In the District Court in Washington D.C. on Monday, Judge Gladys Kessler turned down a motion calling for her to order the government to stop force-feeding prisoners at Guantánamo and giving them medication without their consent. The motion was submitted on behalf of four prisoners taking part in the prison-wide hunger strike that began in February, who are amongst the 86 cleared prisoners still held (out of 166 prisoners in total), whose release was recommended by an inter-agency task force established by President Obama when he took office in 2009.
According to the government, 106 prisoners are engaged in the hunger strike. The prisoners state that the true number is around 120, but both parties seem to agree that 45 of these men are being force-fed. The government, however, refuses to recognize force-feeding as a horrendous procedure, even though it is recognized as torture by medical professionals, when it involves the force-feeding of mentally competent prisoners.
Judge Kessler is trapped by a legal precedent established by a higher court, the D.C. Circuit Court, but she nevertheless managed to criticize that precedent, and also to mention, and support the universal recognition that force-feeding prisoners “violates Article 7 of the International Covenant on Civil and Political Rights which prohibits torture or cruel, inhumane, and degrading treatment.”
She also managed to both criticize President Obama for his inaction, and to point out that, as the Commander in Chief of the Army and Navy of the United States, he has “the authority — and power — to directly address the issue of force-feeding of the detainees at Guantánamo Bay.”
Judge Kessler delivered her ruling in the case of Abu Wa’el Dhiab, a Syrian prisoner cleared for release in 2009 but still held, who is one of four prisoners who submitted the motion last Sunday. The other three cases have yet to be heard, but the outcome can be no different. As Judge Kessler explained in her four-page opinion:
On February 10, 2009, this Court issued Al-Adahi v. Obama … In that case, Petitioner had filed a Renewed Emergency Motion to Enjoin the Force-Feeding to which he was being subjected. For all practical purposes, the facts in Al-Adahi, which the Court found after a long Motion Hearing, are close to identical to the facts presented by Petitioner in this case. In Al-Adahi, the Court concluded that it “lacks jurisdiction and therefore does not have the authority to grant the relief’ being requested … The Court made it perfectly clear in that Opinion that it was required to reach that conclusion “if it is to carry out its obligation to faithfully follow the rule of law.”
Because “[t]here has been no material change in either the background facts or the applicable legal principles since issuance of the Al-Adahi Opinion,” the legal precedent, tying Judge Kessler’s hands, is still as follows:
[N]o court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant.
Judge Kessler added, “Consequently, the Court feels just as constrained now, as it felt in 2009, to deny this Petitioner’s Application for lack of jurisdiction.”
In the key passage dealing with force-feeding as “torture or cruel, inhumane, and degrading treatment,” Judge Kessler made a point of stating:
The Court also feels constrained, however, to note that Petitioner has set out in great detail in his papers what appears to be a consensus that force-feeding of prisoners violates Article 7 of the International Covenant on Civil and Political Rights which prohibits torture or cruel, inhumane, and degrading treatment.
She added that Abu Wa’el Dhiab had cited in detail “statements of the American Medical Association, the World Medical Association, the UN High Commissioner for Human Rights, the UN Rapporteur on Human Rights and Counter-Terrorism condemning the force-feeding of detainees,” and specifically included a quote from the American Medical Association’s letter to the Secretary of Defense on April 25 declaring that the force-feeding of detainees violates “core ethical values of the medical profession.”
Furthermore, she evidently had little time for the government lawyers’ claims that the health care provided to the prisoners “rivals that provided in any community in the United States and is comparable to that afforded to our active duty service members,” and that the prisoners “receive timely, compassionate, quality healthcare and have regular access to primary care and specialist physicians.”
In response, she wrote, in an understated rebuke to the government, “it is perfectly clear from the statements of detainees, as well as the statements from the organizations just cited, that force-feeding is a painful, humiliating, and degrading process.”
In conclusion, she took aim at President Obama. “Even though this Court is obligated to dismiss the Application for lack of jurisdiction, and therefore lacks any authority to rule on Petitioner’s request,” she wrote, “there is an individual who does have the authority to address the issue.”
In a speech on May 23, 2013, President Barack Obama stated “Look at the current situation, where we are force-feeding detainees who are holding a hunger strike … Is that who we are? Is that something that our founders foresaw? Is that the America we want to leave to our children? Our sense of justice is stronger than that.”
