US Appeals Court Rules that Guantánamo Prisoners Can Challenge Force-Feeding, and Their Conditions of Detention

In the latest news from Guantánamo, the court of appeals in Washington D.C. ruled yesterday that hunger-striking prisoners can challenge their force-feeding in a federal court — and, more generally, ruled that judges have “the power to oversee complaints” by prisoners “about the conditions of their confinement,” as the New York Times described it, further explaining that the judges ruled that “courts may oversee conditions at the prison as part of a habeas corpus lawsuit,” and adding that the ruling “was a defeat for the Obama administration and may open the door to new lawsuits by the remaining 155 Guantánamo inmates.”

In summer, four prisoners, all cleared for release since at least January 2010 — Shaker Aamer, the last British resident in the prison, Ahmed Belbacha, an Algerian, Abu Wa’el Dhiab, a Syrian and Nabil Hadjarab, another Algerian, who was later released — asked federal court judges to stop the government from force-feeding them, but the judges ruled (see here and here) that an existing precedent relating to Guantánamo prevented them from intervening. The prisoners then appealed, and reports at the time of the hearing in the D.C. Circuit Court indicated that the judges appeared to be inclined to look favorably on the prisoners’ complaints.

As was explained in a press release by Reprieve, the London-based legal action charity whose lawyers represent the men involved in the appeal, along with Jon B. Eisenberg in California, the D.C. Circuit Court “held that the detainees should be allowed a ‘meaningful opportunity’ back in District Court to show that the Guantánamo force-feeding was illegal.” They also “invited the detainees to challenge other aspects of the protocol.”

Reprieve noted that the prisoners “have alleged that the force-feeding is both a violation of their rights, and gratuitously torturous,” although the judges “refused to ban force-feeding altogether, saying that for an immediate injunction ‘it is not enough for us to say that force-feeding may cause physical pain, invade bodily integrity, or even implicate petitioners’ fundamental individual rights.'” That quote came from Judge David Tatel, who added, “This is a court of law, not an arbiter of medical ethics … absent exceptional circumstances prison officials may force-feed a starving inmate actually facing the risk of death.” Judge Tatel also wrote, “Petitioners point to nothing specific to their situation that would give us a basis for concluding that the government’s legitimate penological interests cannot justify the force-feeding of hunger-striking detainees at Guantánamo.”

The judges also said that they “could not bar the doctors from following military orders in Guantánamo merely because they might be acting in violation of their medical ethics.”

Describing the current state of the hunger strike, Emad Hassan, a Yemeni who has been on a hunger strike since 2007, and has been force-fed for all that time, told Clive Stafford Smith in a recent conversation, “I am so dehydrated that my tongue becomes dry like tanned animal skin. They can’t find a vein to take my blood. They always strap me to the chair for force feeding, whether I am vomiting or not. The chairs slope backwards and because I have terrible kidney problems it is very painful.”

In another recent conversation, Shaker Aamer, speaking in anticipation of the court ruling, said, “This is one step towards justice. A general in charge of this place said they were going to make it less ‘convenient’ for us to go on a peaceful hunger strike. The way they force feed us is just torture, using the FCE [Forcible Cell Extraction] team to force us to the feeding room, using the torture chair to strap us down, using tubes that are too big for our noses, and putting the 120 centimeter tubes in and pulling them out forcefully twice each day, with each feeding. Instead of making matters worse here, they should treat us with respect, like human beings.”

Reprieve also noted that, at the latest count, 34 prisoners are involved in the latest hunger strike (first announced by Shaker Aamer in December), with 17 of the men being force-fed. This is one more than the 33 hunger strikers — with 16 men force-fed — reported by Shaker last month.

Responding to the ruling, Cori Crider, Reprieve’s strategic director, said, “This is a victory for the prisoners. The detainees have been on hunger strike for years now, with the simple, peaceful demand that they be given a fair trial or freedom. President Obama agrees that the Guantánamo regime is a blot on the reputation of America, and it is time he put an end to the torturous force feeding there.”

Jon B. Eisenberg said, “This decision puts a large crack in the edifice of lawlessness that has surrounded Guantánamo Bay since 2002.  It’s a good day for the rule of law in America.”

Nevertheless, much of the mainstream media failed to get the positive message from the ruling. “Court turns down Guantánamo force-feeding challenge,” blared the Associated Press, noting that the court “rejected a bid for a preliminary injunction to stop force-feeding” at Guantánamo, which was true, but playing down the fact that two of the three judges had ruled that the prisoners “did have the right to challenge the force-feeding — rejecting two district court rulings that the judiciary didn’t have jurisdiction in the case.” Joining Judge Tatel (a Clinton nominee) in the majority ruling was Judge Thomas Griffith, an appointee of President George W. Bush, while the dissenting judge was Stephen F. Williams, an appointee of Ronald Reagan.

In fact, the rest of the AP report highlighted this successful aspect of the case, as Jon B. Eisenberg explained. In an email, he called it “a big win for us,” adding, “This decision establishes that the federal courts have the power to stop the mistreatment of detainees at Guantánamo Bay. The court of appeals has given us the green light to continue our challenge to the detainees’ force-feeding as being unconstitutionally abusive. We intend to do that.”

I’ll be watching further developments closely — not just, as Jon B. Eisenberg noted, in reference to the hunger strikers being force-fed, but also, more broadly, in terms of the green light that the court gave for prisoners’ complaints about the general conditions of their confinement, as noted by the New York Times. The fact that the judges ruled that “courts may oversee conditions at the prison as part of a habeas corpus lawsuit” is particularly satisfying, given that, in 2010 and 2011, after around three dozen prisoners had their habeas corpus petitions granted by the District Court, right-wing judges on the D.C. Circuit Court issued a number of rulings designed to make sure that it would be impossible for any more prisoners to have their habeas petitions granted. These new rules, ordering the lower court judges to regard anything the government presented as evidence as accurate with which were so successful that, since July 2010, no prisoner has had their habeas corpus petition granted. See my recently updated definitive Guantánamo habeas list (introduced here) for further information.

However, with D.C. Circuit Court judges overturning two of the only convictions in Guantánamo’s military commission trial system, in October 2012 and January 2013, largely discrediting the entire system, and with one of the court’s judges, Judge Harry T. Edwards, openly criticizing the baleful effects of his colleagues’ habeas rulings in two recent rulings (see here and here), it look as though perhaps, legally, the tide is finally turning …

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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