Barack Obama

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 18, 2013 Decided February 11, 2014

No. 13-5223

SHAKER ABDURRAHEEM AAMER, DETAINEE, CAMP DELTA

AND SAEED AHMED SIDDIQUE, NEXT FRIEND OF SHAKER

ABDURRAHEEM AAMER,

APPELLANTS

v.

BARACK OBAMA, PRESIDENT OF THE UNITED STATES OF

AMERICA, ET AL.,

APPELLEES

Consolidated with 13-5224, 13-5225, 13-5276

Appeals from the United States District Court

for the District of Columbia

(No. 1:04-cv-02215)

(No. 1:05-cv-01504)

(No. 1:05-cv-02349)

(No. 1:05-cv-01457)

Jon B. Eisenberg argued the cause for appellants. With

him on the brief were Cori Crider and Tara Murray. Shayana

D. Kadidal entered an appearance.

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Daniel J. Lenerz, Attorney, U.S. Department of Justice,

argued the cause for appellees. With him on the brief were

Stuart F. Delery, Assistant Attorney General, and Douglas N.

Letter and Matthew M. Collette, Attorneys.

Before: TATEL and GRIFFITH, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

Dissenting opinion filed by Senior Circuit Judge

WILLIAMS.

TATEL, Circuit Judge: Petitioners Ahmed Belbacha, Abu

Dhiab, and Shaker Aamer are detainees who, although cleared

for release, remain held at the United States Naval Station at

Guantanamo Bay, Cuba. Protesting their continued

confinement, they and other similarly situated detainees have

engaged in a hunger strike, refusing to eat unless and until

released. In response, the government instituted a force-

feeding protocol. Petitioners, each of whom had already

sought release via a writ of habeas corpus, moved in those

habeas actions for a preliminary injunction preventing the

government from subjecting them to force-feeding. Two

separate district judges denied their requests, each concluding

that the Military Commissions Act (MCA) stripped federal

courts of jurisdiction to consider such challenges brought by

Guantanamo detainees. For the reasons set forth in this

opinion, we conclude that under the law of this circuit

petitioners’ challenges to the conditions of their confinement

properly sound in habeas corpus and thus are not barred by

the MCA. We also conclude, however, that although their

claims are not insubstantial, petitioners have failed to

establish their entitlement to preliminary injunctive relief.

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I.

A declaration submitted by the Senior Medical Officer at

Guantanamo Bay summarizes the government’s force-feeding

protocol. According to the declaration, the protocol “follows

the Federal Bureau of Prisons’ model and guidelines for

managing hunger strikers.” Decl. of Commander [Redacted],

M.D., 3. The medical staff at Guantanamo begins by

designating a detainee as a “hunger striker . . . based on the

detainee’s intent, purpose, and behavior,” the detainee’s

“[w]eight loss to a level less than 85% of the detainee’s Ideal

Body Weight,” or the detainee’s missing “nine consecutive

meals.” Id. Then, if “medical personnel determine the

detainee’s refusal to voluntarily consume adequate food or

nutrients could now threaten his life or health,” the detainee

may be “approved for enteral feeding”—that is, force-feeding

using “nasogastric tubes” inserted through the detainee’s nose

and into his stomach. Id. at 4. The declaration states that even

after a detainee is approved for such treatment, “medical

personnel will only implement enteral feeding when it

becomes medically necessary to preserve a detainee’s life and

health.” Id. The medical staff will also offer the detainee a

final “opportunity to eat a standard meal or consume [a] liquid

supplement orally, instead of being enterally fed.” Id.

If the detainee refuses, officials will strap him to a

“restraint chair.” Decl. of Commander [Redacted], M.D., 5.

The restraint chair, the declaration explains, “is ergonomically

designed for the detainee’s comfort and protection, with a

padded seat and padded back support.” Id. Once the detainee

is restrained, “physicians or credentialed registered nurses”

insert the “nasogastric tubes” through the detainee’s nostril

using a lubricant and, unless the detainee declines, “a topical

anesthetic such as lidocane.” Id. at 4. After medical personnel

have verified that the tube has been properly placed in the

detainee’s stomach, “an appropriate amount of nutritional

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supplement formula is infused by gravity.” Id. The actual

feeding process “typically takes 30 to 40 minutes.” Id. Once

the feeding is complete, the medical staff keeps the detainee

strapped in the restraint chair for an additional period in order

“to ensure the detainee has tolerated the feeding and to permit

digestion of the nutritional formula.” Id. at 5. “Detainees are

offered pain relievers, such as ibuprofen, if they indicate any

discomfort from the feeding procedure.” Id.

Medical staff designated petitioners Dhiab, Belbacha, and

Aamer as hunger strikers in March 2013. Decl. of

Commander [Redacted], M.D., 7. The staff approved Dhiab

for enteral feeding that same month, and Belbacha shortly

thereafter. Id. A declaration submitted by petitioners’ counsel

reports that, as of May 30, 2013, medical personnel had

regularly subjected Belbacha to force-feeding. See Crider

Decl. 6. Belbacha stated that the process “hurt[] a great deal”

and caused one of his nostrils to swell shut. Id. Dhiab, the

same declaration recounted, had also been regularly force-

fed—except when, because of “severe pain,” he had instead

voluntarily consumed a liquid supplement. Id. at 14, 17.

Although Aamer was never approved for enteral feeding,

apparently because he had been willing to consume the

minimal amount of nutrition necessary to avoid such

treatment, he asserted through counsel that “if force-feeding

were not permitted, he would escalate his peaceful protest and

refuse food.” Id. at 12. The government has informed us that

although neither Belbacha nor Aamer is currently designated

as a hunger striker, Dhiab retains that designation. See

Appellees’ Letter Regarding Case Status, November 8, 2013;

Appellees’ Letter Regarding Case Status, October 24, 2013.

In June, petitioners—together with fellow Guantanamo

detainee Nabil Hadjarab, who has since been released—

invoked the district court’s habeas jurisdiction and moved for

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a preliminary injunction prohibiting the authorities from

force-feeding them. According to petitioners, the practice

violated both their constitutional rights and the Religious

Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1.

Judge Kessler considered Dhiab’s petition separately

from those of the other petitioners. Holding that section 7 of

the Military Commissions Act of 2006 (MCA), Pub. L. No.

109-366, 120 Stat. 2600, had stripped the district courts of

subject-matter jurisdiction over claims, such as Dhiab’s,

relating to the “conditions of confinement of an alien who is

or was detained by the United States and has been determined

by the United States to have been properly detained as an

enemy combatant,” she rejected the request for a preliminary

injunction. Dhiab v. Obama, No. 05-1457, slip op. at 2

(D.D.C. July 8, 2013) (unpublished) (quoting 28 U.S.C.

§ 2241(e)(2)). She also observed, however, that “it is perfectly

clear . . . that force-feeding is a painful, humiliating and

degrading process.” Id. at 3.

Judge Collyer subsequently denied the remaining

petitioners’ applications for a preliminary injunction. Aamer

v. Obama, Nos. 04-2215, 05-1504, 05-2349, slip op. at 2

(D.D.C. July 16, 2013) (unpublished). Like Judge Kessler, she

concluded that MCA section 7 stripped the courts of subject-

matter jurisdiction over the detainees’ claims. Id. at 12. Judge

Collyer went on to explain that even if the court had

jurisdiction, “the motion would be denied due to failure to

show likelihood of success on the merits and because the

public interest and balance of harms weighs in favor of the

Government.” Id. She reasoned that the government has

“legitimate penological interest[s] in preventing suicide” and

in “preserving order, security, and discipline,” and that “the

requested injunction would increase the risk of irreparable

harm to Petitioners’ lives and health.” Id. at 13–14.

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After both sets of petitioners appealed, we consolidated

the cases. Petitioners assert, as they did in the district court,

that their claims are properly raised in a petition for habeas

corpus. They further contend that the two district courts

should have granted them the preliminary relief they sought.

II.

We begin, as we must, with the question of subject-

matter jurisdiction. See Steel Co. v. Citizens for a Better

Environment, 523 U.S. 83, 101–02 (1998). The government

contends, as both district courts held, that the MCA’s

jurisdiction-stripping provision bars federal courts from

considering petitioners’ force-feeding challenges. Our review

is de novo. Ass’n of Civilian Technicians v. FLRA, 283 F.3d

339, 341 (D.C. Cir. 2002).

A.

Congress and the Supreme Court have engaged in an

extensive back-and-forth regarding the scope of federal court

jurisdiction over claims brought by Guantanamo detainees. A

brief review of this dialogue is necessary to understand the

question now before us.

The story starts with Rasul v. Bush, 542 U.S. 466 (2004).

In that case, several Guantanamo detainees had filed a petition

for habeas corpus seeking “release from custody, access to

counsel, freedom from interrogations, and other relief.” Id. at

472. Other detainees, invoking the jurisdictional provisions of

28 U.S.C. §§ 1331 and 1350, sought “to be informed of the

charges against them, to be allowed to meet with their

families and with counsel, and to have access to the courts or

to some other impartial tribunal.” Id. The Supreme Court held

that the district court had jurisdiction to hear all of these

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claims. Id. at 483–85. It explained that 28 U.S.C. § 2241, the

federal habeas corpus statute, extended to those detained at

Guantanamo, which, for the purposes of this statute at least,

was “within ‘the territorial jurisdiction’ of the United States.”

Id. at 480 (quoting Foley Brothers, Inc. v. Cilardo, 336 U.S.

281, 285 (1949)). The Court further concluded that if

statutory habeas jurisdiction extended to Guantanamo, then

there was no reason to bar detainees from also raising claims

pursuant to sections 1331 and 1350: the detainees were

entitled to “the privilege of litigation in U.S. courts.” Id. at

484 (internal quotation marks omitted).

Shortly thereafter, Congress passed the Detainee

Treatment Act of 2005 (DTA), Pub. L. No. 109-148, 119 Stat.