Article II, Section 2 of the Constitution provides that “[t]he President shall be the Commander in Chief of the Army and Navy of the United States …” It would seem to follow, therefore, that the President of the United States, as Commander-in-Chief, has the authority — and power — to directly address the issue of force-feeding of the detainees at Guantánamo Bay.
Despite being bound by precedent, Judge Kessler’s opinion is a powerful rebuke to the government, via its lawyers, for claiming that the treatment of prisoners at Guantánamo is, at all times, “compassionate,” instead of conceding that it is “torture or cruel, inhumane, and degrading treatment,” and to President Obama, as the Commander in Chief of the Army and Navy, for not using his “authority” and “power” to deal with the hunger strike.
Implicit in her criticism, I believe, was another aspect of President Obama’s speech on May 23, in which he declared, “To the greatest extent possible, we will transfer detainees who have been cleared to go to other countries.” This is a promise he has yet to fulfill by releasing a single one of the 86 cleared prisoners still being held — including Abu Wa’el Dhiab, and the three other men involved in the motion (Shaker Aamer, the last British resident in the prison, and Ahmed Belbacha and Nabil Hadjarab, both Algerians), who are waiting for a ruling from another judge.
Judge Kessler is part of the establishment she criticizes. When she had the opportunity to review two habeas corpus petitions submitted by prisoners in 2010, she turned them both down — even before the Circuit Court rewrote the rules so that it was all but impossible for a habeas petition to be granted.
However, her dissatisfaction with the status quo is evident in her ruling, as, I believe, is her revulsion as an American, and as a human being, for the indefinite detention of all the prisoners at Guantánamo, and the brutal manner in which the hunger strike is being managed.
Summing up Abu Wa’el Dhiab’s predicament in her ruling, she stated, as a matter of fact, “Petitioner has been detained at Guantánamo Bay for 11 years, despite having been cleared for release in 2009. At no time during these 11 years has he had any hearing on the merits of his habeas petition, nor any military commission proceeding to determine the merits of his case. Due to certain actions taken by Congress, Guantánamo Bay has not been closed, and Petitioner’s detention has, for all practical purposes, become indefinite.”
It is important that Judge Kessler mentioned the role of Congress in imposing restrictions preventing the release of prisoners from Guantánamo — even those cleared for release — but it remains true, as she also pointed out, that President Obama has the “authority” and “power” to act.
He needs to do so before any of the men deprived of their rights through a disgraceful ruling in 2009 (the Al-Adahi ruling cited above) die at Guantánamo.
As attorneys wait for the ruling on the other three men’s motion before deciding whether to appeal, Jon Eisenberg, one of the lawyers involved in filing the lawsuit last weekend, told the Miami Herald, “This is quite a statement from a federal judge. She said that force feeding violates international law and medical ethics and she has called on President Obama to do something about it, which is really amazing.”
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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Thanks to everyone liking and sharing this. I posted it early, as I have some other important work to do this week that is taking up a lot of my time, and I’m also going to be out later attending two art exhibitions that my son is involved in – one is for gifted and talented pupils at his school, and the other is the year-end show featuring work from a Southwark-wide weekly art class that has been running all year, involving the most talented artists from eight different schools. I’m very proud!
Thanks a lot for this.
Have a great time with your family. Good wishes to your son, Andy!
Thanks, Bose. Good to hear from you.
When my Facebook friend Giacomella Jackie Milesi Ferretti shared this, I wrote:
Thanks for sharing, Giacomella. So sad that such a powerful ruling cannot actually address the prisoners’ complaints because of a terrible precedent established in 2009 preventing judges from any kind of intervention relating to the “detention, transfer, treatment, trial, or conditions of confinement” of prisoners.
Tausif Khan wrote:
CAIR has made the very important point that even while the judge recognized the practice as torture the judge did not put a halt to the practice. While the judge noted it is not in her hands to stop the practice, for practical purposes real people are being hurt by this practice. Therefore this legal theory is only a holllow victory.
Thanks, Tausif. Yes, it is hollow, but morally it’s important. And much better than the subsequent ruling by Judge Rosemary Collyer, who criticized nobody except the prisoners and their lawyers: http://www.andyworthington.co.uk/2013/07/17/from-guantanamo-hunger-striker-abdelhadi-faraj-describes-the-agony-of-force-feeding/
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