Detention: Law of: District Court Development

Dhiab Preliminary Injunction Hearing Read-Out: Part One

By Wells Bennett, Benjamin Bissell
Tuesday, October 7, 2014, 10:38 AM

Below you’ll find a read-out on the first of a three-day, preliminary injunction hearing in the case of Guantanamo detainee and intermittent hunger-striker Abu Wa’El (Jihad) Dhiab.

The Syrian national’s habeas case is likely familiar to readers by now. He has been cleared for release, and awaits a possible transfer to Uruguay after the latter’s upcoming presidential election. More important for present purposes, he also has long challenged GTMO force-feeding protocols, and thus seeks an order that (in essence) would block a force-feeding policy his attorneys decry as unlawful and punitive, and obligate officials to opt for more humane, less intrusive alternatives. There’s a transparency angle to this, too: in an unprecedented move last week, and over U.S. objections, U.S. District Judge Gladys Kessler granted a request to unseal once-classified videotape evidence in the case.

We recount yesterday’s proceedings in the summary below, and will follow up shortly with a further read-out on further developments in the case today and tomorrow. Broadly, the hearing comprised opening statements by both parties regarding the need (or not) for preliminary relief, followed by the questioning of two witnesses called by the detainee.

All the examination was conducted in open court, save only a roughly fifteen-minute, closed cross-examination of Dhiab’s first witness, Dr. Sondra Crosby (the latter apparently involved the showing of force-feeding videos, which Crosby called “disturbing”).

Opening Statements

Eric Lewis speaks on Dhiab’s behalf. His client suffers from chronic back pain, pain from an injured spinal disc, cervical neck pain, and blood in his urine. Moreover, Lewis says, Dhiab has languished at Guantanamo for 12 years, and engaged in intermittent hunger strikes for 7—that being the only way to protest his indefinite detention. In return, the detainee has been repeatedly abused by Guantanamo staff. Among other things, he has been attached to a “torture chair” (which restrains Dhiab in five places), had a tube stuffed down his throat, and undergone forcible cell extraction before being hauled to force-feeding sessions. The attorney dramatizes the tube-insertion, holding aloft a long, bendy tube; he adds that the extraction procedure means Dhiab is pressed to the ground, face-down, with Guantanamo staff straddling Dhiab’s injured back. But Dhiab does not want to die, according to the lawyer. Instead, he wishes to be treated like a human being. And he merely seeks an order requiring the United States to select alternative, humane procedures to deal with hunger strikers like himself, and to forgo abusive ones---in essence, to use force-feeding and related techniques only as a last resort, where medically indicated and ordered by a competent doctor, but never as punishment.

Punishment, though, is seemingly the name of the game at Guantanamo. The evidence, according to Lewis, will show that so far, Guantanamo force-feeding practices thoroughly violate legal standards set by the Turner v. Safely decision. The United States has not considered alternative, less intrusive measures, as that case directs; and the government further does not, despite claims to the contrary, conform GTMO force-feeding rules to ones employed by the Bureau of Prisons and found legal in other contexts. No, at GTMO, force-feeding and related practices constitute a form of disciplining detainees---or “incentivizing” them to comply with detention camp rules, as one Joint Detention Group Commander, Col. Bogdan, had put it. It’s well illustrated by the fact that, as Lewis and company will show, the decision to force-feed is made not by a competent medical professional, and solely where medically necessary—but instead by a Guantanamo commander and where deemed appropriate for disciplinary reasons.

To be sure, Lewis acknowledges that his client’s lawsuit has been having “some effect.” Responding to it, GTMO staff stopped lubricating a force-feeding tube with olive oil (which had caused tremendous discomfort and even infection in some detainees); and also allowed Dhiab to be transported to force-feeding sessions in a wheelchair, apparently out of deference to his back and other pain. (Officials had withdrawn access to the wheelchair and other items before.)  But such changes do not moot this case, argues Lewis; voluntary cessation of challenged conduct never does, and the United States pointedly refused to stipulate that its recent adjustments would remain intact permanently (they in fact expire in February 2015). Emphasizing the situation’s fluidity, Lewis reminds the court of Bogdan’s claim that Dhiab’s disciplinary status had endangered his access to a wheelchair; GTMO staff ultimately, if temporarily, took the wheelchair away. That’s punitive, not medical. After a few more words, the lawyer ends by urging the court to put a stop to detention practices unworthy of the United States.