2739, which contained a provision designed to abrogate Rasul

and strip federal courts of jurisdiction over Guantanamo

detainees’ claims. See DTA § 1005(e). After the Supreme

Court held that this provision could not apply retroactively to

cases pending at the time the DTA was enacted, see Hamdan

v. Rumsfeld, 548 U.S. 557, 575–76 (2006), Congress

responded by passing the MCA, the statute at issue in this

case, whose jurisdiction-stripping provisions unequivocally

applied to all claims brought by Guantanamo detainees. See

Boumediene v. Bush, 553 U.S. 723, 736–39 (2008). MCA

section 7 provides:

(1) No court, justice, or judge shall have

jurisdiction to hear or consider an application for a

writ of habeas corpus filed by or on behalf of an

alien detained by the United States who has been

determined by the United States to have been

properly detained as an enemy combatant or is

awaiting such determination.

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(2) Except as provided [in section 1005(e) of the

DTA], no court, justice, or judge shall have

jurisdiction to hear or consider any other action

against the United States or its agents relating to

any aspect of the detention, transfer, treatment,

trial, or conditions of confinement of an alien who

is or was detained by the United States and has

been determined by the United States to have been

properly detained as an enemy combatant or is

awaiting such determination.

28 U.S.C. § 2241(e).

Passage of the MCA required the Supreme Court to

confront the constitutional question it had until then

successfully avoided: may Congress eliminate federal habeas

jurisdiction over Guantanamo without complying with the

requirements of the Suspension Clause? In Boumediene v.

Bush, 553 U.S. 723 (2008), the Court answered this question

in the negative. It first held that the Suspension Clause “has

full effect at Guantanamo Bay.” Id. at 771. The Court then

concluded that the substitute procedures Congress had

developed for Guantanamo detainees—review in this court of

military tribunal decisions—were “an inadequate substitute

for habeas corpus,” id. at 792, which at the very least “entitles

the prisoner to a meaningful opportunity to demonstrate that

he is being held pursuant to ‘the erroneous application or

interpretation’ of relevant law” before a court that “must have

the power to order the conditional release of an individual

unlawfully detained,” id. at 779 (quoting INS v. St. Cyr, 533

U.S. 289, 302 (2001)). Thus, the Court held, MCA section 7

“operates as an unconstitutional suspension of the writ.” Id. at

733, 792.

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This court addressed Boumediene’s effect on the relevant

jurisdictional statutes in Kiyemba v. Obama, 561 F.3d 509

(D.C. Cir. 2009). In petitions for habeas corpus, nine

detainees had sought to bar the government from transferring

them to a country where they might be tortured or detained.

Id. at 511. The government contended that the district court

lacked jurisdiction to consider such claims, arguing that

Boumediene held MCA section 7 to be “unconstitutional only

insofar as it purported to deprive the district court of

jurisdiction to hear a claim falling within the ‘core’ of the

constitutional right to habeas corpus, such as a challenge to

the petitioner’s detention or the duration thereof.” Id. at 512.

Rejecting that argument, we held—in language central to this

case—that Boumediene “invalidate[d] § 2241(e)(1) with

respect to all habeas claims brought by Guantanamo

detainees, not simply with respect to so-called ‘core’ habeas

claims.” Id. Thus, the Supreme Court’s decision had

“necessarily restored the status quo ante, in which detainees at

Guantanamo had the right to petition for habeas under

§ 2241.” Id. at 512 n.2. Because the federal courts’ statutory

habeas jurisdiction had been restored, we saw “no need to

decide . . . whether the . . . petitions c[a]me within the

contours and content of constitutional habeas.” Id. (internal

quotation marks omitted). Rather, the question was simply

whether the petitioners had “allege[d] a proper claim for

habeas relief.” Id. at 513. We concluded that they had. Id.

Subsequently, in Al-Zahrani v. Rodriguez, 669 F.3d 315

(D.C. Cir. 2012), we clarified that section 2241(e)(2)—the

other subsection of MCA section 7—continues in force. In Al-

Zahrani, which involved a suit brought by families of

detainees who had died at Guantanamo, id. at 316–17, we

held that the district court lacked jurisdiction because the

“litigation rather plainly constitute[d] an action other than

habeas corpus brought against the United States and its agents

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relating to ‘aspect[s] of the detention . . . treatment . . . [and]

conditions of confinement of an alien’ as described in the

MCA,” id. at 319. Boumediene, we explained, dealt with

section 2241(e)(1), which stripped federal courts of habeas

jurisdiction. Id. By contrast, section 2241(e)(2) “has no effect

on habeas jurisdiction,” and thus the “Suspension Clause is

not relevant and does not affect the constitutionality of the

statute.” Id. We went on to reject the plaintiffs’ claim that

section 2241(e)(2) was itself unconstitutional, observing that

the only remedy sought by the plaintiffs was money damages

and that “such remedies are not constitutionally required.” Id.

B.

Kiyemba and Al-Zahrani make clear that the

jurisdictional question we consider here is relatively narrow:

are petitioners’ claims the sort that may be raised in a federal

habeas petition under section 2241? As the government

emphasizes, petitioners challenge neither the fact nor the

duration of their detention, claims that would lie at the heart

of habeas corpus. See, e.g., Preiser v. Rodriguez, 411 U.S.

475, 484 (1973) (“[T]he traditional function of the writ is to

secure release from illegal custody.”). Instead, they attack the

conditions of their confinement, asserting that their treatment

while in custody renders that custody illegal—claims that

state and federal prisoners might typically raise in federal

court pursuant to 42 U.S.C. § 1983 and Bivens v. Six

Unknown Named Agents, 403 U.S. 388 (1971). But although

petitioners’ claims undoubtedly fall outside the historical core

of the writ, that hardly means they are not a “proper subject of

statutory habeas.” Kiyemba, 561 F.3d at 513. “Habeas is not

‘a static, narrow, formalistic remedy; its scope has grown to

achieve its grand purpose.’” Boumediene, 553 U.S. at 780

(quoting Jones v. Cunningham, 371 U.S. 236, 243 (1963)).

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If, as petitioners assert, their claims fall within the scope

of habeas, then the district courts possessed jurisdiction to

consider them because the federal habeas corpus statute

extends, in its entirety, to Guantanamo. See Kiyemba, 561

F.3d at 512 & n.2. But if petitioners’ claims do not sound in

habeas, their challenges “constitute[] an action other than

habeas corpus” barred by section 2241(e)(2). Al-Zahrani, 669

F.3d at 319.

Contrary to the contentions of the government and the

dissent, in order to resolve this jurisdictional question we have

no need to inquire into Congress’s intent regarding federal

court power to hear Guantanamo detainees’ claims. Although

Congress undoubtedly intended to preclude federal courts

from exercising jurisdiction over any claims brought by

Guantanamo detainees, it chose to do so through a statute that

separately proscribes two different sorts of challenges:

“habeas” actions, see 28 U.S.C. § 2241(e)(1), and all “other”

actions, see id. § 2241(e)(2). Boumediene struck down the

first of these—the provision that would, but for Boumediene,

preclude Guantanamo detainees from bringing habeas actions.

See Kiyemba, 561 F.3d at 512. The remaining, lawful

subsection of MCA section 7 has, by its terms, “no effect on

habeas jurisdiction.” Al-Zahrani, 669 F.3d at 319. In the wake

of Boumediene and this court’s interpretation of that decision

in Kiyemba, Congress might very well want to preclude

Guantanamo detainees from bringing particular types of

habeas actions. But even assuming that Congress intends to

again strip federal courts of habeas jurisdiction, it has yet to

do so. Because we are unable to give effect to a non-existent

statute, any such unmanifested congressional intent has no

bearing on whether petitioners may bring their claims.

Instead, given that statutory habeas extends to Guantanamo,

the issue now before us is not Guantanamo-specific. We ask

simply whether a challenge such as that advanced by

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petitioners constitutes “a proper claim for habeas relief” if

brought by an individual in custody in Guantanamo or

elsewhere. Kiyemba, 561 F.3d at 513.

For the same reasons, we have no need to explore the

reach or breadth of the Suspension Clause. Simply put, there

is no longer any statute in place that might unconstitutionally

suspend the writ. We express no view on whether Congress

could constitutionally enact legislation designed to preclude

federal courts from exercising jurisdiction over the particular

species of habeas claim petitioners advance. For our purposes,

it suffices to say that Congress has not done so. Moreover,

because of our focus on statutory habeas corpus, we have less

need in this case to examine the writ’s scope at the time the

Constitution was ratified than we might in a case in which the

constitutional question was presented. Compare St. Cyr, 533

U.S. at 301 (“[A]t the absolute minimum, the Suspension

Clause protects the writ ‘as it existed in 1789.’”) (quoting

Felker v. Turpin, 518 U.S. 651, 664 (1996)), with Rasul, 542

U.S. at 474 (“As it has evolved over the past two centuries,

the habeas statute clearly has expanded habeas corpus

‘beyond the limits that obtained during the 17th and 18th

centuries.’”) (quoting Swain v. Pressley, 430 U.S. 372, 380

n.13 (1977)). It is to the question of the current scope of

statutory habeas corpus that we now turn.

C.

The Supreme Court once suggested—indeed, held—that

the scope of the writ encompasses conditions of confinement

claims such as those petitioners assert. In Johnson v. Avery,

393 U.S. 483 (1969), the Court permitted a federal prisoner to

challenge by writ of habeas corpus a prison regulation that

prohibited him from providing legal assistance to other

prisoners. See id. at 484, 490. Likewise, in Wilwording v.

Swenson, 404 U.S. 249 (1971), the Court expressly held that a

13

petition brought by state prisoners challenging “their living

conditions and disciplinary measures,” id. at 249, was

“cognizable in federal habeas corpus,” id. at 251.

Subsequently, however, in Preiser v. Rodriguez, 411 U.S.

475 (1973), the Supreme Court reversed course, opting

instead to treat as an open question the writ’s extension to

conditions of confinement claims. In Preiser, the Court

addressed the scope of relief state prisoners may seek under

the federal civil rights statute, 42 U.S.C. § 1983. The Court

held that when a challenge falls within the “heart of habeas

corpus,” id. at 498, state prisoners may not proceed by way of

a section 1983 action, as otherwise they could evade the

exhaustion and other procedural requirements established for

state habeas challenges in the federal courts. Id. at 489–90.

Claims that fall within the “heart” or “core” of habeas corpus,

and thus may be brought in federal court solely by means of a

petition for the writ, are those in which a prisoner

“challeng[es] the very fact or duration of his physical

imprisonment.” Id. at 500. Significantly, the Court did not

hold that the converse is also true—that is, that any claim

challenging something apart from the fact or duration of

confinement may not be raised in habeas. To the contrary,

citing both Johnson and Wilwording, the Court stated: “This

is not to say that habeas corpus may not also be available to

challenge . . . prison conditions.” Preiser, 411 U.S. at 499.

