FD Editor’s Note: Ah, but he won’t! He can, but he won’t. Remember this.
[art_thumbnail align=”right”]WASHINGTON — A federal judge voiced sympathy Monday for hunger-striking Guantánamo Bay detainees but said she had no authority to stop the Pentagon from carrying out its “painful” and “degrading” twice daily force-feedings.
Ruling just before Ramadan, the month-long holiday when traditional Muslims fast by day, U.S. District Judge Gladys Kessler said she lacked the legal jurisdiction to intervene in the prison in southeast Cuba. At the same time, she all-but urged President Barack Obama to take action.
As of Monday, the military reported 45 of 106 hunger strikers at the Guantánamo prison of 166 captives were listed for forced-feedings. Guards bring a detainee to a restraint chair where Navy medical staff snake a tube up a captive’s nose and into his stomach so that liquid nutrients can be pumped 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.”
“Forced-feeding is a painful, humiliating and degrading process,” Kessler declared.
Kessler also quoted Obama’s own criticism of force-feeding during a national-security speech May 23.
“Look at the current situation, where we are force-feeding detainees who are holding a hunger strike,” the president said. “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.”
At the Pentagon, Army Lt. Col. Todd Breasseale told the Associated Press that the president has also said the government would not allow Guantánamo prisoners to harm themselves. “We will not allow them to commit suicide,” Breasseale said. “Not with hoarded pills, not with hand-fashioned weapons, and not via self- or peer-imposed starvation.”
Four detainees, each of whom has been cleared for release from Guantánamo, challenged the force-feeding at the U.S. District Court in D.C. Kessler ruled in the case of one — Jihad Dihab, a 41-year-old Syrian captive of 11 years who, the judge 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.”
The Pentagon said in the court filing that, barring “any unforeseen emergency or operational issues,” U.S. medical forces will do the force-feeding at night during the month of Ramadan to comport with Islam’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 determined in 2009 that the court couldn’t stop a force-feeding of another Guantánamo 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, Rosemary Collyer, in the same courthouse as Kessler at 333 Constitution Ave., 1.5 miles away from the White House.