In the first trial weighing the legality of force-feeding methods at the Guantanamo Bay prison, U.S. government lawyers have tried to disparage doctors and refute medical assessments regarding the best practices and ethics for treating inmates who have engaged in hunger strikes to protest their indefinite confinements, often after being cleared for release.
The case before Judge Gladys Kessler in Washington D.C.’s District Court involves Abu Wa’el Dhiab, 43, a Syrian who ran a successful business in Afghanistan before the U.S. invaded 13 years ago. He fled, together with his wife and four children, to Pakistan where police seized him and turned him over to the U.S. – probably for a large bounty, as was the usual practice.
In summer 2002, Dhiab was brought to Guantanamo Bay where he was held without charge or trial. Though cleared for release in 2009, Dhiab remains at the notorious prison, using hunger strikes to protest his Kafkaesque existence. In response to the hunger strikes, he – like other inmates – has been roughly removed from his cell and strapped to a chair as tubes are forced down his throat to feed him.
It is the manner in which the force-feeding process is carried out that is primarily at issue in Dhiab’s case, including the forced cell extractions and the “five-point restraint chair” in which the head and limbs are tied down during the feeding.
Reprieve, a British-based human rights organization, filed a court challenge against Dhiab’s treatment with some of the legal skirmishing around whether the public will be allowed to see video of Dhiab being dragged from his cell and force-fed once or twice a day, a total of 1,300 times, according to his lawyer. In June, 16 news organizations intervened in Dhiab v Obama seeking the videos of Dhiab’s treatment.
While the government contended that the tapes must be kept secret to protect national security, Judge Kessler found that the government arguments were “unacceptably vague, speculative, lack specificity or are just plain implausible.” On Oct. 3, Judge Kessler ruled that unclassified versions of the videos may be “entered on the public docket.” This was a major setback for government lawyers.
Impugning the Witness
At times in their efforts to disparage the testimony of doctors, the junior-varsity team of Obama administration lawyers seemed to be practicing for more lucrative post-government medical-malpractice work, trying out character assassination and similar tactics.
Granted, it would have taken a government varsity or, better, an all-star legal team to cross-examine respected psychiatrists like Steven Xenakis, a retired Brigadier General, who told the court on Monday that prison military brass apparently overrode sound medical decisions regarding Dhiab.
Xenakis – along with Sondra Crosby, M.D., an associate professor of medicine at Boston University – painted a bleak picture of the prevalence of punitive measures divorced from best medical practices at Guantanamo. The government lawyers then tried to discredit Xenakis by hinting broadly that Xenakis was unreliable because he left the Army amid an investigation, a slur Xenakis promptly laid to rest.
Then, on Tuesday, things went so badly for the government lawyers that I almost felt sorry for them. All four of them with a bullpen of six more were outmatched by Reprieve’s soft-spoken star witness, Steven Miles, M.D., of the University of Minnesota’s Center for Bioethics.
With his impeccable credentials, Miles could be at the same time understated and brutal in his critique of Guantanamo prison’s blithe disregard for best medical practices. For example, he said he was “astonished” to learn that an olive oil lubricant was applied to the feeding tubes used on hunger-striking detainees because olive oil can cause chronic inflammatory pneumonia if it reaches the lungs. The resulting condition is difficult to detect as it might appear years later on x-rays looking like tuberculosis or lung-cancer.
“There is simply no debate about this. All the medical literature I’ve found said the lubricant had to be water-soluble,” Miles said.
I had noticed that in presenting their case, the government lawyers had showed slides indicating that the use of olive oil was stopped in June, and when the court took a break I asked Dr. Miles why. “Because I went ballistic as soon as I found out about it,” he said in a voice much louder than the normally restrained one in which he testified.
According to the Guardian’s Spencer Ackerman, Captain Tom Gresbach, a Guantanamo spokesman, has confirmed that the forced feedings now use water-based lubricant. He explained that change was made “to eliminate risk, albeit minimal, for olive oil to get into the bronchial tree and lungs, thereby possibly causing illness.”
Cross-examining Dr. Miles turned out to be a futile exercise and the government lawyers soon stopped trying. I could almost hear sighs of relief as he left with his luggage. I found myself wishing he were able to stay longer; I had a premonition that the government lawyers might try to impugn his testimony in his absence. My fear was justified.
Safe Even for Little Children
I found it odd that, no sooner had Dr. Miles left, the government began to disparage his testimony. It just seemed that if the government was going to try to impeach his testimony this should have been done while he was still around. One of the Reprieve lawyers objected but was overruled.
