US Judge Orders Guantánamo Authorities to Allow Independent Doctors to Assess Health of Hunger Striker Abu Wa’el Dhiab


Last week there was some good news regarding Guantánamo in the US courts in the long-running case of Abu Wa’el Dhiab, a hunger striker who has spent the last 14 months attempting to get the US courts to stop him being force-fed, and who, in the last three months, briefly secured an order stopping his force-feeding, and also secured access for his lawyers to videotapes of his force-feeding and the “forcible cell extractions” used to remove him from his cell. In response, the authorities have now taken to confiscating his wheelchair, and, as Reprieve put it, “manhandling him to be force-fed.”

On August 12, District Judge Gladys 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 “has 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.”

Mr. Dhiab is one of 75 men still held (out of the remaining 149 prisoners) who were cleared for release by the high-level, inter-agency Guantánamo Review Task Force  appointed by President Obama shortly after taking office in January 2009. He has not been released because he cannot be safely repatriated and a third country must be found that will take him.

It was recently revealed that he is one of six men who, it is expected, will soon be given new homes in Uruguay, but for the last five years he, like other cleared prisoners, has been stuck in Guantánamo as lawmakers raised obstacles cynically designed to prevent them from being freed, and President Obama refused to spend political capital prioritizing their release. Mr. Dhiab’s suffering is such that he is now confined to a wheelchair, and his despair at ever being reunited with is wife and his four children is such that last year he embarked on a hunger strike — and ended up being painfully force-fed — as part of the prison-wide hunger strike that reawakened the world’s media to the plight of the Guantánamo prisoners, and forced President Obama to promise renewed action regarding the release of prisoners.

As Reprieve explained, Judge Kessler also ordered Guantánamo’s warden, Col. John Bogdan, a controversial figure whose heavy-handed approach to security seems to have played a major role in provoking last year’s hunger strike, “to answer three questions in writing under oath regarding his involvement in the punitive force-feeding and FCE (Forcible Cell Extraction) tactics used at Guantánamo.” In addition, “Current and former senior medical officers have been ordered to each answer seven questions about their role in the force-feedings.” Reprieve also noted that Col. Bogdan “instituted a policy during his tenure in which wheelchair-bound hunger-strikers have to be hauled to force-feedings by a riot squad, even if the detainee asks to go by himself.”

Mr. Dhiab’s lawyer Cori Crider, who is Reprieve’s Strategic Director, last saw her client during a visit three weeks ago and immediately submitted a sworn declaration to the court as part of the filing requesting an urgent independent medical examination. As was explained in a press release, Crider wrote that his health has “deteriorated to the point that she now fears his life is at risk,” adding that he “appeared frail and listless, his face had no color and [he] spent the afternoon lying prostate on the floor, his agony evidently unrelieved by pain medication he had been given.” She also described how he had “clutched his side in pain and grimaced repeatedly … as he lay on the floor.”

Crider added that, the day after she returned from her visit, Mr. Dhiab was “unable to come to the phone … compounding worries for his state,” and explained that if he “does not now receive a medical assessment independent of the military command structure,” he “may become incurably ill or worse.”

On August 7, Reprieve explained in another press release that, in hearings prior to Judge Kessler’s latest ruling, Justice Department lawyers claimed that Mr. Dhiab was “very functional,” and refused to tell the District Court in Washington D.C. why Guantánamo officials confiscated his wheelchair, calling questions about its policies “time-consuming and burdensome.”

The DoJ lawyers also said it was “improper” for Mr. Dhiab’s lawyers “to ask why Guantánamo authorities forbade him from using a wheelchair to be moved to the force-feeding chair,” as Reprieve put it, noting also that the US government “refused to respond to written questions about its force-feeding policy.”

Another ruling by Judge Kessler regarding government secrecy

Providing further details, Courthouse News reported on August 15 that Judge Kessler’s order for Col. Bogdan asks “why he would not let Dhiab go to his feeding by wheelchair, whether he considered alternatives to a restraint chair, the reason behind conducting force-feedings every time a detainee drops below 85 percent of his ideal body weight, and other queries.”

The author of the article, Adam Klasfeld, also noted that Judge Kessler “wanted to know whether risk of infection increases from ‘keeping a nasogastric feeding tube in place for days or weeks at a time or from multiple daily insertions,’ the ‘largest quantity and quickest speed of enteral feeding that a patient can tolerate comfortably,’ and if the process is ‘unnecessarily painful or could be made less painful.'”

As the article also explained, Col. Bogdan “has until Sept. 5 to answer the questions, and Dhiab’s lawyers must submit expert medical reports about preferred practices ten days later.”

The Courthouse News article was prompted by another ruling from Judge Kessler, this one granting a government request to “prohibit the distribution of, or discussion of, the Forcible Cell Extraction (‘FCE’) videotapes related to this case with any other counsel than the attorneys of record in this case and the security-cleared attorneys in three related cases.”

