Sen. Dianne Feinstein Urges Pentagon to End “Unnecessary” Force-Feeding at Guantánamo

Sen. Dianne Feinstein, the vice-chair of the Senate Intelligence Committee, recently sent a letter to Ashton Carter, the new defense secretary, urging him to “end the unnecessary force-feedings of detainees at the Guantánamo Bay detention facility.”

Sen. Feinstein, who, until recently, was chair of the committee, and oversaw the creation of the hugely important report into the CIA’s use of torture whose executive summary was released in December, has long been a critic of Guantánamo. After a visit to the prison in July 2013, with Sen. Dick Durbin, she and Durbin “asked President Barack Obama to order the Pentagon to stop routinely force-feeding hunger strikers at the U.S. Navy base at Guantánamo and adopt a model that feeds out of medical necessity, like in the federal prison system,” as the Miami Herald described it.

As she noted in her letter to Ashton Carter, “The hunger strikes themselves stem in part to the fact that many detainees have remained in legal limbo for more than a decade and have given up hope. Therefore, it is imperative that the Administration outline a formal process to permanently close the Guantánamo facility as soon as possible. I look forward to continue working with you to achieve that end.”

As well as urging an end to the force-feeding at Guantánamo — which is what her reference to “unnecessary” force-feeding meant — Sen. Feinstein urged Carter (and the Obama administration) to “adopt the recommendation of a recent report by the Defense Health Board that leaders at the Department of Defense should ‘excuse health care professionals from performing medical procedures that violate their professional code of ethics,’ such as force-feeding.”

That report, issued on March 3, was entitled, “Ethical Guidelines and Practices for US Military Medical Professionals,” and, as Sen. Feinstein stated, the Defense Health Board, a federal advisory committee to the Secretary of Defense, noted in it that “the practice of force-feeding has created conflicts between the role of military health professionals as members of the Armed Forces and their obligations as health care providers.”

Sen. Feinstein reminded the defense secretary that, in its Declaration of Malta, in 1991, the World Medical Association stated that force-feeding is “never ethically acceptable,” and that force-feeding accompanied by coercion, force or use of physical restraints “is a form of inhuman and degrading treatment.”

Sen. Feinstein also explained how, in its report, the Defense Health Board also explained that the American Nurses Association “has been monitoring the force-feeding of detainees at Guantánamo Bay for approximately six years,” and that, “In response to the case of a Navy medical officer (a registered nurse) who refused to continue managing force-feedings of hunger strikers at Guantánamo and was reassigned to ‘alternative duties,’ the association issued a statement supporting the right of the medical officer to refuse to perform force-feedings.”

I wrote about the case of the nurse here, and am reassured by the support from the ANA (see this article) and Physicians for Human Rights, and the recognition, by the military, that “force-feeding people who are capable of making informed decisions about their own health is a violation of medical ethics and international law,” as a document obtained by Jason Leopold for Vice News in January revealed.

Sen. Feinstein also noted, “The statement and a letter to then-Secretary Hagel urged ‘military leadership to recognize the ethical code of conduct to which professional registered nurses are accountable.’ The Defense Health Board’s recommendation regarding health professionals’ objections based on ethical principles is in line with the views of the American Nurses Association.”

Sen. Feinstein also demanded that, “[i]f force-feeding continues at Guantánamo,” the Department of Defense “must at least observe the safeguards and oversight mechanisms established at US Bureau of Prisons facilities,” where, “according to the Defense Health Board report, the US Federal Bureau of Prisons usually does not use a force-feeding restraining chair; it must report to a sentencing judge as to what it did, and the final authority in prisons is the physician.”

That is very different to Guantánamo, of course, where decisions about force-feeding are made not on a medical basis, but according to the desires of the military.

Sen. Feinstein also “requested access to videotapes of force-feedings of detainees at Guantánamo,” repeating a request she had made last year, which, as she added, had been declined in a letter dated December 3, 2014, “on the grounds that public release of these videotapes is not imminent.”

The tapes are videotapes of force-feeding and “forcible cell extractions” that a Syrian prisoner, Abu Wa’el Dhiab, spent most of last year seeking the release of through the US courts, before his release in Uruguay in December. As Sen. Feinstein explained, “This response is unacceptable; the public release of the videotapes has nothing to do my request for the videotapes. I hope that under your leadership at the Department of Defense, you will re-examine this issue and provide the tapes that I have requested.”

The Pentagon’s spokesman for Guantánamo issues, Army Lt. Col. Myles B. Caggins III, said in an email to Carol Rosenberg of the Miami Herald that the Defense Department will respond to Sen. Feinstein’s letter “through official correspondence channels.”

Lawyers and media organizations still seek public release of force-feeding videos

Access to the force-feeding videos is also still being pursued through the courts. In November, disappointingly, 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, and as I wrote about at the time. The month before, Judge Kessler had allowed the government a month’s delay when it came to complying with her order to release the videotapes — which a coalition of media organizations had actively been seeking — giving officials time to redact parts of the tapes to protect individuals involved, and other aspects of operations that they could legitimately claim needed to be keep secret.

The government subsequently tried to shut down all these unwelcome demands by appealing.

As Kevin Gosztola explained in an article on FireDogLake, the Obama administration claimed that “the executive branch alone may decide whether to disclose previously classified videos of the force-feeding of a former Guantanamo Bay prisoner — even though the videos are judicial records and a judge should be able to unseal and release them to the public.”

As Gosztola proceeded to explain, “According to the Obama administration, an executive order on classified information, which Obama issued during his first months in office, is binding on the judicial branch and precludes the unsealing of videos.” Judge Kessler, however, disagreed, because this “would displace the court’s power to seal its own record, putting that authority in the government’s hands alone.” She added, “Although the executive has the sole authority to determine what information is properly classified for its purposes, only the judiciary has the discretion to seal or unseal a judicial record.”

Abu Wa’el Dhiab’s lawyers — and the media outlets — agree. In a recent filing, for a hearing in the appeals court (the D.C. Circuit Court), scheduled for May 8, the lawyers stated, “Control over the classified filings in this case — including the videotapes — is a judicial branch power upon which the executive branch cannot intrude by operation of executive orders.”

As Gosztola described it, “Constitutional separation of powers grants the court authority to order public disclosure.” Or as the lawyers put it, “Neither the district court nor this court is beholden to the executive branch to keep these videotapes wholly secret from the American public.”

I hope the D.C. Circuit Court judges agree — although that is far from certain — as the court, with notable exceptions, has far too frequently opposed any effort by prisoners to challenge the conditions of their detention.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter. He is the co-founder of the “Close Guantánamo” campaign, the co-director of “We Stand With Shaker,” calling for the immediate release from Guantánamo of Shaker Aamer, the last British resident in the prison, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — 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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