An attorney for the government, Andrew Warden, sees no punishment in play. To the contrary, Warden says the Defense Department has provided high quality medical care to Dhiab; there is no factual or legal basis to upend the medical judgments of Guantanamo personnel. The government’s evidence will support those judgments, he argues---demonstrating that Dhiab sometimes refuses meals, and that he has assaulted or verbally abused treating personnel, at times by hurling feces or urine at them. Warden then moves briskly through some themes in the evidence, each time dismissing or batting down the detainee’s allegations. Among other things, Dhiab has complained of nasogastric tube insertion, but the procedure is common and not painful, and detainees in any case are offered lubrication and an anaesthetic. The tubes GTMO uses are even pediatric tubes, not the larger ones meant for adults, in order to reduce discomfort. Likewise, Dhiab has complained of excessive force-feeding, so as to punish, but there’s no evidence of this, either.

Warden then sharply disagrees with Lewis about recent tweaks to Guantanamo policy vis-a-vis Dhiab. These very much do moot the case, in the government’s lawyer’s view.  When questioned by the court, he observes that since Dhiab has been allowed to travel from his cell to his force-feedings by wheelchair, there have been no compliance incidents requiring FCE by the GTMO guard force. Warden concludes by emphasizing the high bar for preliminary relief. A preliminary injunction is a drastic remedy meant to preserve the status quo; but here, petitioner seeks not to hold the state of play in abeyance, but instead to further alter GTMO medical policy as he sees fit. Regarding the merits, Warden says the case ought to be decided under a “deliberate indifference” standard---which, if applied, would easily sustain the lawfulness of the force-feeding rules against Dhiab’s challenge.

The Petitioner’s Evidence In Support of Preliminary Relief

Dhiab puts on testimony by two witnesses, both of them experts: Dr. Sondra Crosby, and Dr. Stephen Xenakis.

Dr. Sandra Crosby

The former takes the stand and is questioned by Elizabeth Marvin, one of the petitioner’s attorneys. The latter reviews with the witness her credentials and CV—she’s an Associate Professor of Medicine and Public Health at Boston University, and an attending physician at Boston Medical Center with a focus on internal medicine. Her specialty is caring for refugees and asylum seekers, who are often the victims of torture and war trauma. She’s authored papers about victims of trauma and torture, too, and testified as an expert in other Guantanamo cases.  Before being qualified as an expert, she tells court and counsel that she met with Dhiab in September of this year, over the course of three days, and examined him physically for roughly ninety minutes. Altogether, including interviews, she spent 14 hours with Dhiab. She didn’t, however, meet with Guantanamo medical personnel.

The lawyer elicits testimony about the detainee’s condition, in Crosby’s view, as well as a summary of her expert opinion about how Guantanamo officials have handled his medical care. First, the condition: based on her interview with him and medical records provided to her, Crosby tells Marvin that Dhiab suffers from severe back pain on account of a pre-GTMO injury---and that the pain has progressively worsened during Dhiab’s prolonged detention. He also has severe, likely migrainous headaches, blood in his urine, and complains of right-side weakness in his leg, arm, and face (the petitioner reported that his leg was not “cooperative,” Crosby says, with no feeling below his right knee). Recounting her interview of Dhiab, Crosby tells the court the man has been subjected to 1300 forcible cell extractions. Interestingly, Crosby tells the lawyer that Dhiab attributes some of his symptoms to “jinns,” or spirit-like presences in the body; that’s one of many reasons why Crosby thinks the detainee should be treated in culturally appropriate fashion, perhaps in conjunction with an Islamic healer, as part of a larger “multidisciplinary” approach to his care. WIth respect to the “jinns,” doctor thinks Dhiab’s current physical issues may have a psychosomatic component. But Crosby does not believe Dhiab is malingering at all.