But according to the Court, its prior decisions had left this

question unresolved. “When a prisoner is put under additional

and unconstitutional restraints during his lawful custody,” the

Court explained, “it is arguable that habeas corpus will lie to

remove the restraints making the custody illegal.” Id.

(emphasis added). But see id. at 505 (Brennan, J., dissenting)

(stating that it was well-established that “a prisoner may

challenge the conditions of his confinement by petition for

writ of habeas corpus”).

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Since Preiser, the Court has continued—quite

expressly—to leave this question open. In Bell v. Wolfish, 441

U.S. 520 (1979), the Court left “to another day the question of

the propriety of using a writ of habeas corpus to obtain review

of the conditions of confinement, as distinct from the fact or

length of the confinement itself.” Id. at 527 n.6. More

recently, in Boumediene itself, the Court declined to “discuss

the reach of the writ with respect to claims of unlawful

conditions of treatment or confinement.” 553 U.S. at 792.

Although the Supreme Court has avoided resolving the

issue, this circuit has not. Our precedent establishes that one

in custody may challenge the conditions of his confinement in

a petition for habeas corpus, and we must “adhere to the law

of our circuit unless that law conflicts with a decision of the

Supreme Court.” Rasul v. Myers, 563 F.3d 527, 529 (D.C.

Cir. 2009).

Most important is our decision in Hudson v. Hardy, 424

F.2d 854 (D.C. Cir. 1970) (“Hudson II”). In Hudson II, an

inmate in the District of Columbia jail sought relief from

certain jail officials who he claimed subjected him to beatings

and threats and deprived him of his right to practice his

religion, among other things. Id. at 855; see also Hudson v.

Hardy, 412 F.2d 1091, 1091 (D.C. Cir. 1968) (“Hudson I”)

(describing petitioner’s claims). Responding to the

government’s argument that the case had become moot

because the petitioner had since been transferred outside the

jurisdiction, we held that even if the complaint could not be

construed as a section 1983 claim for damages, the “core of

[the inmate’s] complaint when filed was an unlawful

deprivation of liberty,” and thus the petition was “in effect . . .

for a writ of habeas corpus.” Hudson II, 424 F.2d at 855. In

language directly applicable to this case, we held: “Habeas

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corpus tests not only the fact but also the form of detention.”

Id. at 855 n.3. If, we continued, the inmate’s pleadings were

treated as a petition for habeas corpus, then the case might not

be moot for a number of reasons, among them that the

inmate’s “disciplinary record may follow him throughout the

prison system” in a manner that could both lead to harsher

treatment while he was incarcerated and “affect his eligibility

for parole.” Id. at 856. We therefore remanded for the district

court to ascertain whether, if the petition was for habeas

corpus, as opposed to a claim for damages, the inmate was

“still subject to disabilities because of the unlawful acts

alleged.” Id. at 856.

Hudson II’s description of the writ’s availability to test

“not only the fact but also the form of detention” was integral

to our ultimate disposition of the case, and thus constitutes

binding precedent. If habeas jurisdiction would not lie over

the inmate’s claims, we would have had no need to direct the

district court to conduct further proceedings regarding the

mootness of any such habeas petition. We based the necessary

antecedent conclusion regarding habeas jurisdiction on two

premises: that the petitioner attacked the conditions of his

confinement while in custody; and that such claims may be

raised in habeas corpus. Doing so quite explicitly, we held

that the inmate’s petition—which, again, alleged that jail

officials “had subjected him to cruel and unusual punishment,

to punishment without cause, and to unconstitutional

discrimination,” Hardy II, 424 F.2d at 855—was “for a writ

of habeas corpus” because “[h]abeas corpus tests not only the

fact but also the form of detention.” Id. at 855 & n.3. Indeed,

unless we were holding that habeas jurisdiction would lie for

this purpose, we could not have offered as a potential

justification for the continued existence of a live controversy

the possibility that the disciplinary record would subject

petitioner to harsher treatment while in prison, see id. at

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856—an independent, and therefore precedential, basis for

our remand. See Woods v. Interstate Realty Co., 337 U.S. 535,

537 (1949) (“[W]here a decision rests on two or more

grounds, none can be relegated to the category of obiter

dictum.”).

The dissent seeks to avoid this conclusion in three ways.

First, the dissent asserts that because we remanded for the

district court to make findings as to mootness, we could not

have issued a precedential decision as to whether the

petitioner’s claims sounded in habeas, for by doing so we

would have “flouted the rule that on any appeal ‘the first and

fundamental question is that of jurisdiction.’” Dissenting Op.

at 3 (quoting Steel Co., 523 U.S. at 94). But the habeas statute

is jurisdictional, see Rasul, 542 U.S. at 484, so whether a

claim is the type that sounds in habeas is itself a jurisdictional

question, see Wolfish, 441 U.S. at 527 n.6, Kiyemba, 561 F.3d

at 513, and “there is no mandatory sequencing of

jurisdictional issues.” Sinochem International Co. v. Malaysia

International Shipping Corp., 549 U.S. 422, 431 (2007). Just

as plaintiffs invoking federal question jurisdiction must assert

claims that turn on questions of federal law, petitioners

invoking habeas jurisdiction must assert claims that sound in

habeas. Simply labeling the latter requirement “the merits of

whether a claim is cognizable in habeas,” see Dissenting Op.

at 4, does not somehow transform it into a merits issue. Next,

the dissent points out that in Hudson II we suggested that the

petitioner could seek injunctive relief pursuant to section

1983. See id. at 5; Hudson II, 424 F.2d at 855 n.3. True, but

we also held that the petitioner could raise his claims by way

of a petition for habeas corpus, and again, alternative grounds

for a decision are nonetheless precedential. See Woods, 337

U.S. at 537. Finally, the dissent thinks it “unclear whether

[Hudson II] addresses conditions of confinement at all,” and

advances various other potential rationales that we could have

17

offered for concluding that habeas jurisdiction existed.

Dissenting Op. at 6. But the dissent misreads Hudson II’s

discussion of mootness. Contrary to the dissent’s contention,

we cited the inmate’s transfer to Leavenworth prison not as an

“example of future punishment,” id., but rather as an

independent reason that his petition might not be moot, see

Hudson II, 424 F.2d at 856. We mentioned being “subjected

to . . . additional restraints” as an example of the petitioner

being “punished anew.” Id. at 856 & n.7. And in any event,

we based our determination that habeas jurisdiction existed on

none of the justifications offered by the dissent. Instead, we

clearly held that the petitioner’s claim sounded in habeas

because “[h]abeas corpus tests not only the fact but also the

form of detention.” Id. at 855 n.3. We cannot now disregard

this holding simply by inventing alternative rationales on

which Hudson II could have relied; we are bound by the

rationale on which Hudson II did rely.

Hudson II’s characterization of the scope of habeas

corpus is by no means an outlier in this circuit’s

jurisprudence—even if it is the only decision that is

precedential on that precise question. We invoked the very

same principle in United States v. Wilson, 471 F.2d 1072

(D.C. Cir. 1972). In that case, a defendant, on direct appeal

from his conviction, claimed that his sentence of

imprisonment amounted to cruel and unusual punishment

given his mental illness. Id. at 1077. Rejecting his claim, we

reasoned “that the only available remedy at this time is a

petition for writ of habeas corpus in the jurisdiction in which

appellant is confined.” Id. at 1080. Although holding that such

a petition would have to be “brought in the district of

confinement”—which was located outside this court’s

jurisdiction—we left little doubt that petitioners’ claims could

be raised in habeas, stating: “appellant unquestionably has the

18

right to challenge the conditions of his confinement.” Id. at

1081.

Equally significant is Miller v. Overholser, 206 F.2d 415

(D.C. Cir. 1953), which involved a habeas petitioner who

sought transfer from an institution for the criminally insane to

an institution for treatment of the mentally ill. Here the

government cites Miller for the proposition that “‘the courts

will not interfere with discipline or treatment in a place of

legal confinement, and so habeas corpus is not an available

remedy.’” Appellees’ Br. 12 (quoting Miller, 206 F.2d at

419). But the government has excised the key phrase from the

quoted sentence, thus completely changing its meaning. In

fact, Miller clearly supports petitioners, as the full sentence

reads: “Except in circumstances so extreme as to transgress

constitutional prohibitions, the courts will not interfere with

discipline or treatment in a place of legal confinement, and so

habeas corpus is not an available remedy.” Miller, 206 F.2d at

419 (emphasis added); cf. also Creek v. Stone, 379 F.2d 106,

109 (D.C. Cir. 1967) (“[I]n general habeas corpus is available

not only to an applicant who claims he is entitled to be freed

of all restraints, but also to an applicant who protests his

confinement in a certain place, or under certain conditions,

that he claims vitiate the justification for confinement.”).

During oral argument, the government asserted that our

decisions recognize only that a habeas petitioner may

challenge the place of confinement, not the conditions therein.

It is true that the petitioner in Miller alleged that his

confinement in a particular place was illegal. See Miller, 206

F.2d at 419. But neither Hudson II nor Wilson was so limited.

Not only did petitioners in both cases directly attack their

treatment while in custody, but we made no mention of the

possibility that they might instead be detained in a different

place in which such conditions were absent.

19

In any event, we see little reason to distinguish a place of

confinement challenge, which unquestionably sounds in

habeas, see, e.g., Kiyemba, 561 F.3d at 513; In re Bonner, 151

U.S. 242, 255–56 (1894), from the one presented here. The

substantive inquiry in which courts engage in the two types of

cases will often be identical. A place of confinement claim

such as that asserted in Miller rests on the contention that the

conditions of confinement in a particular place violate the

law. See Miller, 206 F.2d at 418–19 (holding that, if true, the

facts alleged by petitioner regarding the conditions where he

was held demonstrated his confinement in that place was “not

authorized by . . . statute”); see also Covington v. Harris, 419

F.2d 617, 624 (D.C. Cir. 1969) (habeas petitioner’s challenge

to his placement in a particular ward within a hospital turned

on the validity of “additional restrictions beyond those

necessarily entailed by hospitalization,” which “are as much

in need of justification as any other deprivations of liberty”).

