The solution: they will only force-feed the detainees “before dawn and after sunset.” Seriously.
Petitioners also cannot establish irreparable injury, as Petitioners’ arguments in support of emergency relief are based on false and meritless factual allegations. First, Petitioners incorrectly speculate that Respondents’ enteral feeding policies will interfere with their upcoming observance of Ramadan because they will not be able to fast from sunup to sundown. Consistent with long-standing practice, however, absent any unforeseen emergency or operational issues, Joint Task Force-Guantanamo (“JTF-GTMO”) plans to feed all detainees, including detainees undergoing enteral feeding, before dawn and after sunset in order to accommodate their religious practices during Ramadan.
Note this brief was not authored by John Yoo. Here is how the brief describes the “enteral feeding”:
Enteral feeding is administered in a humane manner through a nasogastric tube, and only when medically necessary to preserve the detainee’s health or life. Id. ¶ 12. The nasogastric tubes are inserted only by physicians or credentialed registered nurses who have received appropriate training. Id. When inserting nasogastric tubes, a lubricant or (if requested by the detainee) olive oil is applied to the sterile tube. Id. ¶ 13. A topical anesthetic such as lidocaine is offered to minimize any pain, but the detainee may decline it. Id. Anesthetic throat lozenges are also made available to the detainees if they so choose. Id. ¶ 15. JTF-GTMO uses 8, 10, and 12 french-sized tubes, which are smaller than the tubes used by the Bureau of Prisons. Id. ¶ 14. The nasogastric tube is inserted down into the stomach slowly and directly. Id. The process is never undertaken in a fashion intentionally designed to inflict pain or harm on the detainee. Id.
Each detainee receives an appropriate quantity and type of nutritional formula tailored to the detainee’s specific needs. Id. at ¶ 15. To ensure the safety of the guard staff, medical staff, and the detainee, enteral feedings are conducted in a restraint chair. Id. ¶¶ 17-18. This process usually lasts 30 to 40 minutes, and a detainee is kept in the chair only for the time required to administer the nutritional formula and an additional observation period to ensure digestion.
So human they are restrained for 40 minutes in a chair.
Consider the section of the brief that balances the harms. The government asserts that they are helping the detainees so they don’t starve themselves.
When the choice presented is to stand by and watch as Petitioners starve themselves and their health declines, or to continue providing them essential nourishment and care, there is no disputing where the balance of interests lies. If injunctive relief is granted and Petitioners must be allowed to refuse food and lay waste to their bodies, even to the point of death, then above and beyond the irreparable harm they may do to themselves, Respondents will suffer harm in several respects. First, Respondents suffer harm if they are prohibited from administering treatment that, in their professional medical judgment, they are obligated to provide to individuals, held in their custody, for whose health and well-being they are responsible. Further injury will befall Respondents as any deaths of hunger-striking detainees will undermine the security and good order of the detention facility, threatening the safety of detainees and prison personnel alike. On the other side of the scale, the “harm” to Petitioners if their request for injunctive relief is denied is the preservation of their health and well-being through the humane (and religiously observant) administration of essential nutritional and medical care.
Wow. I hope the administration lawyer who signed that brief had a stiff drink afterwards–I doubt that is what he or she signed up for when accepting the commission.