Analysis: US Courts Unlikely to Defend Human Rights of Guantanamo Hunger Strikers
As human rights advocates call it 'torture' the US justice system puts prison 'order' first
As a mass hunger strike continues within the offshore US prison camp at Guantanamo Bay, a Reuters legal analysis on Friday shows that US courts are likely to be of little use to the strike's participants.
Critics of Obama's policy to force feed the prisoners call strapping men to a chair and forcing a feeding tube into their a stomach a form of torture, but the president has spoken little about the controversial practice and done nothing to address the grievances of the detainees who claim they have no other recourse to fight their indefinite detention by a US government that will neither charge them, try them, or set them free.
Most U.S. judges who have examined forced feeding in prisons have concluded that the measure may violate the rights of inmates to control their own bodies and to privacy - rights rooted in the U.S. Constitution and in common law. But they have found that the needs of operating a prison are more important.
Courts generally view a prison hunger strike as a suicide attempt, and they have ruled wardens have authority to stop suicide attempts as part of their mandate to preserve order.
"If prisoners were allowed to kill themselves, prisons would find it even more difficult than they do to maintain discipline, because of the effect of a suicide in agitating the other prisoners," Judge Richard Posner wrote for a Chicago-based appeals court in 2006 in a case involving a Wisconsin prison that punished a disobedient inmate by refusing him food.
The US military announced on Thursday that 94 of the 166 prisoners at the prison camp were on hunger strike. An accurate assessment of the situation has been difficult to come by, with detainees' lawyers and official military statements the basis for much of what's known.
A report from the International Red Cross is underway following their recent investigation, but it is unclear how much of that information will be made public.
Reuters analysis on Friday includes some of what is known about the forced feedings and how some of the lawyers of those striking are managing the situation:
As described by Guantanamo officials, a feeding tube is lubricated and inserted through the nose down to the stomach for the two hours it takes liquid food to pass through. In general, hunger strikers continue to drink water.
Human rights advocates and many doctors decry forced feeding of hunger strikers as a violation of personal liberty and medical ethics with risks of medical complications such as discomfort, bleeding, nausea and throat sores. The 65-year-old World Medical Association, made up of 100 national medical associations, has said it is unethical and never justified to force-feed a mentally competent adult.
Carlos Warner, a federal public defender who represents 11 Guantanamo detainees, including Kuwaiti hunger striker Faiz al Kandari, said detainee lawyers are split on the issue.
Some "have a clear position that the government should not be force-feeding," and have unsuccessfully made their argument in federal court in Washington, D.C., Warner said. "Other lawyers are of the opinion that their clients should not die of hunger before we have a chance to free them."
Despite finding little support for the ongoing protest in US courts, which have long deferred to executive authority when it comes to overseeing the rights and treatment of detainees, the prisoners' attempt to reassert themselves in the US political conversation through use of the hunger strike has not been wholly unsuccessful.
As Carol Rosenberg at the Miami Herald reports, Senator Diane Feinstein (D-CA) on Thursday sent a letter citing her concern over the hunger strike and urging the White House to review or revive its attempts to release those men who have been cleared of wrongdoing.
Feinstein "specifically asked the White House to review the files of 86 detainees already cleared for transfer by the U.S. intelligence agencies," Rosenberg reports, adding the letter followed Feinstein's meeting with the International Red Cross who described "detainee desperation" inside the prison as “unprecedented.”
Earlier this week, US human rights advocates in New York staged a solidarity protest with the prisoners, calling for their humane treatment and an end to their prolonged—and seemingly indefinite—imprisonment. Proving at least the usefulness of the federal courthouse steps in New York on Monday, twelve of them were arrested after ignoring orders to disperse from them.