                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA

____________________________________
                              :
ABU WA’EL (JIHAD) DHIAB,      :
                              :
          Petitioner,         :
                              :
     v.                       :
                              :
BARACK H. OBAMA, et. al.,     :               Civil Action No. 05-1457 (GK)
                              :
          Respondents.        :
______________________________:

                                       ORDER

      During a lengthy bench conference at the status hearing

held on May 21, 2014, the Court strongly suggested that the

Parties   come     to    a   compromise      about   the    procedures      used    to

enterally    feed       Petitioner    Dhiab    during      the   pendency    of    his

Application       for   Preliminary    Injunction.      Mr.      Dhiab’s    physical

condition was swiftly deteriorating, in large part because he

was refusing food and/or water.

      Mr. Dhiab has indicated his willingness to be enterally

fed, if it could be done at the hospital in Guantánamo Bay, if

he   could   be    spared     the    agony    of   having    the   feeding     tubes

inserted and removed for each feeding, and if he could be spared

the pain and discomfort of the restraint chair.

      If he could have been enterally fed in that manner, it

would have then been possible to litigate his plea to enjoin

certain practices used in his force feedings in a civilized and
legally appropriate manner. The Department of Defense refused to

make these compromises.

        The Court is now faced with an anguishing Hobson’s choice:

reissue another Temporary Restraining Order (“TRO”) despite the

very real probability that Mr. Dhiab will die, because he has

indicated a continuing desire to refuse to eat and/or drink

liquids,    or    refuse    to    issue   the     TRO   and    allow      the    medical

personnel on the scene to take the medical actions to keep Mr.

Dhiab    alive,    but     at    the   possible     cost      of   great      pain    and

suffering.

        The Court is in no position to make the complex medical

decisions    necessary      to    keep    Mr.   Dhiab    alive.         Thanks   to   the

intransigence of the Department of Defense, Mr. Dhiab may well

suffer unnecessary pain from certain enteral feeding practices

and forcible cell extractions. However, the Court simply cannot

let Mr. Dhiab die.

        The Court does, however, remind all personnel that they

should abide by their own Standard Operating Protocols, and that

the   standard     for     enteral     feeding     is   whether         Mr.   Dhiab    is

actually    facing   an     “imminent      risk    of   death      or    great   bodily

injury.”

        Moreover, in an effort to ensure that any suffering by Mr.

Dhiab is not prolonged, the Court will issue a scheduling order

                                          –2–
tomorrow to facilitate the speedy exchange of discovery such

that the Court can reach the merits of Mr. Dhiab’s Application.

     For all the reasons above, and based on the entire record

herein, it is hereby

     ORDERED, that the Temporary Restraining Order in this case

will not be reissued.



                                      /s/_________________________
May 22, 2014                         Gladys Kessler
                                     United States District Judge


Copies to: attorneys on record via ECF




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