Disappointment as US Judge Upholds Force-Feeding of Hunger Striking Guantánamo Prisoner Abu Wa’el Dhiab

10.11.14

Guantanamo prisoner Abu Wa'el Dhiab, and District Judge Gladys Kessler, who, earlier this year, ordered the government to preserve all videotapes of his force-feeding and "forcible cell extractions," and who, last month, ordered those videotapes to be publicly released. On November 7, 2014, unfortunately, she refused to order the government to change the way it force-feeds him, and to make it more humane.On Friday, in the latest twist in the legal challenge mounted by Abu Wa’el Dhiab, a hunger striker at Guantánamo, District Judge Gladys Kessler, in Washington D.C., disappointed Mr. Dhiab, his lawyers and everyone who wants personnel at Guantánamo to be accountable for their actions by denying his request “to significantly change the manner in which the US military transfers, restrains and forcibly feeds detainees on hunger strike to protest their confinement,” as the Guardian described it.

Mr Dhiab, a father of four who is in a wheelchair because of the decline in his health during 12 years in US custody, was cleared for release in 2009 by the high-level, inter-agency Guantánamo Review Task Force that President Obama appointed when he first took office, but he is still held because of Congressional opposition to the release of prisoners, and because he needs a third country to take him in (and although Uruguay has offered him new home, that deal has not yet materialized). Last year, he embarked on a hunger strike because of his despair that he would never be released, along with two-thirds of the remaining prisoners, and he also asked a judge to order the government to feed him in a more humane manner.

That request was turned down last summer, because of legislation passed under President Bush that was cynically designed to prevent judges from interfering in the treatment of prisoners at Guantánamo, but in February this year the court of appeals — the D.C. Circuit Court — overturned that ruling and an allied ruling, determining that hunger-striking prisoners can challenge their force-feeding in a federal court — and, more generally, as the New York Times described it, that judges have “the power to oversee complaints” by prisoners “about the conditions of their confinement,” and that “courts may oversee conditions at the prison as part of a habeas corpus lawsuit.”

Mr Dhiab subsequently asked again for Judge Kessler to look at his case, and, as I explained in a recent article:

[I]n May, [Judge Kessler] briefly ordered the government to stop force-feeding Mr. Dhiab. This order was swiftly rescinded, as Judge Kessler feared for his life, but she also ordered videotapes of his “forcible cell extractions” (FCEs) and his force-feeding to be made available to his lawyers, who had to travel to the Pentagon’s secure facility outside Washington D.C. to see them. After viewing them, Cori Crider, his lawyer at Reprieve, said, “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.”

On October 3, Judge Kessler ordered the government to publicly release the videotapes, in response to a motion submitted by 16 mainstream media organizations, although on October 16 she gave the government a month’s delay.

In her ruling on Friday, Judge Kessler “demonstrated the myriad complications facing detainees who turn to US courts for relief against their US military captors,” as the Guardian described it, explaining that she “appeared persuaded by written testimony from Guantánamo officials that leaving the feeding tube in for days on end, which Dhiab sought as a means to minimize pain, created a greater risk to detainees’ health and to that of Guantánamo nurses and guards.”

Judge Kessler wrote, “The government produced highly credible evidence that enteral feeding is rarely painful,” even though last summer, as the Guardian noted, she called the force-feeding “painful, humiliating and degrading.”

The Guardian added that, although Judge Kessler noted that Mr. Dhiab “had complained that the feeding is painful in ‘isolated incidents,’ she found that the Guantánamo command had not demonstrated ‘deliberate indifference’ to his suffering, the legal standard she accepted as controlling, despite the arguments of Dhiab’s lawyers.”

The Miami Herald added that, in her ruling, Judge Kessler wrote, “The evidence produced at the hearing regarding pain was very mixed. There is evidence in the record, including Mr. Dhiab’s medical chart, that he often tolerates the procedure without complaints of pain or significant discomfort.”

The Guardian also noted that Judge Kessler “declined to contradict the government on the necessity of its ‘restraint chair'” that it uses for force-feeding, and also refused to challenge “its much-contested claims that it only feeds hunger strikers facing imminent and dire risk to their life or health.”

Judge Kessler also failed to address what the Guardian called “a central claim from Dhiab’s attorneys: that the forced feedings are a form of punishment to break the Guantánamo hunger strikes, rather than a strict medical consideration,” although she did criticize officials “for initially depriving Dhiab of the use of a wheelchair to transport himself to and from the feedings, as well as an additional mattress to alleviate long-term back pain that the government itself prescribes morphine to treat.”

As she wrote, “While the government ultimately — but only a short time before the hearing — allowed Mr. Dhiab to use the wheelchair, thereby inducing him to comply with the force-feeding as he had agreed to do, common sense and compassion should have dictated a much earlier result.”