A conditions of confinement claim involves the very same

inquiry: do the conditions in which the petitioner is currently

being held violate the law? See Wilson, 471 F.2d at 1080;

Hudson II, 424 F.2d at 855.

The principal functional difference between the two sorts

of challenges lies in the relief that a court might grant. In a

place of confinement claim, the petitioner’s rights may be

vindicated by an order of transfer, while in a conditions of

confinement claim, they may be vindicated by an order

enjoining the government from continuing to treat the

petitioner in the challenged manner. But even this distinction

is largely illusory, as either of these two forms of relief may

be reframed to comport with the writ’s more traditional

remedy of outright release. That is, in both types of cases, a

court may simply order the prisoner released unless the

unlawful conditions are rectified, leaving it up to the

20

government whether to respond by transferring the petitioner

to a place where the unlawful conditions are absent or by

eliminating the unlawful conditions in the petitioner’s current

place of confinement. See Bonner, 151 U.S. at 262 (directing

that the writ should issue in favor of petitioner illegally held

in state penitentiary, but “without prejudice to the right of the

United States to take any lawful measures to have the

petitioner sentenced” to proper place of detention); Miller,

206 F.2d at 419–20 (discussing the remedy imposed in

Bonner); cf. Brown v. Plata, 131 S. Ct. 1910, 1922–23 (2011)

(upholding order remedying Eight Amendment violations by

ordering state to reduce overcrowding in its prisons by

releasing prisoners if necessary). Given that habeas is not a

“formalistic remedy,” Boumediene, 553 U.S. at 780 (internal

quotation marks omitted), and “must not be circumscribed by

any technical considerations,” Miller, 206 F.2d at 420, it

should come as little surprise that this court has never

engaged in the sort of formalistic, technical line-drawing that

the government’s approach would demand.

Indeed, as Miller illustrates, the near-complete overlap

between these two sorts of challenges ultimately reflects the

fact that in this circuit the underlying rationale for exercising

habeas jurisdiction in either case is precisely the same. Miller

relied on Coffin v. Reichard, 143 F.2d 443 (6th Cir. 1944),

which involved a habeas petition alleging “assaults, cruelties

and indignities from guards and . . . co-inmates.” Id. at 444.

Coffin unequivocally held that a habeas court has jurisdiction

over such conditions of confinement claims and “may remand

with directions that the prisoner’s retained civil rights be

respected.” Id. at 445. In Miller, we cited Coffin for the

proposition that “[a] prisoner is entitled to the writ of habeas

corpus when, though lawfully in custody, he is deprived of

some right to which he is lawfully entitled even in his

confinement, the deprivation of which serves to make his

21

imprisonment more burdensome than the law allows or

curtails his liberty to a greater extent than the law permits.”

Miller, 206 F.2d at 420 (quoting Coffin, 143 F.2d at 445)

(internal quotation marks omitted). We grounded our holding

that the petitioner could challenge the place of his

confinement on this same proposition. See id. Our logic was

straightforward: in either a conditions of confinement or place

of confinement case, the petitioner contends that some aspect

of his confinement has deprived him of a right to which he is

entitled while in custody. The availability of habeas for both

types of challenges simply reflects the extension of the basic

principle that “[h]abeas is at its core a remedy for unlawful

executive detention.” Munaf v. Geren, 553 U.S. 674, 693

(2008); see 28 U.S.C. § 2241(c)(3) (the writ extends to those

prisoners “in custody in violation of the Constitution or laws

or treaties of the United States”). The illegality of a

petitioner’s custody may flow from the fact of detention, e.g.,

Johnson v. Zerbst, 304 U.S. 458, 467–68 (1938), the duration

of detention, e.g., Preiser, 411 U.S. at 487, the place of

detention, e.g., Miller, 206 F.2d at 419, or the conditions of

detention, e.g., Hudson II, 424 F.2d at 855 n.3. In all such

cases, the habeas petitioner’s essential claim is that his

custody in some way violates the law, and he may employ the

writ to remedy such illegality. As a law review note cited in

both Preiser, 411 U.S. at 499, and Wilson, 471 F.2d at 1081

n.7, put it: “Where the specific detention abridges federally

protected interests—by placing petitioner in the wrong prison,

denying him treatment, imposing cruel and unusual

punishment, impeding his access to the courts, and so on—it

is an unlawful detention and habeas lies to release the

petitioner therefrom.” Note, Developments in the Law—

Federal Habeas Corpus, 83 HARV. L. REV. 1038, 1085 (1970)

(emphasis added).

22

This circuit is by no means alone in adopting this

reasoning. Several of our sister circuits have concluded that

an individual in custody may utilize habeas corpus to

challenge the conditions under which he is held. See, e.g.,

United States v. DeLeon, 444 F.3d 41, 59 (1st Cir. 2006) (“If

the conditions of incarceration raise Eighth Amendment

concerns, habeas corpus is available.”); Kahane v. Carlson,

527 F.2d 492, 498 (2d Cir. 1975) (Friendly, J., concurring)

(contending that section 2241 would furnish “a wholly

adequate remedy” for a federal prisoner who sought orders

requiring prison officials to accommodate his First

Amendment right to free exercise of religion); Thompson v.

Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (“This court has

long interpreted § 2241 as applying to challenges to the

execution of a federal sentence, including such matters as the

. . . type of detention and prison conditions.” (internal

quotation marks omitted)); Woodall v. Federal Bureau of

Prisons, 432 F.3d 235, 242 & n.5 (3d Cir. 2005) (holding that

prisoner’s challenge to regulations limiting opportunity for

placement in community confinement could proceed by way

of habeas corpus “even if what is at issue . . . is ‘conditions of

confinement’”); Ali v. Gibson, 572 F.2d 971, 975 n.8 (3d Cir.

1978) (“At most [petitioner’s] claims rise to a possible habeas

attack on the conditions of confinement, cognizable in a

federal habeas action only in extreme cases.”); Coffin, 143

F.2d at 444 (“Any unlawful restraint of personal liberty may

be inquired into on habeas corpus.”); Adams v. Bradshaw, 644

F.3d 481, 482–83 (6th Cir. 2011) (holding that a state

prisoner’s Eighth Amendment challenge to the state of Ohio’s

lethal injection procedures could be brought in habeas); cf.

McNair v. McCune, 527 F.2d 874, 875 (4th Cir. 1975) (“[I]t is

a sufficient statement of federal jurisdiction in habeas corpus

to redress punitive segregation imposed without a hearing for

the relatively innocuous offense of ‘wearing the wrong kind

of clothing.’”).

23

Of course, as the government emphasizes, other circuits

have reached a contrary conclusion. But even if we had

authority to depart from our own precedent, none of these

decisions would provide a compelling reason to do so.

The Fifth Circuit appears to have relied on its own, long-

standing precedent in holding that a habeas petitioner may not

challenge his treatment while in custody. See Cook v.

Hanberry, 592 F.2d 248, 249 (5th Cir. 1979) (“Habeas corpus

is not available to prisoners complaining only of mistreatment

during their legal incarceration.”) (citing Granville v. Hunt,

411 F.2d 9, 12–13 (5th Cir. 1969)). This precedent originally

rested, however, on the now-questionable rationale that the

conditions of confinement are within the discretion of prison

administrators and thus beyond the cognizance of the courts.

See Granville, 411 F.2d at 12; but see, e.g., Procunier v.

Martinez, 416 U.S. 396, 405–06 (1974) (“When a prison

regulation or practice offends a fundamental constitutional

guarantee, federal courts will discharge their duty to protect

constitutional rights.”).

The other circuits that have reached a similar conclusion

appear to have done so on the basis of an even more

questionable rationale, one reflecting a fundamental

misunderstanding of the Supreme Court’s decision in Preiser.

As recounted above, see supra at 13, Preiser imposed a

habeas-channeling rule, not a habeas-limiting rule: the Court

held only that claims lying at the “core” of the writ must be

brought in habeas, and expressly disclaimed any intention of

restricting habeas itself. See Davis v. U.S. Sentencing

Commission, 716 F.3d 660, 662–63 (D.C. Cir. 2013); accord

Woodall, 432 F.3d at 242 n.5; Brennan v. Cunningham, 813

F.2d 1, 4 (1st Cir. 1987); see also Brown v. Plaut, 131 F.3d

163, 168–69 (D.C. Cir. 1997) (“Habeas corpus might . . . be

24

available to bring challenges to . . . prison conditions . . . , but

requiring the use of habeas corpus in such cases would extend

Preiser far beyond the ‘core’ of the writ that Preiser set out to

protect.”). Although the Court made this emphatically clear,

see Preiser 411 U.S. at 499–500, some circuits nonetheless

have read the decision as limiting the sorts of claims that may

be brought in habeas and to preclude prisoners from using the

writ to attack the conditions of their confinement. See

Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991)

(relying on Preiser for the proposition that if a prisoner “is

challenging merely the conditions of his confinement his

proper remedy is under the civil rights law”); McIntosh v.

United States Parole Comm’n, 115 F.3d 809, 811 (10th Cir.

1997) (same); cf. Hutcherson v. Riley, 468 F.3d 750, 754

(11th Cir. 2006) (describing Preiser line of cases as holding

that habeas and section 1983 are “mutually exclusive”). Even

more perplexing, some circuits have done so while

completely overlooking their own post-Preiser precedent

recognizing that conditions of confinement claims sound in

habeas. Compare Kruger v. Erickson, 77 F.3d 1071, 1073 (8th

Cir. 1996) (citing only Preiser in holding that “[i]f the

prisoner is not challenging the validity of his conviction or the

length of his detention . . . then a writ of habeas corpus is not

the proper remedy”), with Willis v. Ciccone, 506 F.2d 1011,

1014 (8th Cir. 1974) (“[H]abeas corpus is a proper vehicle for

any prisoner, state or federal, to challenge unconstitutional

actions of prison officials.”); compare Crawford v. Bell, 599

F.2d 890, 891–92 (9th Cir. 1979) (citing only Preiser and a

district court decision describing Preiser in holding that a

habeas petition challenging “the terms and conditions of [an

inmate’s] incarceration” must be dismissed), with Workman v.