Next, Crosby speaks of Dhiab’s care, while walking through documents referred to by Marvin.  The witness relays Dhiab’s distrust of GTMO medical staff, and seems to find it justified: a nurse once denied Dhiab pain relief, she explains; his request to speak further to a doctor about his pain was denied to boot. And she knows about the wheelchair denial to Dhiab---and thinks that, based on medical records she has reviewed, the denial was meant as a punitive measure rather than a medical one. When asked, Crosby testifies that doctors must not be involved in forcible cell extraction or disciplinary measures, for ethical reasons. In her view, if the line between physician and disciplinarian is blurred, it has significant adverse implications on the doctor-patient relationship and the trust necessary for humane medical care. She also reports that Dhiab has complained that the medical staff does not take his complaints seriously. Regarding his urinary and disc problems, Crosby says Dhiab badly needs further testing---a cystoscopy for the former, and an MRI for the latter, which are standard (there is no MRI scanner at Guantanamo, apparently). And Crosby expresses strong disapproval of the withdrawal, on June 28th, 2013, of various forms of medical support from Dhiab.  Among other things, lumbar support, crutches, a walker, cotton socks, sneakers, etc., were discontinued then, on the orders of a GTMO doctor---but there was no medical reason for doing so, in Crosby’s view. It all “seem[ed] punitive.”

A government lawyer, Timothy Walthall, questions Crosby now, and commences by suggesting bias. Hasn’t the witness disproportionately written on behalf of detainees or refugees, but not on behalf of, say, active military personnel?  He next implies that Dhiab’s hunger strikes are sometimes voluntary, or commenced after coercion by other inmates in the prison---but Dr. Crosby does not go along with either claim. Instead, she tells Walthall that, iin her interviews with the petitioner, Dhiab explained that hunger-striking represented the only way to express his frustration at his seemingly indefinite confinement. Nor does Crosby accept that Dhiab’s allusion to “jinns” somehow implies malingering; consistent with her direct examination, Crosby acknowledges that some psychosomatic elements may be at play---but the detainee’s symptoms nevertheless are very real.

The same push-and-push-back pattern follows in the lawyer’s few questions: for example, the lawyer pushes Crosby to acknowledge that, in fact, Dhiab was tested further by GTMO medical staff (he received a urological CT scan), contrary to her suggestions that he hadn’t been; but the witness counters that the testing came after her travel to Guantanamo, and in any case didn’t encompass procedures she thought medically necessary, like a cystoscopy.  Walthall likewise notes that naso-gastric feeding is well-tolerated, and the least invasive procedure possible---and while Crosby agrees that such feeding is preferable to intravenous feeding, she pointedly refuses to say that it doesn’t hurt. The pain level, she testifies,  depends on context. For that reasons, she seems to bat away Walthall’s citation of prior testimony by Crosby, in other cases; she there had testified nasogastric feeding does not cause a great deal of pain, and that an insane anorexic could be force-fed as a last-resort, life-saving measure. But Guantanamo force-feeding is quite different--far more intrusive---and Dhiab is quite sane. Walthall finally observes that international guidelines, cited by Crosby as reason to doubt the performance of Guantanamo’s medical staff, are not of a mandatory character. True, but that’s beside the point: the guidelines are internationally recognized, and important. The attorney concludes shortly thereafter; an ever-brief re-direct follows, in which Marvin asks whether Dhiab is a hunger striker or anorexic.  The former, says Crosby.

Dr. Stephen Xenakis

General Steven Xenakis takes the stand and is questioned about his CV by Alka Pradhan, another of the detainee’s lawyers. Xenakis says he holds the rank of army Brigadier General, that he was active duty military for 28 years, and that he is also a licensed psychiatrist with a specialty in Child Adolescent Psychiatry. In 2005, he was first contacted about GTMO and went down there to advise staff on how to deal with hunger strikers. He has spent approximately 5 months altogether at GTMO. The witness’s recitation draws objection, and further questions, from Department of Justice lawyer Ron Wiltsie---who suggests that Xenakis’ prior writings and testimony exhibit obvious bias against the government. Xenakis denies this, but at any rate, the resume colloquy doesn’t stop him from being qualified as expert witness.