Judge Kessler conceded that Mr. Dhiab “is clearly a very sick, depressed, and desperate man,” adding, “It is hard for those of us in the continental United States to fully understand his situation and the atmosphere at Guantánamo Bay. He has been cleared for release since 2009 and one can only hope that that release will take place shortly.”

Responding to the ruling, Alka Pradhan of Reprieve, one of Mr. Dhiab’s lawyers, said, “While we respectfully disagree with today’s decision, Mr. Dhiab’s case has given us a deeper look at Guantánamo than ever before, including medical malpractice and egregious cruelty by the government which Judge Kessler highlights in her decision. Now more than ever, the American public must demand to see the force-feeding videotapes that the government is still fighting to keep secret.”

Mr. Dhiab’s lawyers also said they were considering whether to appeal.

As indicated above, despite the disappointment, Judge Kessler’s order for the government to release the force-feeding videotapes still stands, and the Justice Department has until November 17 to announce if it will disclose the tapes (with redactions to the faces of US personnel) or mount an appeal.

I await that decision with great interest, as I believe that an appeal is futile, and that the government will, eventually, have to release tapes that will reveal to the public quite how revolting the reality of Guantánamo remains behind the scenes.

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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6 Responses

  1. Andy Worthington says...

    Thanks to everyone liking and sharing this. You can read Judge Kessler’s 20-page ruling here: http://www.reprieve.org/uploads/2/6/3/3/26338131/2014_11_07_pub_kessler_opn_denying_mot_prelim_injunction.pdf

  2. Andy Worthington says...

    Peter B. Collins wrote:

    Thanks for the link, Andy. Just read the ruling, and it is a disappointment.

  3. Andy Worthington says...

    You’re welcome, Peter B. Good to hear from you. I can see the line of her reasoning – that Abu Wa’el Dhiab’s force-feeding isn’t always horribly painful, that keeping the tube in might be unsanitary, but in some ways her conclusions seem to run counter to what she has ruled before.
    The good news, of course, is that the order to release the videotapes still stands, and the government will be forced to comply unless they can successfully appeal – and I don’t see an appeal being successful.
    Then again, what do I know, Peter? That might be hopelessly optimistic of me. Perhaps when faced with the government wailing about national security, rather than admitting shame and embarrassment, the D.C. Circuit Court judges will let politics trump justice, as they have before (mainly between 2009 and 2011, in connection with Guantanamo).

  4. Andy Worthington says...

    Here’s another interesting take on Judge Kessler’s ruling and the treatment of prisoners at Guantanamo by Joseph Hickman, who was a guard in 2006 and cast serious doubts on the official story that, in June 2006, three prisoners at Guantanamo died by committing suicide:
    https://news.vice.com/article/former-guard-guantanamos-safe-humane-legal-transparent-motto-is-simply-not-true

  5. Andy Worthington says...

    As anticipated, Abu Wa’el Dhiab has appealed Judge Kessler’s ruling. As the AP described it, “A Guantánamo Bay hunger striker is appealing a judge’s refusal to change the way [he] is being force-fed by his jailers … The judge described Dhiab as sick, depressed and desperate, but said that prison officials had not exhibited deliberate indifference regarding Dhiab’s treatment.”
    See: http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article3731690.html

  6. Andy Worthington says...

    On Dec. 2, as the New York Times described it, “lawyers for the Justice Department filed a notice of appeal on a federal court order issued in October requiring the release of 28 tapes recorded by the guards of their handling of one of the striking prisoners [Abu Wa’el Dhiab].”

    See: http://www.nytimes.com/2014/12/08/opinion/release-the-guantanamo-force-feeding-videos.html

    The Times linked to a Miami Herald article that stated:

    A Pentagon official is invoking the revulsion of Muslims worldwide over images of U.S. Marines urinating on corpses to predict the global backlash at seeing videos of Guantánamo troops hauling a captive to force-feedings.

    The Justice Department included the declaration in a renewed bid to prevent the public from seeing 32 videos made by U.S. forces at the detention center in Cuba.

    “While the videos at issue in this litigation do not in my opinion depict any improper treatment of the detainees, but rather the lawful, humane and appropriate interaction between guards and detainees,” wrote U.S. Navy Rear Adm. Sinclair Harris, “persons and entities hostile to the United States and its detention of enemy belligerents at Guantánamo Bay are likely to think otherwise.” […]

    Dhiab’s attorney argues that ugly optics are no excuse.

    “I’ve seen the videos — and of course they’re upsetting,” Crider said Wednesday by email from Reprieve, a London-based law firm that represents Dhiab at no charge. “But that’s no reason to hide the truth from Americans.”

    “By that logic, think of all the government scandals that never would have seen the light of day,” she added, citing the 2003 photos of guards abusing detainees at Abu Ghraib prison in Iraq and images of the 1968 My Lai massacre that “changed the conversation about Vietnam.”

    See: http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article4263887.html

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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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