What a disgrace the Justice Department lawyers dealing with Guantánamo are. On Wednesday, Andrew Warden, Timothy Walthall and Daniel Barish of the Civil Division’s Federal Programs Branch argued in federal court in Washington D.C. against a motion submitted on behalf of four of the prisoners involved in the prison-wide hunger strike that is nearing its sixth month, asking Judge Rosemary Collyer to order the government to stop force-feeding prisoners engaged in the hunger strike, and also to stop administering medication without the prisoners’ consent.
45 of the prisoners are currently being force-fed, and according to the government 106 of the remaining 166 prisoners are on a hunger strike. The prisoners themselves claim that around 120 of them are refusing food. Two of the four men represented in the motion are being force-fed — Ahmed Belbacha and Nabil Hadjarab, both Algerians — while the other two are taking part in the hunger strike but are not being force-fed. They are Shaker Aamer, the last British resident in the prison, and Abu Wa’el Dhiab, a Syrian.
All four were cleared for release from the prison in January 2010, by the inter-agency Guantánamo Review Task Force that President Obama established when he took office, and all but Abu Wa’el Dhiab were also cleared for release under President Bush. 86 men in total were cleared for release by Obama’s task force, but are still held.
As Cori Crider, the Strategic Director of the London-based legal action charity Reprieve, and Jon B. Eisenberg, an attorney in Oakland, California, stated in their submission, the continued detention of these men “is solely the function of a political stalemate between the President and the Congress.” They added that their clients “did not come lightly to the request they make in this application,” but “after 11 years of limbo at Guantánamo Bay, they have sensibly concluded that they will never be charged and will never be released.”
The lawyers also wrote, “Given the harm that indefinite detention is known to cause its victims, and given its violation of international human rights law and the Anglo-American legal tradition, force-feeding to prolong such detention cannot serve any penological interest.”
As they also noted, in words that should ring around America just hours after the end of the Day of Independence that is supposed to celebrate the end of executive tyranny 237 years ago, “Indefinite detention is un-American.”
In response, however, the Justice Department urged Judge Collyer to reject the prisoners’ request for an injunction, claiming that the public interest “lies with maintaining the status quo,” and “in preserving the health and safety of persons held in government custody, for whose welfare the public has assumed responsibility, and in avoiding the threat to good order, and to the safety of detainees and military personnel alike, should hunger-striking detainees be allowed to perish.”
The government’s lawyers claimed that US personnel in Guantánamo “make every effort to accommodate the religious and cultural practice of detainees,” and that those in positions of responsibility will “modify the hours of meal delivery, including enteral feeding, in accordance with the Ramadan fasting hours,” — a reference to the start of the Muslim holy month, which begins on July 8, when Muslims do not eat in daylight hours.
In their motion, the lawyers for the prisoners had argued that a clear alternative to force-feeding exists — and is one that the authorities should implement immediately. They urged the authorities to “promptly bring them to trial or military commission proceedings, the absence of which is the reason why they are hunger striking.” They also stated, “There cannot be a legitimate penological interest in force-feeding petitioners to prolong their indefinite detention. It facilitates the violation of a fundamental human right. The very notion of it is grotesque.”
In their response to Reprieve and Jon Eisenberg, the Justice Department lawyers also refuted claims that the prisoners are being subjected to medication without their consent, including Reglan, which, as Reprieve put it, “can cause severe neurological disorders, including one that mimics Parkinson’s disease,” if used for extended periods of time. However, no one connected with Guantánamo has ever accepted responsibility for the medical abuse of prisoners that has been thoroughly documented over many years, in particular by Jeff Kaye and Jason Leopold.
In response to the government’s arguments, Reprieve noted that, although the Justice Department lawyers stated that the Joint Task Force at Guantánamo “plans” to feed all prisoners, including those being force-fed, before dawn and after sunset, “absent any … operational issues,” they “fail to make any clear commitment in their response,” to guarantee “that there will be no force-feeding during daylight hours.”