Mitchell, 502 F.2d 1201, 1208 n.9 (9th Cir. 1974) (holding it

to be “fairly well established” that “federal habeas corpus

actions are now available to deal with questions concerning

both the duration and the conditions of confinement”).

25

In sum, although the Supreme Court has left the question

open, the law of this circuit—which is consistent with the

weight of the reasoned precedent in the federal Courts of

Appeal—compels us to conclude that a prisoner may, in a

federal habeas corpus petition, “challenge the conditions of

his confinement.” Wilson, 471 F.2d at 1081. Petitioners here

advance just such a challenge. They raise claims that their

force-feeding at the hands of their jailers constitutes an

“additional and unconstitutional restraint[] during [their]

lawful custody,” Preiser, 411 U.S. at 499, and violates their

fundamental right to religious freedom, see 42 U.S.C.

§ 2000bb-1, thus rendering their “imprisonment more

burdensome than the law allows or curtail[ing] [their] liberty

to a greater extent than the law permits.” Miller, 206 F.2d at

420 (quoting Coffin, 143 F.2d at 445); see also Reed v.

Farley, 512 U.S. 339, 347–48 (1994) (describing availability

of federal habeas corpus for fundamental nonconstitutional

claims). They have therefore brought “a proper claim for

habeas relief” over which the district courts possess subject-

matter jurisdiction. Kiyemba, 561 F.3d at 513. We thus turn to

the question of whether petitioners have established their

entitlement to injunctive relief.

III.

“‘A plaintiff seeking a preliminary injunction must

establish [1] that he is likely to succeed on the merits, [2] that

he is likely to suffer irreparable harm in the absence of

preliminary relief, [3] that the balance of equities tips in his

favor, and [4] that an injunction is in the public interest.’”

Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011)

(alteration in original) (quoting Winter v. National Resource

Defense Council, Inc., 555 U.S. 7, 20 (2008)). We review the

district court’s balancing of these four factors for abuse of

26

discretion, while reviewing de novo the questions of law

involved in that inquiry. Id. at 393.

A.

We begin with the first and most important factor:

whether petitioners have established a likelihood of success

on the merits. Petitioners advance two separate substantive

claims regarding the legality of force-feeding.

Their first and central claim is that the government’s

force-feeding of hunger-striking detainees violates their

constitutionally protected liberty interest—specifically, the

right to be free from unwanted medical treatment, see Cruzan

v. Director, Missouri Department of Health, 497 U.S. 261,

278–79 (1990)—and that the government is unable to justify

the practice of force-feeding under the standard established in

Turner v. Safley, 482 U.S. 78 (1987). In Turner, the Supreme

Court set forth the general test for assessing the legality of a

prison regulation that “impinges on” an inmate’s

constitutional rights, holding that such a regulation is “valid if

it is reasonably related to legitimate penological interests.” Id.

at 89. As the government does not press the issue, we shall,

for purposes of this case, assume without deciding that the

constitutional right to be free from unwanted medical

treatment extends to nonresident aliens detained at

Guantanamo and that we should use the Turner framework to

evaluate petitioners’ claim. But cf. Kiyemba v. Obama, 555

F.3d 1022, 1026 (D.C. Cir. 2009), vacated by Kiyemba v.

Obama, 559 U.S. 131 (2010), modified and reinstated, 605

F.3d 1046, 1048 (D.C. Cir. 2010).

In their briefs, petitioners detail the significant number of

international organizations, medical associations, and public

figures who have criticized the practice of force-feeding

prisoners unwilling to eat. Appellants’ Br. 33–39 (citing, inter

27

alia, World Medical Association, WMA Declaration of Malta

on Hunger Strikers (1991); International Committee of the

Red Cross, Hunger strikes in prisons: the ICRC’s position

(2013); Letter from Senator Dianne Feinstein to Secretary of

Defense Chuck Hagel (June 19, 2013), available at:

http://www.feinstein.senate.gov/public/index.cfm/files/serve/?

File_id=17585d4b-c235-4f32-b957-50648d4e6252). Since

oral argument in this case, a task force organized by the

Institute on Medicine as a Profession and the Open Society

Foundation has issued a scathing report detailing the abuses

of medical ethics in the government’s treatment of detainees

in Guantanamo, Afghanistan, and Iraq, concluding

specifically that doctors who assist in the treatment of hunger-

striking Guantanamo detainees “have become agents of a

coercive and counter-therapeutic procedure that for some

detainees continued for months and years, resulting in untold

pain, suffering, and tragedy for the detainees for whom they

were medically responsible.” Task Force Report, Ethics

Abandoned: Medical Professionalism and Detainee Abuse in

the War on Terror 84 (2013) (submitted by petitioners

pursuant to Fed. R. App. P. 28(j)); see also Denise Grady &

Benedict Carey, Medical Ethics Have Been Violated at

Detention Sites, a New Report Says, N.Y. TIMES, Nov. 5,

2013, at A16 (describing the task force’s report). Given these

authorities—and, we might add, given the government’s own

description of its force-feeding protocol—we have no doubt

that force-feeding is a painful and invasive process that raises

serious ethical concerns.

For petitioners to be entitled to injunctive relief, however,

it is not enough for us to say that force-feeding may cause

physical pain, invade bodily integrity, or even implicate

petitioners’ fundamental individual rights. This is a court of

law, not an arbiter of medical ethics, and as such we must

view this case through Turner’s restrictive lens. The very

28

premise of Turner is that a “prison regulation [that] impinges

on inmates’ constitutional rights” may nonetheless be “valid.”

Turner, 482 U.S. at 89. That is, although “[p]rison walls do

not form a barrier separating prison inmates from the

protections of the Constitution,” they do substantially change

the nature and scope of those constitutional protections, as

well as the degree of scrutiny that courts will employ in

assessing alleged violations. Id at 84; see Price v. Johnston,

334 U.S. 266, 285 (1948) (“Lawful incarceration brings about

the necessary withdrawal or limitation of many privileges and

rights, a retraction justified by the considerations underlying

our penal system.”). Thus, even if force-feeding “burdens

fundamental rights,” Turner, 482 U.S. at 87, Turner makes

clear that a federal court may step in only if the practice is not

“reasonably related to legitimate penological interests,” id. at

89.

The government has identified two penological interests

at stake here: preserving the lives of those in its custody and

maintaining security and discipline in the detention facility.

As the government emphasizes, many courts have concluded

that such interests are legitimate and justify prison officials’

force-feeding of hunger-striking inmates. E.g., In re Grand

Jury Subpoena John Doe v. United States, 150 F.3d 170, 172

(2d Cir. 1998); Garza v. Carlson, 877 F.2d 14, 17 (8th Cir.

1989); Matter of Bezio v. Dorsey, 989 N.E.2d 942, 950–51

(N.Y. 2013); Laurie v. Senecal, 666 A.2d 806, 809 (R.I.

1995). The New York Court of Appeals recently explained

that prison officials faced with a hunger-striking inmate

whose behavior is life-threatening would, absent force-

feeding, face two choices: (1) give in to the inmate’s

demands, which would lead other inmates to “copy the same

tactic, manipulating the system to get a change in conditions”;

or (2) let the inmate die, which is a harm in its own right, and

would often “evoke[] a strong reaction from the other inmates

29

and create[] serious safety and security concern[s].” Matter of

Bezio, 989 N.E.2d at 951 (internal quotation marks omitted);

accord Freeman v. Berge, 441 F.3d 543, 547 (7th Cir. 2006)

(“If prisoners were allowed to kill themselves, prisons would

find it even more difficult than they do to maintain discipline,

because of the effect of a suicide in agitating the other

prisoners.”). Although a handful of state appellate courts have

rejected prison officials’ attempts to force-feed particular

inmates, those courts have largely done so while applying

state law and under unique factual circumstances. See Hill v.

Dept. of Corrections, 992 A.2d 933, 938 (Pa. Commw. Ct.

2010) (recognizing that state’s interests generally “outweigh

any privacy right” claimed by a force-fed inmate, but holding

that state had failed to show inmate’s life “was in imminent

danger absent forced nutrition and hydration”); Thor v.

Superior Court, 855 P.2d 375, 387–88 (Cal. 1993) (holding,

under California law, that quadriplegic prisoner could refuse

surgical procedure that would insert feeding tube into his

stomach where there was “no evidence that allowing him to

do so undermines prison integrity or endangers the public”);

Singletary v. Costello, 665 So.2d 1099, 1109–10 (Fla. Dist.

Ct. App. 1996) (holding that state’s attempt to force-feed

inmate would violate inmate’s state constitutional right to

privacy where there was “no evidence” that inmate’s actions

“undermined the security, safety or welfare within the

prison,” and observing that “[i]n another case, or with

different evidence presented below, a different result may be

reached”). But see Zant v. Prevatte, 286 S.E.2d 715, 717 (Ga.

1982) (holding that prison officials cannot force-feed

mentally competent prisoner with no dependents). Some

states, such as California, have also adopted policies pursuant

to which inmates can escape force-feeding even if their lives

are threatened so long as they clearly and competently refuse

such treatment. See 4 California Correctional Health Care

Services, Inmate Medical Services Polices & Procedures ch.

30

22.2, 4–5, available at http://www.cphcs.ca.gov/docs/

imspp/IMSPP-v04-ch22.2.pdf. But such an approach is not

constitutionally compelled because it fails to similarly achieve

the government’s legitimate penological interests—including,

most obviously, the interest in preserving the inmate’s life.

Thus, the overwhelming majority of courts have

concluded, as did Judge Collyer and as we do now, that

absent exceptional circumstances prison officials may force-

feed a starving inmate actually facing the risk of death. See

Freeman, 441 F.3d at 546; Commissioner of Corrections v.

Coleman, 38 A.3d 84, 95–97 (Conn. 2012) (collecting cases).

Petitioners point to nothing specific to their situation that

would give us a basis for concluding that the government’s

legitimate penological interests cannot justify the force-

feeding of hunger-striking detainees in Guantanamo.

