Judge in Guantánamo Force-Feeding Case Rejects Government’s Call for Secret Hearing

3.10.14

Sometimes, when it comes to Guantánamo, the shamelessness of the US government know no bounds.

The most recent example is in the case of Abu Wa’el Dhiab, a Syrian prisoner, long cleared for release and confined to a wheelchair as a result of his treatment over the last 12 years. In despair at ever being released, Mr. Dhiab embarked on a hunger strike last year, as part of the prison-wide hunger strike that reminded many people of the existence of Guantánamo — and in May he won an unprecedented court victory, when, as I described it recently, a US judge — District Judge Gladys Kessler, in  Washington D.C. — ordered the government to stop force-feeding him, and to preserve videotaped evidence of his force-feeding, and his “forcible cell extractions” (FCEs), whereby a team of armored guards drags him out of his cell to take him to be force-fed.

Soon after, Judge Kessler reluctantly dropped her ban on Mr. Dhiab’s force-feeding, fearing that otherwise he would die. However, she also ordered the government to release the videotapes to Mr. Dhiab’s lawyers, which was another unprecedented decision.

On August 12, as I explained in another article, Judge Kessler ordered the authorities at Guantánamo to allow two independent doctors to visit the prison to evaluate Mr. Dhiab’s health. As his lawyers at the legal action charity Reprieve explained in a press release, his health had “deteriorated so much that there are now concerns for his life.” As Reprieve also explained, the doctors will “also testify, along with a force-feeding expert, at a hearing scheduled for October 6, about the medical effects of the force-feedings on Mr Dhiab.”

In its latest bout of shamelessness, the government attempted, at short notice, to persuade Judge Kessler that this hearing had to take place in secret, but she refused to comply with that request, and, in a five-page order, delivered a withering put-down of the government’s position, describing it as “extraordinary” and “deeply troubling.”

Below I’m posting the whole of Judge Kessler’s ruling, so readers can see for themselves what Spencer Ackerman, in the Guardian, described as Judge Kessler’s “occasionally mocking tone,” as she took apart the government’s feeble arguments, one by one.

MEMORANDUM OPINION

Petitioner Abu Wa’el (Jihad) Dhiab has been detained at Guantánamo Bay, Cuba, since as early as 2002. In 2009, he was declared eligible for release. As of October 1, 2014, he still remains a detainee at Guantánamo Bay.

On April 18, 2014, Mr. Dhiab (represented by counsel) filed a Motion for Preliminary Injunction. While some of his requests for judicial relief have changed over time, his major requests are for a preliminary injunction barring the Government from subjecting him to forcible cell extractions (“FCE”) and from placing him in a Five-Point Restraint Chair for the purpose of transporting him to or from forced-feeding, so long as he indicates that he is willing to submit to such feeding compliantly. After much preliminary litigation activity, on August 12, 2014, the Court set October 6 & 7, 2014, as a firm date for the Preliminary Injunction Hearing. Thus, the Parties have known for a period of two months the date upon which the hearing would go forth.

On September 26, 2014, less than two weeks prior to the start of the long-scheduled Hearing, the Government filed a Motion to Seal Preliminary Injunction Hearing … requesting that the Court take the extraordinary step of completely closing the entire Preliminary Injunction Hearing to the public. This request, which appears to have been deliberately made on short notice is — in this Court’s view — deeply troubling.

One of the strongest pillars of our system of justice in the United States is the presumption that all judicial proceedings are open to the public whom the judiciary serves. As the Court of Appeals for the Sixth Circuit has observed, “[t]he First Amendment, through a free press, protects the people’s right to know that their government acts fairly, lawfully, and accurately.” [Detroit Free Press v. Ashcroft, 2002].

The Government argues that closing the Preliminary Injunction Hearing to the public (with the exception of brief unclassified opening statements), is necessary because the “record in this case includes inextricably intertwined classified, protected, and unclassified information.” The Government contends that closing the Hearing will prevent any unauthorized disclosure of classified or protected information, thereby purportedly ensuring that the hearing proceeds in an efficient manner … It denies that Mr. Dhiab will suffer any prejudice as a result of such closure.

For the following reasons, the Government’s Motion will be denied.

First, as Petitioner points out, the hearing can be bifurcated [split in two] into open and closed sessions to accommodate the Government’s concerns. Petitioner is presenting only three witnesses, all experienced expert witnesses, who understand the difference between open and closed sessions and classified and unclassified information. One of those witnesses, Dr. Steven Miles, lacks any security clearance at all and therefore can be heard entirely in open Court. The other two witnesses can bifurcate their testimony into public sessions discussing their written reports, which have already been filed in public on the Court’s docket, and closed sessions involving any classified or protected information, during which the hearing can be closed to the public. Petitioner’s counsel anticipates that full examination of those two experts can be completed in one day on October 6.

Second, the Government does not intend to call any live witnesses, and, therefore, there need be no worry about monitoring their testimony.

Third, as to the presentation and/or discussion of documentary evidence, a great deal of it is already public and has been filed in public on the Court’s docket. To the extent it has not, its submission can be bifurcated into public and closed proceedings.

