Guantanamo: Making the unbearable a little less unbearable

International media attention on the mass hunger strikes last spring propelled Guantanamo back onto the radar.

Although the govt has branded all detainees dangerous terrorists, it has charged only a handful of them, writes Hafetz [Reuters]

A federal appeals court in Washington, DC recently ruled that Guantanamo detainees could bring legal challenges to their conditions of confinement. The court’s decision in Aamer v. Obama centres on an attempt by three detainees engaged in a hunger strike to obtain an injunction preventing the military from subjecting them to enteral force-feeding, a painful process in which liquid nutrients are administered through tubes stuck down the nose and into the stomach.

Although the appeals court refused to issue the injunction, it said that judges had authority to hear a prisoner’s claims about his treatment at the detention centre. The ruling sends a mixed signal, highlighting the ambivalence of courts about their role in the long-running legal battle over Guantanamo.

Fault Lines – Life after Guantanamo

On the one hand, the decision marks another victory for the principle of judicial access. In 2008, the US Supreme Court ruled in Boumediene v. Bush that Guantanamo detainees had the constitutional right to challenge their detention through habeas corpus.

The government, nevertheless, argued that Boumediene meant detainees could challenge only the legality of their detention, not the legality of their treatment in detention. Their conditions of confinement, the government maintained, remain within the discretion of the military.

The DC Circuit rejected this restriction on judicial authority, finding that habeas corpus was sufficiently broad to encompass claims addressing conditions of confinement as well as challenges to the detention itself. The ruling thus paves the way for litigation on a host of treatment-related issues, including the government’s controversial policy of searching detainees’ groin areas, which is the subject of another case now pending before the appeals court.

Aamer, however, stopped short of granting the detainees any relief. The Court held that the petitioners had failed to show a likelihood of success on their claim that the force-feeding protocol violates a constitutional right to be free from unwanted medical treatment. 

The court reached this conclusion by applying the legal standard for challenges brought by convicted prisoners – a standard that unsurprisingly offers wide latitude to prison officials. As described in the Supreme Court’s 1987 decision in Turner v. Safley, prison regulations may infringe on an inmate’s constitutional rights as long as the regulation “is reasonably related to legitimate penological interests”. In other words, as long as the regulation is not arbitrary or irrational, it stands a good chance of passing muster.

The Turner standard is rooted not only in the perceived necessities of running correctional institutions, but also in the belief that those imprisoned for committing crimes deserve less constitutional protection. But herein lies Guantanamo’s enduring contradiction. Although the government has branded all the detainees dangerous terrorists, it has charged only a handful of them with a crime. 

As long as they have jurisdiction, federal courts can help ensure that conditions at Guantanamo remain humane for as long as the prison stays open.

The contradiction of superimposing a standard meant for convicted prisoners on individuals whose confinement is supposedly nonpunitive – akin to the detention of prisoners of war – is even greater in Aamer since the three detainees there had been cleared for release, meaning the US government no longer views them as a threat to national security.

The government supplied two justifications for its force-feeding protocol: Preserving the lives of those in its custody and maintaining security and discipline in the detention facility. 

The court found both persuasive. It explained that, absent force-feeding, prison officials had to choose between giving in to the inmate’s demands, which could cause other inmates to copy the same behaviour to manipulate the system to obtain a change in conditions, or letting the inmate die, which besides being a harm in its own right, could prompt a reaction from other inmates that jeopardises institutional security and safety.

The reality is that hunger strikes are a public relations nightmare for the United States. They have an unparalleled ability to focus the world’s attention on the ongoing plight of men held for more than a decade, men whose situation is so desperate they would rather starve themselves than go on living in legal limbo. Indeed, it was the international media attention on the mass hunger strikes last spring that propelled Guantanamo back onto the public radar, causing President Barack Obama to reenergise his moribund efforts to repatriate prisoners and close the detention centre.  

Force-feeding may help maintain internal discipline. But it is also meant to break the hunger strikes and avoid the embarrassment of more fatalities at the prison camp, where nine prisoners have died already.

Although the appeals court refused to grant the detainees any relief in Aamer, it did leave the door ajar to new challenges down the road. It suggested, for example, that the detainees could attempt to show that even if force-feeding is not inherently unconstitutional, the current protocol is being applied in an unconstitutional manner because it subjects detainees to this treatment before they are at risk of death. 

Obama renews promise to close Guantanamo

While judges cannot ban force-feeding outright, they may require that it be applied in a manner that shows greater respect for the autonomy and humanity of the detainees.

Keeping courthouse doors open is important. It allows judges to rein in government officials when they go too far, as they have repeatedly done in the war on terror. The Supreme Court, for example, had an important hand in eliminating torture and ensuring that baseline protections of the Geneva Conventions apply to all individuals in US custody, including suspected terrorists. 

As long as they have jurisdiction, federal courts can help ensure that conditions at Guantanamo remain humane for as long as the prison stays open.  

But judicial review of prison conditions will have only a limited impact. Aamer’s adoption of the same deferential standard courts apply to lawsuits by convicted prisoners will make it difficult for detainees to prevail. More fundamentally, litigation over prison conditions will not alter underlying reality of indefinite confinement at Guantanamo. It can only make the unbearable a little less unbearable.

Jonathan Hafetz is Associate Professor of Law at Seton Hall University School of Law and the author, most recently, of Habeas Corpus after 9/11: Confronting America’s New Global Detention System.