In his commencement address at West Point on May 28, President Obama said, “What makes [America] exceptional is not our ability to flout international norms and the rule of law, it is our willingness to affirm them through our actions. And that’s why I will continue to push to close Gitmo—because American values and legal traditions do not permit the indefinite detention of people beyond our borders…Which brings me to the fourth and final element of American leadership. Our willingness to act on behalf of human dignity.”
To protest their indefinite detention at Guantanamo, many prisoners have engaged in hunger strikes, including Abu Wa’el (Jihad) Dhiab who is currently petitioning Judge Gladys Kessler to end his force-feedings in a restraint chair. Dhiab has been a prisoner at Guantanamo for 12 years, has never been charged with a crime, and was formally cleared for release in 2009. In 2005, when 131 prisoners were on hunger strike, the Department of Defense (DoD) responded by importing 25 “emergency restraint chairs,” in which prisoners could be restrained by hands, feet, head, and torso and force-fed via a naso-gastric tube. Use of the restraint chairs ultimately broke the mass hunger strike, although another large-scale hunger strike occurred in 2013, and as many as two dozen prisoners may still be on hunger strike at Guantanamo. Restraint chair force-feeding is substantially the same as that carried out by the KGB in former Soviet prisons—a method President George Bush’s Council on Bioethics described simply as “torture” in 2003.
After almost 10 years of force-feeding at Guantanamo, it is (finally) in front of a federal district judge, Gladys Kessler. The hearing (on remand from the US Court of Appeals for DC) is ongoing. So far three orders have been issued, and the next hearing is scheduled for June 15. On May 16, Judge Kessler ordered that medical records and videotapes of forcible cell extractions and enteral feedings be produced, and ordered that no enteral feedings be done until May 21. This was a remarkable order, the first in the 10 year history of routine force-feeding at Guantanamo that any court has enjoined its use.
Dhiab is not opposed to all enteral feeding, only to forced feeding. He agreed to be enterally fed “if it could be done at the hospital in Guantanamo 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.” This would permit, as Judge Kessler noted, the litigation of his “plea to enjoin certain practices used in his force feedings [to proceed] in a civilized and legally appropriate manner.” After a lengthy hearing, the DoD refused.
Judge Kessler described the DoD’s refusal as presenting her with “an anguishing Hobson’s choice: to reissue another TRO “despite the very real probability that Mr. Dhiab will die…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.” Kessler’s May 22 order says, “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 next day Judge Kessler issued her third order, requiring the government to produce medical records and videotapes by June 10 and 13 respectively.
It seems reasonable to conclude that Judge Kessler made a mistake in characterizing her choices as only two. This is because she had a third choice: to continue the TRO against force-feeding, while permitting the voluntary feeding Dhiab had agreed to. This would have permitted the military to keep the prisoner alive during the hearing, and would have also prevented further abusive force-feeding. Perhaps she made this decision because she really did think that it involved “complex medical decisions.” In fact no medical decisions at all are involved; assisted voluntary feeding at the hospital is not complicated at all, and, unlike forced feeding, is consistent with medical ethics. The core decision is legal: is there a legal justification for force-feeding a prisoner who is willing to be fed voluntarily? Certainly neither of the justifications previously offered by the DoD would apply: preventing suicide (or preserving life) and maintaining prison order. What seems to be at stake with the DoD is taking the position that no one is going to tell them how to run their prison at Guantanamo; and the way they run it is to use force-feeding as punishment and a method of asserting dominance over the prisoners. In this respect, Judge Kessler’s most important order is for the DoD to produce the videotapes of the forcible cell extractions and subsequent enteral feedings between April 9, 2013 and February 19, 2014. These tapes (as well as the currently classified protocols governing force-feeding) should, of course, also be made available to the public. It will not take a physician to determine from the tapes whether forced cell extraction followed by forced feeding in a restraint chair is a violation of basic human rights and human dignity, including international human rights law as codified in Common Article 3 of the Geneva Conventions.
The videotapes of the forced cell extractions and the forced feedings of Mr. Dhiab will show, as President Obama himself said a year ago, that force-feeding in this manner violates our basic values: “Look at our current situation, where we are force-feeding detainees who are…on hunger strike…Is this who we are?…Is that the America we want to leave our children? Our sense of justice is stronger than that.” The President could, of course, order the end to force-feeding at Guantanamo. Since he has not (and since the military physicians at Guantanamo have not taken medical ethics seriously), it is now up to Judge Kessler.