Fourth, the Government’s only argument to the contrary is that Petitioner’s public information is inextricably intertwined with classified and protected information. As a result, the Government argues that a bifurcated hearing “is rife with the risk of slip ups and inadvertent disclosure of protected or classified information.” … In prior hearings before this Court, counsel and the Court have dealt carefully and professionally with classified, protected and public information. The courtroom has been sealed without any problems whenever necessary to discuss classified and protected information. Moreover, it is in the interest of all counsel to be vigilant during the Hearing to bring any potentially classified or protected information to the Court’s attention before testimony is given.

Fifth (and really first in significance), the law is clear that “[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” [Press-Enterprise Co. v. Superior Court of California, 1984] (emphasis added). Closing the hearing in its entirety certainly would not be a “narrowly tailored solution” when the alternative of bifurcation is a reasonable, sensible, and doable alternative.

Sixth, the Government claims that the entire proceeding should be closed because bifurcation of testimony and the periodic closing of the courtroom will cause “significant logistical burdens,” “delay,” and “great cost in the continuity of questioning.” As the United States Court of Military Appeals said, even though a bifurcated hearing “may involve complex and delicate matters for resolution by the trial judge … th[o]se are matters judicial officers must and should be equipped to properly determine. [United States v. Grunden, 1977]. This Court has full faith in the ability of counsel and the Court, acting together, to handle in an efficient and appropriate manner, all the classified and protected information. Moreover, a reasonable amount of delay and logistical burdens are a small price to pay for the virtues of judicial transparency.

Finally, it is no secret that Mr. Dhiab’ s case has received a good deal of publicity in the press. As Judge Hogan said in In re Guantanamo Bay Detainee Litigation [2009], “[p]ublic interest in Guantánamo Bay generally and these proceedings specifically has been unwavering.” With such a long-standing and ongoing public interest at stake, it would be particularly egregious to bar the public from observing the credibility of live witnesses, the substance of their testimony, whether proper procedures are being followed, and whether the Court is treating all participants fairly.

In sum, the Government has failed to meet its burden of establishing a substantial probability of prejudice to a compelling interest. The Government seems to have forgotten the words of the Supreme Court in Press-Enterprise Co. v. Superior Court …, which are as wise and relevant today as they were in 1984:

The value of openness lies in the fact that people not actually attending trials [and other proceedings] can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the . . . trial and the appearance of fairness so essential to public confidence in the system. (emphasis in original).

For all these reasons, the presumption of openness and the absence of any grounds that justify overcoming that presumption compel denial of the Respondents’ Motion.

Gladys Kessler
United States District Judge
October 2, 2014

*****

Also of relevance to Abu Wa’el Dhiab’s case is an article his lawyer, Cori Crider, Reprieve’s Strategic Director, wrote for the Guardian just two days before Judge Kessler’s ruling, which I’m posting below in its entirety, because I cannot better — or paraphrase — Crider’s eloquence, as she decries the ongoing horrors of Guantánamo. Of particular interest are the following: her explanation of why attempting to suppress the testimony of three expert witnesses is so disingenuous, as one, Dr. Sondra Crosby, “has already testified in public” at one of Guantánamo’s military commissions, in April; and the quote from Abu Wa’el Dhiab — “They want all of us to be invisible: the detainees, the kind people like the nurse who would not force-feed us, the people who could tell Americans the truth.”

I’m also impressed with Crider’s analysis of the importance of the video tapes that she saw back in June, when she stated, “While I’m not allowed to discuss the contents of these videos, I can say that I had trouble sleeping after viewing them,” and added, “I have no doubt that if President Obama forced himself to watch them, he would release my client tomorrow.”

In Tuesday’s column for the Guardian, she wrote, “Over the summer I watched the videos — 11 bleak hours of filmed abuse. Some of the images have burned into my brain in much the same way that, 10 years ago, the Abu Ghraib photos burned my mind, and perhaps yours.” She also noted how “The DoD is so nervous about this footage going public that I have been forbidden even to discuss it with other security-cleared lawyers representing other clients on hunger strike, with whom we were always previously trusted to discuss classified issues.”

I also found her closing words extremely powerful, where she wrote that the prison at Guantánamo is “not just a prison,” but “a warehouse of the forgotten, run by a military that doesn’t have the faintest idea how to treat the sick souls of people held without charge for over a dozen years.”

Gitmo hunger strikes are a cry for help. Why is the US fighting back with secret torture?
By Cori Crider, The Guardian, September 30, 2014

“Safe, Humane, Legal, Transparent”: so goes the slogan of the world’s most famous offshore prison. It’s an Obama-era rebrand, a bid by Gitmo’s PR people to persuade Americans that today’s is a kinder, gentler Guantánamo Bay. There’s just one wrinkle: Gitmo is still dangerous, nasty, lawless and secretive — and the evidence just keeps piling up.

At the forefront of this war over the truth is the first-ever trial concerning the practice of force-feeding prisoners on hunger strike, due to start Monday. My client, Abu Wa’el Dhiab — a Syrian man who has never been charged, and indeed has been cleared to leave Guantánamo by the US government for more than five years — has been fighting for over a year to reform the way he and other hunger-strikers have been treated. He’s finally about to have his day in court.

