Here’s a query: Could the US government march Shaker Aamer and my other Guantanamo clients from their cells, line them up single-file against the recreation yard wall, and execute them by firing squad?
Could it strap them to a specially-made gurney twice a day and water-board them before an interrogation?
Could it photograph them naked to and from each meeting with their lawyers?
Unless you are Ted Cruz, you probably think the answer to these questions is ‘no’. Yet this past Friday in the Court of Appeals, lawyers in Obama’s Justice Department took a position that would bless all of these abuses – because according to their theory, no judge has the power to review them.
The Department of Justice made this claim during oral arguments in the Guantanamo force-feeding case. The actual question the judges grappled with was: Does the Obama Administration have the authority to take a hunger-striking Guantanamo prisoner to a specially-made chair twice a day, pass a plastic tube up his nostril, down his throat and into his stomach, and pump nutrients in?
Obama’s Department of Justice says it does. Its lawyers argued that US courts have no authority to investigate any aspect of a Guantanamo prisoner’s treatment. The great writ of habeas corpus, they said, is only about whether the door of the jail swings open. What goes on behind the door is beyond the reach of any judge.
In this place, isn’t the last thing I have left the ability to decide what to do with my own life? Will the military be allowed to take this from me too?
The scenarios above show why this is ethically wrong; the government could kill my clients and the courts would be powerless to stop it. But it is also wrong in law. Judges in Britain used habeas corpus to stop husbands beating their wives as early as 1671. Twentieth century US cases show prisoners seeking help in habeas when they were beaten by other inmates; when they required hospitalisation; when they needed special care because of their youth; and so on.
The President’s lawyers also insist Guantanamo’s force-feeding policy is humane. They flatly refuse to use the phrase “force-feeding”, insisting on calling it “enteral” feeding throughout the appeal. The judges, to their credit, did not.
In fact, force-feeding at Guantanamo is painful, degrading, and violates international law. A US general admitted in a 2006 interview that the force-feeding process – still in use today – was specifically designed to not be “convenient”.
No surprise, then, that every prisoner to speak on the matter describes it as great pain. Here’s what our clients report, none of which the government disputed in the case:
“Straps and shackles are put in place and only the chains on the hands are released. Then all the straps are tightened forcefully so that I cannot move or breathe. In addition to this, there are six riot force members: one holding the head and putting his fingers on the throat and neck from below the chin with severe pressure, the second and third hold the hands, the fourth and fifth hold the legs, and then the nurse inserts the tube.”
That was Abu Wael Dhiab, a Syrian prisoner who has been cleared for release. And here’s Ahmed Belbacha, cleared since 2007:
“I have thrown up myself sometimes because of the feeding. Especially at bedtime, I feel ill and start to throw up. I try to do it when they will not notice – because if they see me they will put me in the chair and feed me again. That is worse than throwing up. When they feed us, they shut off the water in the cell for one hour afterwards. If they see somebody throwing up within that hour, they repeat the feeding.”
And finally, Nabil Hadjarab, cleared since 2007 and released in August to Algeria while the case was pending: “The chair reminds me of an execution chair. Force-feeding us,” he says, “is a way of burying what we have to say. In this place, isn’t the last thing I have left the ability to decide what to do with my own life? Will the military be allowed to take this from me too?”
Thankfully, this grim ordeal is over for Nabil – but it is not for 15 others. (The government rushed to proclaim the hunger strike ‘over’ in September, despite the fact that by the military’s own figures 15 of those are still on a hunger strike and are being force-fed twice a day.)
At stake in this case is whether US judges have the power to lift the veil that is over what happens at Guantanamo. One hundred and sixty-four prisoners at Guantanamo remain there today. Most have been there for over a decade, most of them were cleared for release for most of that time.
Twice-a-day, hunger-striking men at Guantanamo are put through a procedure that has been condemned by the head of the American Medical Association, the United Nations, and District Judge Gladys Kessler.
And yet the Obama Administration persists in defending it.
This may be the most troubling aspect of this case: The yawning chasm between the President’s public speeches about Guantanamo and what his lawyers say to Federal judges.
Here is Barack Obama in May:
“Look at the current situation, where we are force-feeding detainees who are being held on a hunger strike. … Is this who we are? Is that something our Founders foresaw? Is that the America we want to leave our children? Our sense of justice is stronger than that.
There was no sign of that sense of justice in the Administration’s lawyers today.
On behalf of my clients left in Guantanamo, and all of the force-fed men, we can only hope that the judges will step in to close this gap.
Cori Crider is the legal director at Reprieve, a legal aid organisation.