Instead, petitioners attempt to distinguish the many

decisions upholding the lawfulness of force-feeding by tying

their challenge to an attack on the legality of the fact of their

detention itself, arguing that “[t]here cannot be a legitimate

penological interest in force-feeding the Guantanamo Bay

detainees to prolong their indefinite detention” because force-

feeding then simply “facilitates the violation of a fundamental

human right.” Appellants’ Br. 40. But this court has

repeatedly held that under the Authorization for the Use of

Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001),

individuals may be detained at Guantanamo so long as they

are determined to have been part of Al Qaeda, the Taliban, or

associated forces, and so long as hostilities are ongoing. See,

e.g., Al-Bihani v. Obama, 590 F.3d 866, 873–74 (D.C. Cir.

2010); but cf. Ali v. Obama, 736 F.3d 542, 553 (D.C. Cir.

2013) (Edwards, J., concurring in the judgment) (posing the

“troubling question” of “whether the law of th[is] circuit has

stretched the meaning of the” statutes justifying such

31

detention “far beyond [their] terms”). Given that such

continued detention is lawful, force-feeding that furthers this

detention serves the same legitimate penological interests as it

would if petitioners were serving determinate sentences in

state or federal prison.

In reaching this conclusion, we emphasize that we are

addressing only petitioners’ likelihood of success on the

merits, not the actual merits of their claim. 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. Turner, 482 U.S. at 90. 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. Boumediene,

553 U.S. at 779.

Finally, we reject petitioners’ attempt to advance for the

first time in their reply brief, and then again at oral argument,

a very different ground for relief—that the government’s

force-feeding protocol must be enjoined not because force-

feeding is inherently unconstitutional, but because the

government subjects detainees to such treatment before they

are actually at risk. As petitioners’ counsel phrased this

contention at oral argument: “[A] reasonable alternative

would be to not force feed them until . . . they’re at risk of

death or permanent organ injury.” Oral Arg. Tr. 16. But prior

to their reply brief, the only “alternative” petitioners identified

to the current force-feeding protocol was that the government

bring petitioners to trial or set them free. Appellants’ Br. 40.

32

Accordingly, this argument is forfeited. See United States v.

Van Smith, 530 F.3d 967, 973 (D.C. Cir. 2008) (“We require

petitioners and appellants to raise all of their arguments in the

opening brief, and have repeatedly held that an argument first

made in a reply brief ordinarily comes too late for our

consideration.”) (internal quotation marks and citations

omitted). In any event, record evidence appears to contradict

petitioners’ contentions. According to the declaration

submitted by the government, Guantanamo medical staff will

enterally feed a detainee “only . . . when it becomes medically

necessary to preserve a detainee’s life and health.” Decl. of

Commander [Redacted], M.D., 4. 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. For these same

reasons, we also now deny petitioners’ request for

supplemental briefing regarding recent revisions to the

government’s protocol and dismiss their motion for disclosure

of the details of that revised protocol without prejudice to its

reassertion in the district court.

This brings us, then, to petitioners’ second claim—that

the force-feeding protocol violates their rights under the

Religious Freedom Restoration Act (RFRA) because it

prevents them from engaging in communal prayers during

Ramadan. Before discussing the merits of this claim, we must

first address the government’s contention that it has become

moot.

Although it is true, as the government points out, that

Ramadan is now over, and thus petitioners cannot claim that

the force-feeding protocol currently infringes on their

observation of that month, the RFRA claim clearly falls

within the “capable of repetition yet evading review”

exception to the mootness doctrine. See Clarke v. United

33

States, 915 F.2d 699, 704 (D.C. Cir. 1990). Petitioner Dhiab

has undoubtedly satisfied the first of the two required

elements of this exception: because Ramadan lasts only a

month, the challenged aspects of force-feeding that interfere

with communal prayer during this month “[are] in [their]

duration too short to be fully litigated prior to [their] cessation

or expiration.” Id. (quoting Murphy v. Hunt, 455 U.S. 478,

482 (1982)). He has also satisfied the second requirement:

there is a “reasonable expectation that [he will] be subjected

to the same action again.” Id. (quoting Murphy, 455 U.S. at

482). More than ten months after officials first designated him

as a hunger-striker, Dhiab continues to refuse to eat.

Moreover, Dhiab asserts that he plans to continue his strike in

order to receive a “resolution to [his] case,” that he is “not

afraid” of his captors, and that “[i]t would be an honor to die.”

Crider Decl. 15, 17. These facts and statements sufficiently

establish the likelihood that Dhiab will continue to be affected

by the government’s force-feeding protocol this year at

Ramadan if it remains in place and he continues to be

detained. Although the government could release Dhiab

before then, or modify the protocol so as to avoid infringing

on Dhiab’s observation of Ramadan, neither of these

outcomes is sufficiently likely to defeat what is otherwise a

“reasonable expectation” that Dhiab will again be subjected to

this treatment. See Del Monte Fresh Produce Co. v. United

States, 570 F.3d 316, 324 (D.C. Cir. 2009). And because

Dhiab’s claim is not moot, we have no need to decide whether

those of the other petitioners might be. See Military Toxics

Project v. EPA, 146 F.3d 948, 954 (D.C. Cir. 1998) (“If one

party has standing in an action, a court need not reach the

issue of standing of other parties when it makes no difference

to the merits of the case.” (internal quotation marks omitted)).

We agree with the government, however, that the law of

this circuit clearly forecloses petitioners’ RFRA claim. In

34

Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009), we expressly

held that RFRA’s protections do not extend to Guantanamo

detainees, who, as nonresident aliens, do not qualify as

protected “person[s]” within the meaning of that statute. Id. at

532. Congress, we reasoned, intended the term “person” to

“be read consistently with similar language in constitutional

provisions, as interpreted by the Supreme Court at the time

Congress enacted RFRA” in 1993, and held that decisions

such as Johnson v. Eisentrager, 339 U.S. 763 (1950) and

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)

would have led Congress to presume that the term did not

encompass nonresident aliens. Id. at 533; see also Rasul v.

Myers, 512 F.3d 644, 670–72 (D.C. Cir. 2008), vacated by

Rasul v. Myers, 555 U.S. 1083 (2008).

Petitioners argue that Citizens United v. FEC, 558 U.S.

310 (2010), in which the Supreme Court expanded the First

Amendment’s protections of corporate political speech while

also declining to address whether the government might have

a compelling interest in limiting the similar speech of “foreign

individuals or associations,” id. at 362, has so weakened

Rasul’s premise that we are no longer bound by its holding.

But the Supreme Court’s current interpretation of the First

Amendment’s free speech guarantee in no way undermines

our assessment of Congress’s likely understanding of existing

constitutional law in 1993. Moreover, this court recently

rejected a very similar argument in holding that RFRA’s

protections of the free exercise of religion do not extend to

corporations. Gilardi v. U.S. Department of Health and

Human Services, 733 F.3d 1208, 1214–15 (D.C. Cir. 2013). If

nothing in Citizens United compels the conclusion that

corporations are “person[s]” within the meaning of RFRA,

that decision certainly does not compel us to revisit our

conclusion that nonresident aliens are likewise excluded from

RFRA’s protections.

35

B.

We need discuss only briefly the three remaining factors

that govern the decision to grant a preliminary injunction: the

likelihood that petitioners will suffer irreparable harm, the

balance of the equities, and the public interest. See Winter,

555 U.S. at 20. In this circuit, it remains an open question

whether the “likelihood of success” factor is “an independent,

free-standing requirement,” or whether, in cases where the

other three factors strongly favor issuing an injunction, a

plaintiff need only raise a “serious legal question” on the

merits. Sherley, 644 F.3d at 393, 398. But we have no need to

resolve this question here because the remaining factors do

not, in any event, weigh in petitioners’ favor. The primary

“purpose of a preliminary injunction is to preserve the object

of the controversy in its then existing condition—to preserve

the status quo.” Doeskin Products, Inc. v. United Paper Co.,

195 F.2d 356, 358 (7th Cir. 1952); see generally National

Ass’n of Farmworkers Organizations v. Marshall, 628 F.2d

604, 613–16 (D.C. Cir. 1980). In this case, even if petitioners

might eventually prevail in their challenge to the

government’s force-feeding protocol, we see especially good

reasons for preserving the status quo by denying petitioners’

request. Were we to now conclude that a preliminary

injunction should issue, and then the district court, this court,

or the Supreme Court later determined that the petitioners’

claims lacked merit, the petitioners could very well die before

the government would ever receive the benefit of that

decision. But were we to uphold the district court’s denial of a

preliminary injunction, and it was later determined that force-

feeding as practiced at Guantanamo violates petitioners’

rights, petitioners would suffer by being compelled to endure

force-feeding or the threat of force-feeding in the interim, but

they would ultimately be able to engage in an uninterrupted

hunger strike as they wish. Given that the risk of error is

36

greater if a preliminary injunction is granted than if it is

denied, we conclude, as did Judge Collyer, that the balance of

equities and public interest support denying petitioners’

request for interim relief.

IV.

For the forgoing reasons, we affirm the district courts’

denials of petitioners’ applications for a preliminary

injunction.

So ordered.

WILLIAMS, Senior Circuit Judge, dissenting: As the

majority aptly explains, Maj. Op. at 6-11, the current state of

Congress’s back-and-forth with the courts over federal

jurisdiction to consider claims by detainees at Guantanamo is

this: claims that sound in habeas may be heard; all others may

not. Today we decide which category embraces a challenge to

a detainee’s conditions of confinement. The majority

concludes that such a claim sounds in habeas. I disagree.

Although we once toyed with that idea (in dictum), we have

never held habeas to reach a prisoner’s conditions of

confinement. And the majority provides no persuasive reason

why we should reach that decision for the first time today.

Congress has repeatedly and forcefully sought to withdraw the

federal courts’ jurisdiction over Guantanamo detainees. I

would not enlarge the writ to encompass a novel theory in the

face of such clear congressional intent.

* * *

The Supreme Court’s most recent position on whether

habeas encompasses prisoner challenges to their conditions of

confinement has been one of agnosticism. Maj. Op. at 12-14

(citing Preiser v. Rodriguez, 411 U.S. 475 (1973), and Bell v.

Wolfish, 441 U.S. 520 (1979)). The majority thus turns to

decisions of this court, finding Hudson v. Hardy, 424 F.2d

854 (D.C. Cir. 1970), a precedent for the view that habeas

covers such claims. Maj. Op. at 14-17. I find no such holding

in Hudson.

