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Peter Margulies on Law, Ethics and the GTMO Hunger Strike

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Friday, May 17, 2013 at 2:00 PM

Peter Margulies, of Roger Williams School of Law, writes in with these comments on law, ethics, and the hunger strike ongoing at Guantanamo:

The hunger strike at Guantanamo has put bioethics on the frontlines of lawfare.  The government’s critics, including Penn State’s Jonathan Marks and Brown’s Scott Allen, argue that forced feeding of hunger-striking detainees violates medical ethics and that the strike is a useful reminder of Guantanamo’s adverse effect on America’s reputation.  Critics are right on the latter policy point, but their ethical analysis is incomplete at best.

Opponents pose the issue of forced feeding as a classic bioethics throwdown between the competing values of autonomy and beneficence.  Autonomy bespeaks regard for individual decisions made knowingly and voluntarily.  Beneficence involves protection of the individual, memorably expressed in the injunction of the Hippocratic oath: “First, do no harm.” The critics rightly point out that in most situations involving competent adults, modern bioethics has resolved clashes between these values in favor of autonomy.  But this account omits two vital caveats relevant to the Guantanamo hunger strike: 1) Which outcome serves autonomy best is not always clear; and 2) For that very reason, the law has carved out significant exceptions where beneficence is the default position.  Not letting hunger-striking detainees die – President Obama’s simple but eloquent summary of the administration’s position – is one such exception. 

The Guantanamo hunger strike is a poor poster-child for autonomy.  Any collective confinement situation, whether a civilian prison or a military detention facility, should trigger concerns about whether a detainee’s decision to participate in a hunger strike is a voluntary.  Collective pressures are pervasive in detention.  Often, inmate leaders enforce their will, forcing individuals to cave or to face either ostracism or even actual physical harm.  Determining the extent of such coercion can be difficult for the detention authority.  And in the case of a hunger strike, the error risk is huge.  A mistaken conclusion that the individual is free from collective influence will produce irreversible harm–death–obviously precluding the individual from exercising autonomy in the future.  In the face of such uncertainty and substantial stakes, a default position favoring the preservation of life is consistent with both autonomy and beneficence.

That accords with modern bioethics principles, as applied in our courts.  For example, the Supreme Court, in the Cruzan and Glucksberg cases, ruled respectively that a state could impose a high evidentiary threshold on an individual’s choice to decline life-preserving treatment; and refuse to recognize a right to physician-assisted suicide.  The Court took this approach because it acknowledged not only the state’s interest in protecting life, but also the cross-cutting nature of the autonomy interest in play.  Individuals who are depressed, terminally ill, or suffering from pain may seek to end their lives because of temporary conditions or pressure from relatives who see them as a burden.  Constraining a right to end one’s life, on this view, is a prophylactic measure that aids autonomy by promoting deliberation over time and curbing incentives for collective pressure.  The law of wills and trusts makes a similar move, requiring that a testator be competent and be free from undue influence.  Here, too, the law protects testators from whims that cause irreversible consequences and from the coercion of the collective.

The influential New York State Court of Appeals recently echoed these ideas in Bezio v. Dorsey, holding that state correctional officials could force-feed an inmate who had initiated a hunger strike.  The court found that inmates are a “vulnerable population.”  The “significant psychological strain” endemic to this setting, the opinion continued, also can easily engender frustration that undermines sound judgment.  The state also has interests of its own in the proper functioning of both correctional and detention facilities.  In particular, the Bezio court noted the interest in resisting inmate efforts to “strong-arm” authorities into granting benefits that the inmate could not claim under law.   As the court recognized, the mortal risks involved in hunger strikes should not obscure the strategic behavior that often drives them.  In Bezio, the court found that the inmate was trying to use a hunger strike to force his transfer to another facility, although the petitioner had other means, such as litigation, to secure this objective.

At Guantanamo, the striking detainees are trying to secure their release, although they also have a litigation option: habeas in the D.C. Circuit.  To be sure, the D.C. Circuit’s precedents create a high hurdle for detainees.  Some would argue that the D.C. Circuit’s hurdle is too high, at least in a case like Latif, which has received exhaustive analysis on Lawfare and elsewhere.  It is understandable that the detainees, stymied in litigation, would pivot to a hunger strike as a form of what I’ve called crossover advocacy.  However, as the Bezio court recognized, the government need not allow the “powder keg” of a correctional or detention facility to explode because of inmate violence or other life-threatening actions.

The Guantanamo hunger strike does highlight the importance of further government initiatives.  In dealing with the hunger-strikers, detention authorities must carefully monitor the feeding process, to make sure that it is used only for detainees whose health is in immediate jeopardy.  Furthermore, the personnel conducting the process must take care to avoid the imposition of unnecessary discomfort on detainees.  Viewed through a larger policy lens, the Obama administration must also be more proactive in lowering the inmate population at Guantanamo.  It should begin proceedings under a long-promised and long-delayed administrative review regime.  It should also continue to collaborate with foreign governments, including that of Yemen, to develop placements for released detainees that will minimize the risk of recidivism.  If the government pursues that approach, detainees who can be safely released will leave Guantanamo the right way.