Justice Compared and Denied

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Justice Compared and Denied

Yeganeh Salehi and Jason Rezaian. (Photo: EPA/Washington Post)

Ius est ars boni et aequi. (Legal justice is the art of the good and the fair.)
A Latin Saying

The great thing about living in the United States is that if you’ve gotten caught up in the military or criminal justice system you can go to court to seek redress. That’s a lot different from the way it is in places like Iran where you can be arrested and held indefinitely without access to a lawyer or even knowing what charges you face. And while incarcerated in Iran, you may lose weight because Iranians, unlike Americans, are not concerned with weight loss of inmates. Examples of this in Iran are Jason Rezaian and Yeganeh Salehi who were arrested in Tehran.

Jason and Yeganeh were working in Tehran as correspondents for the Washington Post and the United Arab Emirate’s National newspaper when arrested on July 22, 2014. When Yeganeh’s parents visited the couple in prison in September they are reported to have said that the couple had lost a “shocking” amount of weight since their arrest. (Yeganeh has since been released on bail but her husband remains in prison.) The couple does not face any charges although the Iranian government is still looking around for something with which to charge them. While imprisoned they were not permitted to see any lawyers which makes sense since, if they are not facing any charges, there is no need for a lawyer whose goal would be to prove that they are innocent of the charges.

Samir and Jihad are lucky that they live in Guantánamo rather than Tehran. Even though they have not been charged with any crimes and never will be, they have lawyers who are helping them deal with issues that concern them. One of the issues that concerns them is the government’s efforts to make sure that if family members of either of the men come to visit, they will not be shocked at the weight loss suffered by the men.

On April 15, 2013, an op-ed piece appeared in the New York Times, written by Samir. Like Jason and Yeganeh, Samir has never been charged with a crime and, accordingly has never been tried. As of November 3, 2014, he has been held at Guantánamo for 12 years 10 months without charges. In 2010 Samir was recommended for release to Yemen or some third unnamed countries provided certain security conditions were met. They have not been met and so Samir is still at Guantánamo with no prospect of being released.

In the op-ed piece Samir described in lurid detail the efforts made by the authorities in Guantánamo to make sure he doesn’t lose weight. Describing what happened when he was in the hospital because he refused to eat he said: “eight military police officers in riot gear, burst in. They tied my hands and feet to the bed. . . . I spent 26 hours in this state, tied to the bed. During this time I was not permitted to go to the toilet . . . . I was not even permitted to pray. . . I am still being force-fed.” The good thing, of course, is that he is not losing weight.

Jihad has been held at Guantánamo for 12 years 3 months as of November 3, 2014. He was recommended for transfer in January 2010 without the conditions imposed on Samir. He has been represented by lawyers in his attempts to drop out of the anti-weight loss program. On May 23, 2014, Judge Gladys Kessler ruled that the federal government could continue Jihad’s participation in the program even though he did not want to participate unless the forced feeding took place in a hospital where it could be humanely administered. As she observed, he was willing to be force-fed if “he could be spared the agony of having the feeding tubes inserted and removed for each feeding, and if he could be spared the pain and discomfort of the restraint chair.” She said if that were done the litigation over whether he could be force-fed or permitted to die could be litigated in a “civilized and legally appropriate manner.

A free and independent press is essential to the health of a functioning democracy

The Department of Defense refuses to make these compromises. Thanks to the intransigence of the Department of Defense, Jihad may well suffer unnecessary pain from certain enteral feeding practice and forcible cell extractions.” Another hearing was held before Judge Kessler in early October to once again address the question of the kind of treatment to which Jihad was being subject in connection with his force feeding. In a lengthy piece in the New York Times, Joe Nocera describes some of the testimony given at the hearing to enable the judge to decide whether the force-feeding procedures being used violated medical protocols and might even be considered torture. As this is written, the judge has not yet ruled. Here is what we do know.

Unlike Jason, who is nervously waiting to see what charges, if any, will be filed against him, Samir and Jihad don’t need lawyers to help defend them against charges since none will ever be filed. Unlike Jason, neither man will be losing any weight, thanks to the compassionate concern of the Guantánamo jailers. Here’s one thing all the men have in common even though Jason is being held by Iranian authorities and Samir and Jihad are being held by American authorities. None of them knows if he will ever be released alive from confinement. Some Americans are appalled by this. For good reason.

Christopher Brauchli

Christopher Brauchli

Christopher Brauchli is a columnist and lawyer known nationally for his work. He is a graduate of Harvard University and the University of Colorado School of Law where he served on the Board of Editors of the Rocky Mountain Law Review. He can be emailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com

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