Will Appeals Court Judges Rule that Force-Feeding at Guantánamo Must Stop?

Last week, a panel of three appeals court judges in Washington D.C. (in the D.C. Circuit Court) heard an appeal from three Guantánamo prisoners — including the last British resident, Shaker Aamer — asking them to order the government to end the force-feeding of prisoners, and two of the three judges “asked sceptical questions of a government lawyer who argued that the courts have no jurisdiction” over conditions at Guantánamo, as Reuters described it.

At the height of the prison-wide hunger strike at Guantánamo this year, at least 106 of the remaining 164 prisoners were on a hunger strike, and 46 of those men were being force-fed. That total has now fallen to 15, but twice a day those 15 men are tied into restraint chairs, while liquid nutrient is pumped into their stomachs via a tube inserted through their nose, a painful and abusive process denounced by the World Medical Association and the United Nations.

In summer, two District Court judges turned down motions challenging the force-feeding of prisoners, ruling that they didn’t have jurisdiction in the case because of previous rulings involving Guantánamo and hunger strikes. Specifically, when Congress passed the Detainee Treatment Act of 2005, the legislation prevented prisoners from suing over their living conditions.

As I noted at the time, one of the judges, Gladys Kessler, was, nevertheless, severely critical of the government’s position. She referred to force-feeding as a “painful, humiliating and degrading process,” and also pointedly criticized President Obama’s inaction, noting, “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.”

The other judge, Rosemary M. Collyer, endorsed the government’s position, claiming that there was “nothing so shocking or inhumane in the treatment” that it would raise a constitutional concern.

Last Friday, Judge David Tatel and Judge Thomas Griffith were the judges who “asked sceptical questions.” Reuters reported that, while they “stopped short of agreeing that forced feeding is inhumane, they suggested that Guantánamo detainees might be able to get around” the conditions in the DTA, which “bars them from suing over living conditions in extreme cases that might include forced feeding.”

Although a decision is not imminent, Reuters noted that the judges’ scepticism “appeared to be a fresh challenge to the administration’s control over how it treats Guantánamo detainees.”

Reuters also noted that the majority of US judges who have been asked to look at the question of force-feeding in prisons “have concluded that the measure may violate the rights of inmates to control their bodies and to privacy,” even though those are “rights rooted in the US Constitution and in common law,” but they have refused to act on these concerns because they have “found that the needs of operating a prison are more important.”

In the hearing last Friday, Judge Griffith, as Reuters put it, asked why the court “should accept without evidence the military’s contention that forced feeding is necessary to maintain order.” He asked Daniel Lenerz, one of the Justice Department lawyers, “Is that your trump card? As long as you play that, that’s the end of the inquiry?”

In response, Lenerz said that there were historical precedents allowing prison wardens to ascertain what they believe is necessary to maintain order, and, as Reuters described it, those in charge of a military prison “should have even more deference.”

In court, Jon Eisenberg, representing the prisoners, told the court, “Forced feeding is unethical, it’s inhumane, it’s a violation of international law and it’s a violation of medical ethics.” For Politico, Josh Gerstein added that he had added that the international community views force-feeding as “equivalent to torture.” The authorities, of course, disagree, arguing, despite doctors’ implacable complaints, that the force-feeding is humane, and necessary to save prisoners’ lives. In this, the authorities are ignoring the fact that the men only embarked on a hunger strike in the first place because their lives had become so intolerable in Guantánamo, where 84 of the remaining 164 prisoners were cleared for release in January 2010 by an inter-agency task force appointed by President Obama when he took office in 2009.

Jon Eisenberg also stated, as Politico described it, that he believed the personnel at Guantánamo “have jumped the gun” and “are performing the so-called ‘enteral feeding’ on people far from death’s door.” Eisenberg said, “They’re force feeding these men before their lives are at risk,” explaining that, as Politico put it, “any prisoner could be force fed for skipping nine meals, regardless of the inmate’s weight,” and “any prisoner with high blood pressure could be force fed for after skipping a single meal.” As Eisenberg described it, “I would be a candidate for force feeding.”

This prompted Judge Stephen Williams, the third judge, to tell Eisenberg that he was “asking too much of the courts to have them determine ‘the exact moment the risk of death reaches such a point it’s OK [to conduct] force feeding.'”

Despite Congressional obstructions, the lawyers for the prisoners are challenging the force-feeding regime through a writ of habeas corpus, the ancient legislation preventing arbitrary detention, which the Supreme Court granted the prisoners in 2004 and again in 2008, reversing Congress’s attempt to prevent them from seeking to challenge their detention through habeas corpus.

As Reuters described it, Judge Tatel “appeared open at Friday’s hearing to letting Guantánamo detainees use habeas suits to protest their conditions.” The Associated Press noted that, although Daniel Lenerz “argued that courts don’t have jurisdiction to hear challenges to the conditions at Guantánamo,” Judge Tatel “repeatedly challenged him on that point.”

He said the Supreme Court had “left it an open question” and pointed out that the courts “had allowed at least four similar suits in civilian prisons,” which prompted Daniel Lenerz to state that those lawsuits involved prisoners who were seeking a transfer from one prison to another, rather than seeking changes related to their medical treatment or how they are fed. Lenerz added that Congress “clearly intended to prohibit Guantánamo detainees from challenging the conditions of their detention.”

As Reuters noted, even if the court of appeals allows the lawsuits to proceed, the prisoners still need to convince judges in the appeals court or the lower court that the authorities at Guantánamo have “no penological reason” to force-feed prisoners.

In addition, Judge Tatel explained how this might be difficult because of a “whole series of federal and state court cases” ruling, as Reuters put it, that “civilian prisons had legitimate reasons for forced feeding, primarily to maintain order.”

Despite some positive noises from the court, I would be profoundly surprised if the appeals court rules for the prisoners, overturning the stranglehold of the Detainee Treatment Act, which, disgracefully, established that “no 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 or is awaiting such determination.”

Note: Please see here for the website of Lewis Peake, the artist who drew the illustration at the top of this article in 2008, as part of a series of five illustrations based on drawings by Guantánamo prisoner Sami al-Haj, which the Pentagon censors had refused to allow the public to see. Reprieve commissioned Lewis Peake to reproduce the drawings based on descriptions of what Sami had drawn, and I reproduced them in my article, “Sami al-Haj: the banned torture pictures of a journalist in Guantánamo.”

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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