But the Obama administration refuses to accept this unusual intrusion of justice into its island idyll. On Friday, US justice department attorneys filed a motion asking the court to hear all evidence in the trial entirely in closed court, save a short, anodyne opening statement from lawyers on both sides.

What we had planned to discuss in public is no secret — at least, not a legitimate one. Three expert witnesses would take the stand to talk openly about the gruesome effects of force-feeding on Abu Wa’el. A bioethicist, a torture physician and a psychiatrist who is also a retired Brigadier General [Stephen Xenakis]  would testify that force-feeding as currently practiced at Guantánamo Bay is punitive — that it is a transparent effort by prison authorities to break detainees’ will and stop them from hunger-striking. What force-feeding emphatically is not, these experts will say, is proper medical care. It is a gross violation of medical ethics. But if the government gets its way, throughout this testimony, the courtroom’s public gallery will be empty.

The craziest aspect of the government’s request to close down this trial is that one of our cleared experts, Dr. Sondra Crosby, has already testified in public in one of the military commissions (the quasi-criminal but less-fair “trials”) at Gitmo. This April, she spoke, on camera and in detail, about the torture of a defendant — Abd al-Rahim Hussein Muhammad Abdah al-Nashiri — who is one of the three people the US government admits it waterboarded. That is a “top secret” case; if a doctor could talk about torture then, why can’t a doctor call the torture of a cleared inmate what it is today?

In a recent phone conversation with me from Guantánamo, Abu Wa’el offered his own view on the government’s motivations for keeping so much in this case so unnecessarily secret:

They want all of us to be invisible: the detainees, the kind people like the nurse who would not force-feed us, the people who could tell Americans the truth.

He was right. Since the start of the mass hunger strike last year and the start of our litigation, the government has thrown up obstacle after obstacle to keep the public from understanding what force-feeding at the base really looks like.

First, the Obama administration insisted there should be no trial of force-feeding at all, claiming the courts had no power to police abuses at the base. Then it prematurely declared the hunger strike “over” and announced that Department of Defense would no longer publish the total number of prisoners on hunger strike. Around the same time, the government even wiped the inconvenient term “hunger striker” from its lexicon: talk to a Pentagon spin doctor today, and you will find there is no such thing as a hunger strike, no such thing as force-feeding. Today there are only “noncompliant detainees” who engage in “non-religious long-term fasts” and must be “enterally fed”.

This is what the Pentagon refuses to say: twice a day, every day, it puts cleared hunger-strikers through abuse that would shock most Americans if they could but see it.

But testimony from a couple of experts is not the same as watching a tube go down a man’s throat, you might say. You might even ask: what is the government so afraid of?

Part of the answer lies in a cache of secret force-feeding videos. Earlier this year, we forced the government to give us a pile of tapes of Abu Wa’el being hauled from his cell by Guantánamo’s riot squad (the so-called “Forcible Cell Extraction” team) and strapped into a chair for force-feeding. Over the summer I watched the videos — 11 bleak hours of filmed abuse. Some of the images have burned into my brain in much the same way that, 10 years ago, the Abu Ghraib photos burned my mind, and perhaps yours.

The DoD is so nervous about this footage going public that I have been forbidden even to discuss it with other security-cleared lawyers representing other clients on hunger strike, with whom we were always previously trusted to discuss classified issues. The Pentagon doesn’t want you to get anywhere close to these images; the government doesn’t even really want you to hear in public from other people, like our security-cleared experts, who have seen what force-feeding looks like.

But those who have seen the tapes know the truth: what we do to hunger-strikers at Guantánamo shames America — not just in the bad old days of George W Bush, but today, in 2014.

Gitmo is not just a prison. It is a warehouse of the forgotten, run by a military that doesn’t have the faintest idea how to treat the sick souls of people held without charge for over a dozen years. The basic problem at the heart of our case is that the Obama administration refuses to see my client’s hunger strike as a peaceful, last-resort protest against more than a decade of injustice. Instead, it views his protest not as a cry of humanity, but as a disciplinary problem that must be stamped out.

The US government is wrong. Abu Wa’el Dhiab is starving himself because he feels he and other prisoners at Guantánamo have no other choice. And when we go to trial next week, and experts testify about what is really going on at the base, right now, in our name, they should be allowed to do it in public to the greatest possible extent. The truth about Gitmo should be heard loud and clear — “legal and transparent” — not just in a courtroom in Washington but all across the world.

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).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the “Close Guantánamo” campaign, and, if you appreciate Andy’s work, feel free to make a donation.

4 Responses

  1. Andy Worthington says...

    On Facebook, Cindy Barg wrote:

    Thanks so much for your work.

  2. Andy Worthington says...

    Thanks, Cindy, for the supportive comments.

  3. Andy Worthington says...

    Geraldine Grunow wrote:

    Many thanks for all the good work you do to end this complete travesty of justice.

  4. Andy Worthington says...

    Thanks, Geraldine, for the supportive words. Great to hear from you.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. 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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