Interest in the the videotapes has come not just from lawyers, but from 16 major US news organizations who are seeking access to the tapes and who, on August 8, “criticized what they said was the Obama Administration’s ‘blunderbuss claims’ that disclosing the tapes would be harmful to national security,” as Reprieve described it, adding that the news organizations called the claims “illogical and implausible,” and “contradicted by the Government’s own past disclosures” of details about Guantánamo during press tours.

In its article, Courthouse News reflected on what Judge Kessler’s ruling about the secrecy of the videotapes might mean for the news organizations’ request, noting that, while the order “does not impact that request,” Judge Kessler noted that she “anticipates that consideration of that motion will, almost inevitably, raise some of the substantive arguments” addressed in it.

If a ruling is taken regarding the news organizations’ request, I will of course respond swiftly with my own commentary, but in the meantime it’s worth adding October 6 to your calendar — and also worth keeping an eye on the news for the anticipated release of Abu Wa’el Dhiab. As noted above, however, there are three other cases in which videotapes are being sought by prisoners, and I’ll be reporting soon on one of those cases.

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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9 Responses

  1. Andy Worthington says...

  2. the talking dog says...

    Meanwhile, the Washington Times, of all places, reports that the government of the US of A spent over $300,000 (half of it on Vanilla Ensure alone) to stockpile the nutritional liquid poured down the (oversize) feeding tubes at the very moment it was publicly denying that there even was a mass hunger strike.

    Kudos to Judge Kessler for (another) courageous ruling; hopefully, our old friends on the D.C. Circuit won’t stay or overrule her ruling before it can do any real good for Abu Wa’el Dhiab (or the other 148 prisoners of the American Empire at GTMO).

    On the bigger picture, I don’t see much hope that the Obama Administration will do much of anything on the GTMO front before the election in November (particularly as it is grappling with domestic social unrest in Missouri, the serial fiascos in Iraq, Afghanistan, Pakistan, Gaza, Ukraine, etc.) and a still anemic economy. Nothing to see here, folks… move along.

  3. Andy Worthington says...

    Thanks, TD. Very good to hear from you. Yes, my friend “the FOIA terrorist” Jason Leopold extracted that info about the huge expenditure on Ensure:
    Interesting that the Washington Times picked up on the story.
    As for Judge Kessler’s ruling, I expect to hear any day now that Abu Wa’el Dhiab has been removed from the picture, by being rehoused in Uruguay, although there are other prisoners queuing up to take over from him if he is freed – Emad Hassan, in particular springs to mind.
    And as for your conclusion, I sadly agree – and worry that, if the mid-terms go badly for Obama and the Democrats, there’ll be little progress for the last two years of Obama’s presidency.

  4. Andy Worthington says...

    On Facebook, Abdulkhaliq Mohamud wrote:

    Many thanks Andy.You are doing a great Job !

  5. Andy Worthington says...

    Nisrein M. Shabsogh wrote:

    Modern world worst dictatorship

  6. Andy Worthington says...

    Aisha Noor wrote:

    Great news, hope some good comes out of this

  7. Andy Worthington says...

    Thanks, Abdulkhaliq. Good to hear from you and to have your supportive words. Thanks also, Nisrein and Aisha. Every day I expect to hear that Abu Wa’el has been flown to Uruguay to begin a new life. However, the more these legal precedents are established, the hope is that it will be easier for other hunger strikers who are still held to exert serious pressure on the Obama administration and the Guantanamo authorities to find a political solution to the reasons for the hunger strike – by freeing all the men who have long been cleared for release.

  8. Andy Worthington says...

    Willy Bach wrote:

    On Guantanamo it is good to hear some slight movement, thanks to Judge Gladys Kessler. It is worrying that radically differing judgments depend on the disposition of the judge, not natural justice or sound logical interpretation of the law.

  9. Andy Worthington says...

    Great to hear from you, Willy. I hope the summer has been treating you well. I agree that it is worrying that different US judges generally come up with such different opinions depending on their disposition. Of course, the system is supposed to provide checks and balances with the three layers of courts – the District Courts, the appeals courts (the Circuit Courts) and the Supreme Court, but on Guantanamo and the “war on terror” the Supreme Court has been abdicating its responsibilities since June 2008, when the court led by Justice John Paul Stevens delivered its ruling, in Boumediene v. Bush, declaring that the prisoners at Guantanamo have constitutionally guaranteed habeas corpus rights. The D.C. Circuit Court largely killed off habeas corpus for the prisoners in 2010 and 2011, and the Supreme Court failed to wrest control back from them. As a result, we’re left with these innovative approaches, by lawyers at Reprieve and a few others, who are attempting to fill the void left by the judicial system with, as you note, mixed results depending on who the judges are. Thank goodness for Judge Kessler, at least!

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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 and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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