May 25, 2014
As I explained last week, the Guantánamo prisoners secured a massive court victory on May 16, when a federal court judge ordered the government to halt the force-feeding of Abu Wa’el Dhiab, a Syrian prisoner. He is one of 77 men still held (out of 154 in total) who have been cleared for release from the prison, and he is on a hunger strike and being force-fed, in large part because of his despair at ever being released, despite being told in January 2010 that the US government no longer wished to hold him.
The judge in question, Judge Gladys Kessler, also ordered the government to preserve video evidence of his force-feeding, to stop him being subjected to "forcible cell extractions" — in which guards in riot gear storm prisoner’s cells and move them to be force-fed if they refuse to go — and to preserve all evidence of his "forcible cell extractions."
This was the first time a judge had intervened to hold the government to account for its treatment of prisoners (following a helpful appeals court ruling in February), and on Wednesday Judge Kessler held a meeting with Mr. Dhiab’s lawyers and lawyers from the Justice Department at which she ordered the government to hand over videotapes and Mr. Dhiab’s medical records to his lawyers.
As I described it in a well-received article on Thursday:
As the Guardian described it, the US government "conceded that there are 34 videos showing the forcible feeding" of Abu Wa’el Dhiab," adding, "The analogue video cassettes are part of a broader set of 136 videos showing Dhiab being forcibly removed from his cell by Guantánamo Bay guards bringing the hunger striker to be fed enterally."
Judge Kessler ordered these 34 videotapes to be handed over, although, as the Guardian noted, she "did not order the tapes to be released to the public." Instead, the government "will have to transfer the classified tapes from Guantánamo to a secured facility in the Washington D.C. area for his lawyers to view, after faces and other identifying information of Guantánamo personnel and facilities are censored."
The Guardian added that the tapes of Dhiab’s feedings "are said to range between 15 minutes to half an hour each, suggesting the government possesses at least eight hours of footage of just one detainee enteral feeding." They are also "said to be in a microcassette format," and, as the Guardian described it, Jon B. Eisenberg "said they would have to be digitized for viewing, owing to formatting difficulties impacting declassified playback." Eisenberg quipped, "Pretend it’s 1955, that’s where the technology is."
Judge Kessler also ordered the government to produce Mr. Dhiab’s medical records. As Reprieve noted, "These records should allow the court to make a proper assessment of the traumatic impact of force-feeding on Mr. Dhiab’s declining health." Importantly, as Reprieve also noted, "For the time being, the existing injunction remains in place," meaning that Mr. Dhiab cannot be force-fed or subjected to "forcible cell extractions."
Judge Kessler reluctantly drops her restraining order
On Thursday, however, Judge Kessler reluctantly lifted the stay on Mr. Dhiab’s force-feeding. She noted that, at the status hearing on Wednesday, she had "strongly suggested that the Parties come to a compromise about the procedures used to enterally feed" Mr. Dhiab, because his "physical condition was swiftly deteriorating, in large part because he was refusing food and/or water."
She pointed out that Mr. Dhiab had "indicated his willingness to be enterally fed, if it could be done at the hospital in Guantánamo Bay, if he could be spared the agony of having the feeding tubes inserted and removed for each feeding, and if he could be spared the pain and discomfort of the restraint chair." She added, "If he could have been enterally fed in that manner, it would have then been possible to litigate his plea to enjoin certain practices used in his force feedings in a civilized and legally appropriate manner." However, "The Department of Defense refused to make these compromises."
As a result, Judge Kessler noted:
The Court is now faced with an anguishing Hobson’s choice: reissue another Temporary Restraining Order ('TRO’) despite the very real probability that Mr. Dhiab will die, because he has indicated a continuing desire to refuse to eat and/or drink liquids, or refuse to issue the TRO and allow the medical personnel on the scene to take the medical actions to keep Mr. Dhiab alive, but at the possible cost of great pain and suffering.