Hudson’s background is simple. In an action styled a

petition for a declaratory judgment, Hudson sought an order

granting him certain privileges, release from a control cell, or

outright release from custody. In our initial pass at the case,

we held that the district court had been too hasty in granting

summary judgment against Hudson, applying the standards

for summary judgment with a “strict literalness” that was

2

inappropriate for a pro se prisoner. Hudson v. Hardy, 412

F.2d 1091, 1094-95 (D.C. Cir. 1968). We then granted the

defendants’ request for rehearing, in order to consider not

only the merits but also defendants’ claim that Hudson’s

transfer to Leavenworth had mooted the case. Hudson, 424

F.2d at 855-56. We adhered to our initial decision that the

district court had been too hasty, but added an instruction to

that court to canvas the facts relevant to mootness. In

articulating the district court’s mission on remand, we

discussed a number of circumstances that might avert

dismissal for mootness.

There are many reasons to reject the view that our

theorizing in Hudson established a precedent extending

habeas to conditions of confinement—so many that the reader

deserves a short road map. First, we left completely

unresolved the question whether the federal courts had

jurisdiction at all; that being so, we were in no position to

issue a final merits ruling. Second, we noted that 42 U.S.C.

§ 1983 was available to the plaintiff; we thus had no need to

examine whether § 1983 or habeas best fitted plaintiff’s

claims, to the extent that they might have related to conditions

of confinement. Third, of the various circumstances that we

suggested might save the case from mootness, it is doubtful

whether any can properly be characterized as involving

“conditions of confinement” (a phrase we never used in

Hudson).

First we noted that if plaintiff sought money damages, the

case was not moot. 424 F.2d at 855. But because we were

uncertain whether he sought damages, we went on to discuss

the situation if he did not, saying that even in that case “it is

by no means certain that the case has become moot.” Id. In

remanding to the district court, we identified a handful of

3

reasons Hudson might face ongoing injury; not one of those

reasons depended on our observation about habeas, id. at 855

n.3, which was therefore dictum rather than holding.

Indeed, nowhere in the opinion did we purport to actually

find jurisdiction. Although we didn’t explicitly invoke the

principle and practice that in determining jurisdiction a court

assumes the validity of plaintiff’s merits claims, see, e.g.,

Coleman v. Miller, 307 U.S. 433, 446 (1939); Doe v. Harris,

696 F.2d 109, 113-14 n.7 (D.C. Cir. 1982); Smith v. Bd. of

Comm’rs of D.C., 380 F.2d 632, 634 (D.C. Cir. 1967); see

also Linda R.S. v. Richard D., 410 U.S. 614, 618 (1973)

(applying the principle without stating it), we certainly never

abjured the principle, and our discussion was fully consistent

with the practice.

And with good reason. For us to have applied substantive

law before finding jurisdiction would have flouted the rule

that on any appeal “the first and fundamental question is that

of jurisdiction.” Steel Co. v. Citizens for a Better

Environment, 523 U.S. 83, 94 (1998) (quoting Ex parte

McCardle, 7 Wall. 506, 514 (1869)). “Every federal appellate

court has a special obligation to satisfy itself not only of its

own jurisdiction, but also that of the lower courts in a cause

under review.” Id. at 95 (internal quotation marks omitted).

The rule long antedated Hudson. “This Court’s insistence that

proper jurisdiction appear begins at least as early as 1804.”

Id. And the principle applies as much to mootness as to any

other issue of subject-matter jurisdiction. Already, LLC v.

Nike, Inc., 133 S. Ct. 721, 726-27 (2013). Of course

jurisdiction may depend on the merits claims; the

longstanding solution is to assume the merits of plaintiff’s

position. We have no basis for now declaring that our

4

decision in Hudson deviated from these principles:

jurisdiction first, and for that analysis, merits merely assumed.

Recognizing that an absence of jurisdiction would

preclude Hudson from having precedential effect, the majority

seeks to characterize the merits of Hudson’s claim as itself a

jurisdictional question, so that the Hudson court (permissibly)

resolved it before resolving mootness. Maj. Op. at 16. Some

elements of 28 U.S.C. § 2241 doubtless are jurisdictional. For

example, issuance of the writ requires (absent waiver)

personal jurisdiction over the custodian, Rumsfeld v. Padilla,

542 U.S. 426, 434 & n.7, 442 (2004); id. at 451-52 (Kennedy,

J., concurring), and subject-matter jurisdiction depends on the

petitioner’s being in custody, Maleng v. Cook, 490 U.S. 488,

490, 493-94 (1989). But that does not mean that a claim’s

cognizability under habeas is also jurisdictional. While the

Court in Rasul v. Bush, 542 U.S. 466 (2004) (decided the

same day as Padilla), rejected the government’s defense that

federal courts lacked habeas jurisdiction beyond the United

States’ sovereign territory, it nowhere suggested that the

merits of whether a claim is cognizable in habeas is itself

jurisdictional. The majority’s attempt to analogize habeas to

federal question jurisdiction similarly confuses merits and

jurisdiction. Where a claim “will be sustained if the

Constitution and laws of the United States are given one

construction and will be defeated if they are given another,”

the issue is one of merits, not jurisdiction. Steel Co., 523 U.S.

at 89 (quoting Bell v. Hood, 327 U.S. 678, 685 (1946)).

The majority reads the discussion of potential alternative

grounds for jurisdiction in Bell v. Wolfish to stand for the

proposition that the scope of habeas is normally a

jurisdictional issue. Maj. Op. at 16 (citing 441 U.S. at 527

n.6). All I can extract with confidence from that footnote is

5

that in meeting its obligation to be sure of jurisdiction, the

Court found 28 U.S.C. § 1331 sufficient and thus saw no need

even to consider whether habeas’s scope was a merits or a

jurisdictional question. Especially given the courts’ loose

usage of “jurisdiction” before the last decade, see Kontrick v.

Ryan, 540 U.S. 443 (2004), I am skeptical that offhand

references to jurisdiction in a footnote prove that habeas’s

exact scope is a jurisdictional question. Nor does the

majority’s reference to Kiyemba v. Obama, 561 F.3d 509

(2009), shed light on the correct reading of Hudson; our

holding there merely reflects Congress’s enactment of

§ 2241(e)(2) and the Supreme Court’s holding in Boumediene

v. Bush, 553 U.S. 723 (2008), which together made the scope

of habeas a jurisdictional issue for Guantanamo detainees by

divesting the courts of jurisdiction to grant any non-habeas

relief. It tells us nothing about whether a court’s reading of

the habeas statute in effect in the Hudson era had any

jurisdictional character.

Given that the Hudson court never suggested that its

ruminations on Hudson’s possible causes of action touched on

jurisdiction, and that the habeas statute in effect at the time

used no jurisdictional language, see 28 U.S.C. § 2241 (1970),

there seems no reason to suppose that Hudson’s decision to

remand for a mootness determination constituted a resolution

of any jurisdictional questions that habeas may entail.

But even if we put the jurisdictional question aside,

Hudson’s claim that officials of the District of Columbia had

subjected him to “‘unjust and cruel’ disciplinary action,” 412

F.2d at 1092, was, as to state officials and those of the District

of Columbia, the sort of claim that could be brought under 42

U.S.C. § 1983. E.g., Edwards v. Sard, 250 F. Supp. 977, 978

(D.D.C. 1966). Twice in the opinion we explicitly recognized

6

the availability of § 1983. 424 F.2d at 855 & n.3. Once

again, I see precisely nothing that turned on classifying

Hudson’s claims—insofar as they may have addressed

conditions of confinement—as sounding in habeas.

Finally, regardless of the unresolved status of our

jurisdiction and the availability of § 1983, Hudson is quite

unclear whether it addresses conditions of confinement at all.

In order to “sketch” the principles we thought should guide

the mootness inquiry, we reviewed a number of possible

claims that might have survived cessation of the allegedly

unlawful conduct and the plaintiff’s removal from the

defendants’ reach. Id. at 856. Those claims stemmed from

the fact that a prisoner’s “disciplinary record may follow him

throughout the prison system.” Id. It therefore might “affect

his eligibility for parole.” Id. Such eligibility of course

presents a classic subject of habeas, a claim that would be

“squarely within th[e] traditional scope of habeas corpus,”

Preiser, 411 U.S. at 487. See Peyton v. Rowe, 391 U.S. 54

(1968) (cited by Hudson, 424 F.2d at 856). We also mused

that Hudson’s prior discipline might compound his future

punishment, 424 F.2d at 856. But as an example of future

punishment we pointed to Hudson’s transfer to the prison at

Leavenworth. Id. at 856 & n.8. As we had decided a few

years earlier that habeas is available to challenge “not only the

fact of confinement but also the place of confinement,” Lake

v. Cameron, 364 F.2d 657, 659 (D.C. Cir. 1966) (emphasis

added), this may well have been the root of our speculation

that relief was still possible. We concluded that “[i]f

[Hudson] desires that the case be treated as a petition for

habeas corpus, the court should inform itself of the extent to

which appellant is, or is likely to be, still subject to disabilities

because of the unlawful acts alleged.” 424 F.2d at 856.

Assuming we reached a holding on habeas, it was that it

7

encompassed the “disabilities” we specified—examples fully

in line with historical habeas practice—not the loose talk

about “form of confinement” that we consigned to a footnote,

id. at 855 n.3.

In short, in framing the district court’s future

jurisdictional inquiry, we tossed up a salad of possible merits

claims. This was a perfectly proper way to guide the district

court’s exploration of mootness. But that does not mean that

any of these speculations constituted a holding. Even

assuming the court meant habeas to encompass conditions of

confinement, we had neither jurisdiction nor occasion to settle

any substantive legal issue, and in the two short pages of F.2d

that Hudson occupies (other than caption, headnotes, etc.), I

do not see that we did so.

And I also agree with the majority’s acknowledgement

that its other cases fail to do so. Maj. Op. at 17. Two of the

cases, Miller v. Overholser, 206 F.2d 415 (D.C. Cir. 1953),

and Creek v. Stone, 379 F.2d 106 (D.C. Cir. 1967), see Maj.