Pradhan thus turns to Xenakis’ role in her client’s case.  The witness says he went down to GTMO with Dr. Crosby; the witness says that in his view, Dhiab did not suffer from conversion disorder, whereby certain physical symptoms manifest themselves for psychological reason; or from “culturally-bound syndrome,” which is broadly similar.  Instead, Xenakis’ says he believes Dhiab’s problems have an “organic basis,” as well as a psychological component. He declined to make a diagnosis while at GTMO. Echoing Crosby, Xenakis testifies that Dhiab very much should undergo additional testing, including a spinal MRI---and that he is in no way manufacturing or faking his symptoms.  (The witness says he bases this on long experience working with military personnel.)  When asked about why Dhiab might refuse to seek psychiatric help from Guantanamo officials, Xenakis mentions the , stigma of psychiatry, as well as the detainee’s great skepticism that he will be treated “fairly” and “thoughtfully” by the camp staff.

As for Dhiab himself, Xenakis reports that during his time at GTMO, the petitioner was “reasonable” and “acknowledged” the guards---but also that Dhiab repeatedly had his “reasonable requests” turned down, including one request to be fed in a wheelchair. According to Xenakis, a senior medical officer would not see Dhiab when the latter complained of pain and wanted more meds. Consequently, the witness says he believes hunger strike is Dhiab’s “only means of expression”---even though he does not think the detainee “ “wants to die.” The witness ends with an implied critique: were Xenakis working at Guantanamo, he would absolutely allow Dhiab to use a wheelchair in traveling to health appointments, including even those involving force feedings. Denying Dhiab a wheelchair, crutches, and so forth, in Xenakis’ view, is nothing less than “abusive.”

Xenakis undergoes the day’s most aggressive cross-examination, courtesy of government lawyer Ron Wiltsie. The latter opens with a broadside, mentioning the military’s past allegations of improper conduct against the witness, one of which Xenakis apparently admitted; but the witness sharply disputes the lawyer’s account, rejoining that he sued the government over the incident, and in fact had his status restored. This lays bare the lawyer’s main and by now obvious theme: Xenakis, he suggests, is in the tank and harbors animus towards the government, owing to the misconduct epsiode and his having been passed over for a key promotion during military service. And since then, Wiltsie observes, Xenakis has penned articles lambasting the government for policies related to GTMO.  That, in Wiltsie’s view, must was one of the reasons why Judge Lewis Kaplan completely discredited Xenakis’ testimony in the Abu Ghaith terrorism trial; Kaplan had there criticized Xenakis’ “partisan outlook.” The witness says he isn’t familiar with Kaplan’s critique.

Wiltsie concludes with some pointed questions about Xenakis’ evaluation. The latter had suggested that the detainee could not possibly be dangerous, given his condition; did he not read the medical records to the contrary?  Wiltsie also finds discrepancies between the witness’s account and Crosby’s, and holes in the claim that Dhiab was denied needed pain medication. But the witness counters: he and Dr. Crosby generally agree, though one noted details that the other omitted, regarding Dhiab’s nerve problems; and, Xenakis explains, it is true that when Dhiab had requested pain medication, his treating nurse initially had agreed to supply him---but also insisted that the drug in question had to be crushed into water. Dhiab had then said he had trouble swallowing water, and therefore requested that the pill administered along with something else, anodyne and appropriate substance---one that the nurse said the senior Guantanamo medical official would not allow (Wiltsie, for his part, observes that medications were to be administered according to a fixed, medically indicated schedule---from which Dhiab occasionally asked to deviate).  That’s just not right, in Xenakis’ view, Wiltsie’s claims notwithstanding. Indeed, Xenakis says the SMO should not have refused to see Dhiab and evaluate him personally; and that there was no medical reason for denying Dhiab the pain medication in the form he requested.

The day's proceedings end. Xenakis' testimony continues into day two.