One of the issues that Dr. Miles addressed earlier was the diameter of the feeding tube, indicating that the 8 to 10 “French” size (3.3/3.6 millimeters in diameter) tube — needed to make a 90-degree turn at the back of the throat — was one of several reasons why frequent insertion could cause trauma and infection.
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Shortly after Dr. Miles had left the courtroom, one of the young government lawyers asserted, “What Dr. Miles said [about the tubes] was false.” The lawyer produced a chart from Brown University about using such tubes for small children. According to the chart, use of a size 8 or 10 “French” tube, which is what the government says is used with detainees is appropriate practice with small children.
Where is Dr. Miles, I thought, to respond to that? However, it seemed that he may have been alerted to the government’s maneuver and returned. I looked to the other side of the courtroom and there he was.
He whispered to one of the Reprieve lawyers, apparently suggesting that Reprieve should request a couple of minutes for rebuttal, since that would be all it would take for him to show the disingenuous nature of the evidence government lawyers were pushing.
It was late in the afternoon and we had been going non-stop for two hours. Judge Kessler was reluctant to allow Dr. Miles back on the stand but finally granted him “five minutes.” In his characteristically understated way, he exposed the government’s chicanery.
The Brown University chart had nothing to do with feeding – nothing to do with putting anything into a child. It had to do with a surgical procedure with several applications related to inserting a tube for suctioning stomach contents out of the body of a child. And, for that, a wider diameter or bore was more efficient.
Ouch was the expression at the table of government lawyers. “Does the government wish to cross-examine?” asked Judge Kessler. “No cross-examination,” was the reply.
Shame, thought I; are these gentlemen in the black suits consciously reflecting Dick Cheney’s “dark side” to sow confusion in the court? Are they getting paid by my taxes?
Plus ca change: The government attorneys’ repeated insistence on Tuesday that Dhiab was being fed only to save his life brought a flashback to eight years ago when two dozen Guantanamo detainees tried to starve themselves to death. They were strapped onto gurneys and plastic tubes were forced through their noses to force-feed enough nourishment to keep them alive, lest the Bush administration be embarrassed by their deaths.
But on June 10, 2006, three detainees committed gross insubordination by hanging themselves, the first successful suicides after 41attempts by some 25 individual detainees.
The three who killed themselves incurred the wrath of then Guantanamo commander, Rear Adm. Harry B. Harris, Jr., who announced that the suicides were “not an act of desperation, but an act of asymmetrical warfare against us.” In a similar spirit, Colleen Graffy, deputy assistant secretary of state for public diplomacy, told the BBC that the suicides “certainly (are) a good PR move to draw attention.”
How nice that Obama’s lawyers are backstopping those in Guantanamo who take such care to prevent any blot on our country’s Guantanamo detention regime that could result from a prisoner escaping in so insubordinate a way. Grotesque is the word that kept springing to my mind, as I watched the government lawyers in action Monday and Tuesday. Testimony is expected to be completed on Wednesday.
Though this case is focused on the means of force-feeding Guantanamo inmates, the backdrop is the continued existence of this netherworld prison which President Barack Obama vowed to close but which Congress has insisted be kept open.
As the public proceedings got under way on Tuesday, the indomitable advocate for justice, Eve Tetaz, removed her jacket to reveal an orange T-shirt with “SHUT DOWN GUANTANAMO” on the front, and “STOP TORTURE; WWW.WITNESS AGAINST TORTURE.ORG” on the back. But orange T-shirts were apparently a violation of courtroom etiquette and, after a brief scuffle, Eve was removed.
We extracted a promise from the guard that she would be allowed back in the courtroom but, instead, she was evicted from the building. We later learned that she was spared “forced cell extraction” treatment. Eve was merely handcuffed and then, with faux solicitousness, the Federal Protective Service, having successfully protected us all from Eve, condescendingly freed her to go home and sin no more.
Otherwise, Judge Gladys Kessler has done us a great favor in insisting that Dhiab v. Obama be a substantially open proceeding, so that even plain folks like you and me can go and watch. The more daunting task is to find ways to tell our fellow citizens what we have seen.
If anything qualifies for the description of a festering boil, Guantanamo does. We would do well to follow Dr. Martin Luther King’s dictum (in his Letter from the Birmingham City Jail) on how to deal with boils:
“Like a boil that can never be cured so long as it is covered up but must be opened with all its pus-flowing ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured.”
A version of this essay first appeared on Consortium News.