Op. at 18, address conditions of confinement that “vitiate the

justification for confinement.” 379 F.2d at 109; 206 F.2d at

419 (claim renders confinement “not authorized by the

statute”). If the basis for confinement is eliminated altogether,

outright release would be the remedy, and the petition would

fall within the mine run of habeas challenges. Miller, for

example, involved a civil commitment statute intended to

rehabilitate sex offenders. The court held that Miller’s

confinement with the criminally insane and without treatment

was therefore a confinement “not authorized by the statute,”

rendering his confinement illegal. 206 F.2d at 419. But the

decision was clear that it would apply only in cases that

challenge the “legal validity of confinement,” id., which

petitioners do not do. Cf. Maj. Op. at 30.

8

Creek too depends on the proposition that the challenged

conditions vitiate the justification for confinement. 379 F.2d

at 110. And perhaps more importantly, the court in Creek

lacked jurisdiction because the petitioners’ transfer out of the

conditions complained of rendered the case moot. Id. By

now it should be clear that the absence of jurisdiction is a

common theme among the majority’s cases. United States v.

Wilson, 471 F.2d 1072 (D.C. Cir. 1972), is no different. The

majority relies on Wilson for the proposition that petitioner

“unquestionably” may challenge his conditions of

confinement in habeas. Maj. Op. at 17-18 (quoting Wilson,

471 F.2d at 1081). Yet right before that observation, the

court held that it lacked jurisdiction over Wilson’s petition,

concluding that “no remedy is available in this Court” because

the place of confinement was not within its territorial

jurisdiction. 471 F.2d at 1081 (citing Ahrens v. Clark, 335

U.S. 188 (1948)). Here again Steel Co.’s teachings are

critical. “For a court to pronounce upon the meaning or the

constitutionality of a state or federal law when it has no

jurisdiction to do so is, by very definition, for a court to act

ultra vires.” Steel Co., 523 U.S. at 101-02. I see no basis for

relying on ultra vires statements to determine the appropriate

bounds of habeas.

More recent cases from this circuit suggest that the

availability of habeas to challenge conditions of confinement

is a murkier question than the majority’s cases suggest. In

Blair-Bey v. Quick, for example, we entertained the possibility

that habeas itself “might be available” for challenges to prison

conditions. 151 F.3d 1036, 1039-42 (D.C. Cir. 1998) (Wald,

Williams & Tatel, JJ.) (emphasis added). We solved the

problem by saying, “Such claims, if they are permissibly

brought in habeas corpus, would have to be subject to the

PLRA’s filing fee rules.” Id. at 1042 (emphasis added). It

9

would be odd to treat 1998’s mere possibility as a rule clearly

established by the time of the MCA, less than ten years later.

Yet that is exactly the conclusion that the majority reaches.

Because not one of these cases holds that habeas

encompasses claims based on the conditions of a detainee’s

confinement, I conclude that no precedent of ours controls the

outcome of this case.

* * *

The majority soft-pedals the distinction between

challenges to the fact or place of confinement and ones to

conditions of confinement by observing that one remedy

unquestionably available under habeas (in this case, the

prisoner’s release) “may” redress both claims, so that the

distinction between the claims is “largely illusory.” Maj. Op.

at 19-20. After all, the majority explains, a court can always

order release if the petitioner’s custodian does not remedy the

defect in the place of confinement. But to suggest that courts

should feel complacent in expanding an ancient writ—

confined for centuries to attacks on the fact or place of

confinement—to reach any unlawful aspect of the

confinement merely because the illegality could, in extremis,

be cured by an order of release, seems in effect to discard

history as a guide.

In any event, a focus on remote, unsatisfactory and

implausible remedies of release is a far cry from how an

inquiry into the availability of habeas normally proceeds. As

the majority observes, Maj. Op. at 9, in determining the scope

of our jurisdiction in Kiyemba we first needed to assess the

effect of the Supreme Court’s decision in Boumediene.

Notwithstanding the fact that an order of release would have

10

sufficed to grant the Kiyemba petitioners’ requested relief, we

reviewed the congressional authorization to consider their

claims as well as the traditional boundaries of habeas.

Kiyemba, 561 F.3d at 512-13. In doing so, we followed the

path laid out by the Supreme Court, which determines its

habeas authority not by reference to the potential remedy, but

instead by reviewing historical practice under statutory and

common law. INS v. St. Cyr, 533 U.S. 289, 305-08 (2001);

see Boumediene, 553 U.S. at 739-52; Rasul, 542 U.S. at 473-

84. Thus the majority’s focus on remedies seems completely

orthogonal to the method by which the Supreme Court

determines the limits of habeas; it should not influence our

decision here.

This case itself illustrates the skewed fit between a

substantive attack on conditions of confinement and a remedy

of release. The petitioners understandably never seek “the

writ’s more traditional remedy of outright release,” Maj. Op.

at 19. See J.A. 1, 3 (requesting injunction prohibiting force-

feeding); J.A. 158 (requesting injunction prohibiting alleged

deprivation of right to communal prayer); Aamer Br. 5

(requesting both forms of injunctive relief). And the majority,

rightly acknowledging the legality of the petitioners’

detention, Maj. Op. at 30, focuses only on whether to enjoin

the practice of force-feeding. The theoretical effectiveness of

an implausible remedy seems a thin basis for shoehorning

litigation over conditions of confinement into habeas.

* * *

Under the majority’s view, it need not consider

petitioners’ alternative theories supporting jurisdiction, but I

must. They are no more convincing. Relying on a pair of

cases from the Seventh Circuit, petitioners first contend that

11

because the force-feeding protocol requires transfer from

“communal living quarters” to “single cell operations,” it

constitutes a quantum change in his level of custody,

rendering his petition cognizable in habeas. Aamer Br. 24-

25. They quote the Seventh Circuit as follows: “If the

prisoner is seeking what can fairly be described as a quantum

change in the level of custody—whether outright freedom, or

freedom subject to the limited reporting and financial

constraints of bond or parole or probation, or the run of the

prison in contrast to the approximation to solitary confinement

that is disciplinary segregation—then habeas corpus is his

remedy.” Graham v. Broglin, 922 F.2d 379, 381 (7th Cir.

1991). But they omit the critical next sentence: “if [the

petitioner] is seeking a different program or location or

environment, then he is challenging the conditions rather than

the fact of his confinement and his remedy is under civil rights

law, even if, as will usually be the case, the program or

location or environment that he is challenging is more

restrictive than the alternative that he seeks.” Id. at 381.

Putting aside the fact that this court has not recognized the

“quantum change” theory, the petition here falls squarely

within the claims described by the second sentence; he seeks

only an alteration to his program and thus his claims sound in

civil rights law, even under Graham. Accordingly,

§ 2241(e)(2) bars Aamer’s claims. Al-Zahrani v. Rodriguez,

669 F.3d 315, 319 (D.C. Cir. 2012).

Aamer also asserts that we have jurisdiction because

force-feeding constitutes a “severe restraint[] on individual

liberty.” Aamer Br. at 26-27 (citing Hensley v. Mun. Court,

San Jose Milpitas Judicial Dist., Santa Clara Cnty., 411 U.S.

345, 351 (1973)). While it is true that habeas’s custody

requirement can be met by restraints falling short of

incarceration (in Hensley, the Court allowed a petition by a

12

defendant released on his own recognizance pending the start

of his challenged sentence), it doesn’t follow that any liberty

interest enjoying protection under the Fifth Amendment, e.g.,

the interest in resisting involuntary subjection to

pharmaceuticals, Sell v. United States, 539 U.S. 166, 177-83

(2003), is a liberty protected by habeas. Petitioners’

characterization of the affected values as liberty interests is

therefore not enough to create habeas jurisdiction. See Janko

v. Gates, No. 12-5017, slip op. at 17-19 (D.C. Cir. Jan. 17,

2014).

* * *

I close with a brief consideration of where we are and

how we got here. In § 7 of the MCA Congress sought to all

but extinguish federal courts’ jurisdiction to hear claims by

detainees at Guantanamo. Subsection 2241(e)(1) purported to

remove all habeas corpus jurisdiction over such aliens;

subsection (e)(2) eliminated all other jurisdiction, except for

the judicial process that Congress had previously established

for review of executive branch decisions on the lawfulness of

detention. See Maj. Op. at 7-8. By the two subsections taken

together, then, Congress sought (with the exception noted) to

exclude Guantanamo detainees from United States courts.

In Boumediene the Supreme Court held that subsection

(e)(1) violated the Suspension Clause, 553 U.S. at 733, 771,

792, but it did not address whether the MCA was valid insofar

as it ousted courts from habeas jurisdiction not protected by

that clause. We answered this question in Kiyemba, 561 F.3d

at 512 n.2, interpreting Boumediene to have struck down the

MCA’s attempt to withdraw habeas jurisdiction over detainees

at Guantanamo in its entirety, regardless of whether the

suspension clause required that invalidation. That decision of

13

course binds this panel, though it self-evidently opens the

courts to actions by detainees under circumstances where

Congress intended that they be shut (this case being one

example), and was concededly not in any way compelled by

Boumediene. See id. at 512; id. at 523 (Griffith, J., concurring

in the judgment in part and dissenting in part). Yet although

Kiyemba restored habeas to its “status quo ante” the MCA, id.

at 512 n.2, nothing in that decision requires that we further

expand the writ to encompass habeas claims that did not

predate the MCA.

The majority does precisely that. To determine just how

much the courts will open themselves to habeas independently

of the Suspension Clause’s constitutional pressure, it relies on

our reflections in Hudson—a case in which we had not found

any federal court jurisdiction, where any discussion of the fine

points of habeas versus § 1983 was unnecessary, and where it

is unclear whether our speculation about plaintiff’s claims

even addressed conditions of confinement. Because neither

Hudson nor any other case of ours establishes the availability

of a conditions of confinement claim under habeas, Kiyemba’s

restoration of the status quo ante does not compel us to

recognize such a claim. And Congress has made quite clear

that we shouldn’t. Subsection (e)(1) may be a dead letter, but

that does not compel us to ignore Congress’s intent behind

subsection (e) as a whole, which unmistakably sought to

prevent the federal courts from entertaining claims based on

detainees’ conditions of confinement. Cf. Janko v. Gates, No.

12-5017, slip op. at 10 & n.4 (looking to (e)(1) to interpret

(e)(2)). Such evident congressional intent would seem to

counsel a cautious rather than a bravura reading of Hudson.

Respectfully dissenting, I would affirm the district courts’

dismissal of the petitions for want of jurisdiction.