The Court is in no position to make the complex medical decisions necessary to keep Mr. Dhiab alive. Thanks to the intransigence of the Department of Defense, Mr. Dhiab may well suffer unnecessary pain from certain enteral feeding practices and forcible cell extractions. However, the Court simply cannot let Mr. Dhiab die.
The Court does, however, remind all personnel that they should abide by their own Standard Operating Protocols, and that the standard for enteral feeding is whether Mr. Dhiab is actually facing an "imminent risk of death or great bodily injury."
Judge Kessler’s June 16 deadline for the production of videotapes, medical records and other documents
Judge Kessler also stated that, the day after, she would "issue a scheduling order" to "facilitate the speedy exchange of discovery such that the Court can reach the merits of Mr. Dhiab’s Application," and in that order she told the government to "produce Petitioner’s medical records from April 9, 2013 to December 31, 2013," and to "produce all videotapes made between April 9, 2013, and February 19, 2014, that record both Petitioner’s Forcible Cell Extraction and subsequent enteral feeding" by June 10.
She also ordered he government to "file a list of all current Standard Operating Procedures/Protocols directly addressing enteral feeding and/or the use of a restraint chair at Guantanamo Bay" by the same date, as well as ordering officials to "keep the Court fully apprised as to Petitioner’s medical condition," and she scheduled a status conference for June 16, at 10am, "to address any outstanding discovery issues and set a date for a Motion Hearing."
As Reprieve explained in a press release, the Motion Hearing will determine "[t]he wider issue of whether force-feeding at Guantánamo is illegal … once the tapes and other key evidence have been reviewed." For now, however, "he will continue to be subjected to force-feeding while the case is underway."
During a phone call with his lawyers on Thursday, Mr Dhiab "said he would be willing to be subjected to artificial nutrition if it were done humanely, at the prison’s hospital or with minimal painful intubation, as was the case during the first mass hunger strike at the prison in 2005 and 2006," largely echoing what Judge Kessler had noted.
Ironically, Judge Kessler’s scheduling order took place exactly a year after President Obama promised to resume releasing prisoners from Guantánamo, when, in a major speech on national security issues, delivering during the prison-wide hunger strike that reawakened indignation around the world at the continued existence of Guantánamo, he stated, "Look at the current situation, where we are force-feeding detainees who are holding a hunger strike … Is that who we are? Is that something that our founders foresaw? Is that the America we want to leave to our children? Our sense of justice is stronger than that."
Despite the fine words, Abu Wa’el Dhiab is on a hunger strike and being force-fed because, although he has been cleared for release, he is in despair because of the president’s failure to release him.
In response to the latest developments in the case, Jon B. Eisenberg said, "I am stunned that the Department of Defense refused to agree to the reasonable compromise Mr. Dhiab proposed, but the real responsibility lies at the door of President Obama, who utters lofty words but fails to stop the terrible things that are happening at Guantánamo Bay on his watch. Mr. Dhiab is about to suffer some awful abuse, but I have faith in his capacity to endure it."
Cori Crider, Reprieve’s Strategic Director, said, "The government’s refusal to make a basic commitment to treat Mr. Dhiab with decency tells you all you need to know about what is really going on at Gitmo. And where is the White House in all this? It’s been a year since the President Obama said force-feeding detainees was not 'who we are’ and pledged a fresh push to close the prison. Well, is he, the commander-in-chief of the people, abusing Mr. Dhiab, or is he not? He could put my cleared client on a plane today if he had the will to do it."
I couldn’t agree more, and, following the day of action on Guantánamo on Friday, when protests were held across America and around the world, calling for renewed commitment on the president’s part to freeing cleared prisoners and closing the prison, I urge readers to call the White House on 202-456-1111 or 202-456-1414 — or to submit a comment online — asking President Obama to send Abu Wa’el Dhiab and five other men cleared for release to Uruguay, where President Mujica has offered them a new home, and to release, as soon as possible, all of the 77 prisoners that his own reviewing bodies have said should no longer be held indefinitely or put forward for trials.
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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