Judge: I can’t stop Guantanamo force-feeding, but Obama can

McClatchy Washington BureauJuly 8, 2013 

WASHINGTON A federal judge voiced sympathy Monday for Guantanamo Bay detainees but said she was powerless to stop force-feeding by U.S. authorities.

Ruling just before Ramadan, the monthlong holiday when pious Muslims fast during the day, Senior U.S. District Judge Gladys Kessler said she lacked the legal jurisdiction to stop the force-feeding program challenged by four detainees. At the same time, Kessler all but urged President Barack Obama to take action as she underscored the unpleasant feeding regime that’s being meted out to detainees who’ve gone on hunger strikes.

“It is perfectly clear . . . that forced-feeding is a painful, humiliating and degrading process,” Kessler wrote.

Forty-five Guantanamo Bay detainees are currently being force-fed, out of 106 who are known to be on hunger strikes. The force-feeding takes place twice a day, as guards restrain the detainees in chairs and medical technicians snake tubes through their nostrils and into their stomachs so that liquid nutrients may be forced in.

While the Obama administration, in legal filings, stressed the “timely, compassionate, quality” health care the detainees are getting, Kessler noted that the detainees “set out in great details in (their) papers what appears to be a consensus that forced-feeding of prisoners violates Article 7 of the International Covenant on Civil and Political Rights, which prohibits torture or cruel, inhumane and degrading treatment."

Kessler also quoted Obama’s own criticism of force-feeding from a speech May 23.

"Look at the current situation, where we are force-feeding detainees who are holding a hunger strike,” the president said in the excerpt Kessler quoted. “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.”

Four detainees, each of whom has been cleared for release from Guantanamo, challenged the force-feeding in court and asked that Kessler rule quickly before the start of Ramadan this week. One, Jihad Dihab, has been held captive for 11 years and, Kessler noted, was “cleared for release in 2009.”

“Being strapped to a chair and having a tube forcibly inserted through one’s nostrils and into one’s stomach is dishonorable and degrading,” the detainees argued in their legal brief. “It falls within the ambit of torture or other forms of inhumane treatment.”

Defense Department officials have said they’ll conduct the force-feeding at night, to comport with Ramadan’s proscription against daytime eating.

The 75-year-old Kessler, whom President Bill Clinton appointed to the federal bench in 1994, said Congress essentially had tied her hands. Even if she wanted to act, she couldn’t.

A federal law says “no court, justice or judge shall have jurisdiction” to consider legal actions concerning the treatment or “conditions of confinement” of those who “have been properly detained as an enemy combatant.” Citing the same law, a federal judge had determined in 2009 that the court couldn’t intervene to stop a force-feeding for a Guantanamo Bay detainee, and Kessler said in her four-page decision Monday that the same reasoning bound her now.

The “one individual who does have the authority to address the issue,” Kessler said, is Obama, who she noted is the commander in chief.

Three other detainees have filed a similar challenge through another judge.

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10

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