I enjoyed Steve’s post, although I think the “nobody cares anymore” premise is largely correct, if by “nobody,” we mean the public. Perversely, this is a function of Guantanamo’s age. Injustices become more tolerable with time, not less. If an American is 27 or younger, Guantanamo has existed throughout the entire run of her adult consciousness. Things that have always been so must presumptively be okay. Things that are still so six years after Mr. Obama was elected must also be okay.
A comment on the force feeding cases. I keep thinking we are missing the mark on this. The analogy to federal prison is wrong, and the notion that the government can hold EPW throughout the (necessarily perpetual) duration of a war against a common noun, but avoid the embarrassment of the prisoner’s death, is deeply wrong. What is missing from the debate, it seems to me, is this: If a prisoner remains at Guantanamo today, uncharged, then the only remaining theory justifying his detention is that he is an enemy belligerent in armed conflict in which active hostilities persist. If he has not been convicted of a war crime, then the whole force of Geneva and the UCMJ is that such a prisoner is a person of honor: his treatment may be Spartan, but he is entitled to the same dignity as a soldier in our own armed forces.
Strapping a man to a restraint chair, and forcing a tube down his nose, and then pumping fluid into his body cavity, against his will, is not consonant with that dignity. The honorable enemy soldier — which in law Aamer must be presumed to be — has a right not to be subject to that indignity. I don’t know anything in military law that lets a judge decide to bless that sort of physical assault, because she decides it is on the whole beneficent.
Kessler is completely wrong to imagine that she is entitled to strike a balance in favor of “preserving his life” if that means disregarding the honorable treatment that is Aamer’s due. To the soldier, some things are more important than life; among them, honor. If the enemy soldier is competent, and as a matter of personal, peaceful prerogative, he believes Guantanamo is dishonorable, and decides no longer to participate in it in the only way left open to him, then our government (and by extension, we), have no right to “preserve his life” by assaulting his body. What we are really preserving is ourselves — from embarrassment for the consequences of our actions. We may detain the enemy soldier to prevent him from doing what honorable soldiers do – return to the battlefield – but our courts should recognize that it is unlawful (not to mention cowardly) for us to use the enemy soldier’s body as a salve for our own embarrassment.
Sabin Willett is a partner at Bingham McCutchen, specializing in bankruptcy and other forms of insolvency litigation. For many years he led a team representing Uighur prisoners at Guantanamo Bay in habeas and related proceedings. He continues to consult to counsel in Ajam v. Obama, a case that tests the constitutionality of the NDAA.