The lawyers for the prisoners also pointed out that the Justice Department made a point of claiming that their clients, as Reprieve put it, “are not ‘persons’ under the Religious Freedom Restoration Act, and therefore not protected by it.”
They also noted an important revelation in the Justice Department’s arguments — “that a key reason to maintain force-feeding is to preserve ‘discipline within the detention facility,'” which I believe may be considered more significant than keeping the men alive.
In response to the government’s submission, Cori Crider said, “These are more weasel words from the Obama administration — they say they have ‘no plans’ to force-feed during the day in Ramadan, but give no guarantees. Meanwhile, on the eve of America’s Independence Day, they ride rough-shod over the fundamental right of people to choose what goes into their bodies.”
Jon Eisenberg added, “The Obama administration argues here that ‘the public interest lies with maintaining the status quo.’ The status quo is that these men are being held indefinitely without any sort of trial, even though they were cleared for release years ago. Force-feeding to maintain that sort of ‘status quo,’ which is a clear violation of human rights, is barbaric. Consider the irony of the Obama administration arguing here that the Guantánamo Bay detainees are not ‘persons’ within the scope of US law guaranteeing religious freedom, in a post-Citizens United world where even corporations are endowed with legal personhood.”
POSTSCRIPT July 5, 3.30pm GMT: The prisoners’ lawyers have submitted a response to the Justice Department’s claims, and the following was made available by Reprieve:
Lawyers for four Guantánamo detainees have criticised the Obama administration’s “equivocal” response over whether daytime force-feeding will take place during Ramadan, and warned that the prison may become “a veritable force-feeding factory” during the religious period.
In a reply filed today to the Government’s response to court proceedings brought by the four men, Guantánamo counsel Cori Crider, of human rights charity Reprieve, and Jon B. Eisenberg propose that the US Government should consent to a court-enforceable decree to ensure that detainees’ religious rights are not violated.
They argue that this is necessary as Government lawyers have remained “silent … as to how they might implement nighttime-only force-feeding,” and as, given the high number currently being force-fed, “nighttime-only force-feeding seems problematic at best and possibly even dangerous to petitioners’ health.”
US authorities have claimed that they intend to only force-feed during the night, in order to avoid breaking the daytime fast which is the central feature of Ramadan. However, Lt. Col Todd Breasseale, a Pentagon spokesman, told CNN this week that doing so “is an accommodation, not a right.”
Crider and Eisenberg add that, based on Guantánamo authorities’ own numbers, there will be “just 10 hours and 44 minutes [between sunset and sunrise] for respondents to implement two force-feedings of 45 detainees for up to an hour of feeding time and four hours of total observation time per detainee” which “could require dozens of restraint chairs and hundreds of staff.”
They warn that “if this can even be achieved, Guantánamo Bay will become a veritable force-feeding factory” and therefore propose “that respondents agree to a consent decree, enforceable by this Court, which will have the legal effect of securing the detainees’ rights to observe the Ramadan fast and to refuse the administration of [anti-nausea drug] Reglan.”
The attorneys for the four detainees – Shaker Aamer, Nabil Hadjarab, Ahmed Belbacha and Abu Wa’el Dhiab – also take issue with the Government lawyers’ claim that “the public interest lies with maintaining the status quo,” pointing to President Obama’s recent description of Guantánamo as “a symbol around the world for an America that flouts the rule of law.”
“We submit,” say Crider and Eisenberg, “that America’s public interest lies not in force-feeding the petitioners to prolong their indefinite detention, but in either trial or release as ‘ready alternatives’ to force-feeding.” They note that the US Government “insist[s] that petitioners’ force-feeding is necessary to prevent them from ‘lay[ing] waste to their bodies,’” and in response state that “Petitioners’ indefinite detention, however, is laying waste to their souls.”
Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).
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On Facebook, Mo D’oh wrote:
thank you for keeping us so promptly updated on the developments… i was waiting for this one, Andy
That’s what I’m here for, Monique!
Note: Please also see the prisoners’ lawyers’ reply to the Justice Department, which I’ve added as a postscript to the article above.
Writer, campaigner, investigative journalist and commentator. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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