Detention & Guantanamo

Government Opposes Disclosure of Force-Feeding Protocols; Detainees Respond

By Jane Chong
Tuesday, January 7, 2014, 1:44 PM

Two more developments in Aamer v. Obama, the force-feeding case on appeal before the D.C. Circuit.

On December 30, the government filed its opposition to the detainees' motion for an order directing the government to disclose and file complete copies of its revised force-feeding protocols.  The detainees filed their reply yesterday.

In its filing, the government offers some combination of argument and concession:

First, petitioners offer no persuasive reason for the Court to grant their request for an order requiring the government to file the revised protocol with this Court. Not only would such an order be unfounded – the previous version of the protocol is not part of the record – but petitioners are free to submit the revised protocol to the Court themselves. Second, petitioners’ attempt to conduct discovery in this Court is without legal basis and should be denied. Finally, petitioners make no attempt to identify the legal basis for their request that the Court order the government to file a motion (either in this Court or in the district court) to treat the revised protocol as protected information. In any event, given petitioners’ recently raised objection to the government’s designation of the revised protocol as “protected information,” the government will create a public version of the revised protocol and will provide this version to petitioners’ counsel. If petitioners’ counsel continues to object to the designation of protected information in the public version, the government will comply with the provisions of the district court protective order that applies in such a situation.

The detainees' response rebuts each of these points and suggests, moreover, a pattern of government disingenuousness:

[T]he Government’s opposition brief repeats verbatim the Government’s previous assertion that under the revised protocols “‘the process for approving’” force-feeding “‘remains essentially the same.’” Resp.’s Opp., ECF No. 1473022 at 5 n.2 (emphasis added). This is rather like saying that because the process of imposing a death sentence remains the same, no inquiry should be allowed into changes in the method of execution.

. . . .

The Government’s opposition brief includes a telling footnote which states that the protocols as revised on November 14, 2013 and again on December 16, 2013 “apply to any detainees experiencing clinically significant weight loss.” Resp.’s Opp., ECF No. 1473022 at 5 n.1 (emphasis added). In contrast, the superseded March 3, 2013 force-feeding protocols, which were titled “Medical Management of Detainees on Hunger Strike,” expressly and exclusively applied to hunger strikers . . . . 

Thus, the Government’s opposition brief exposes the revised protocols as, among other things, a re-branding effort. As the Government would have it, appellant Shaker Aamer is no longer a “hunger striker” threatened with force-feeding under physical restraint, but is merely “experiencing clinically significant weight loss” which earns him “approv[al] for “enteral feeding.” Resp.’s Opp., ECF No. 1473022 at 5 & n.1. This re-branding effort—along with the Government’s designation of the revised protocols as “protected information,” its concealment of the associated restraint protocols, and JFT-GTMO’s recent announcement that it will no longer publicize the number of hunger-striking detainees2— betrays a new strategy for addressing the Guantánamo Bay hunger strike: Pretend it does not exist, hide information about it, and purge the very phrase “hunger striker” from the Government’s lexicon.

 ***

The continued back-and-forth in the force-feeding case appears to be part of a larger battle over the flow of information coming out of Guantanamo. This past weekend, Carol Rosenberg reported for the Miami Herald that transparency at the prison was systematically reduced over the month of December. The public is no longer being told in real-time how many detainees are hunger-striking, for example, and other oddities abound:

The prison approaches the start of its 13th year next week with a new reclusive regime that no longer discloses what was once routinely released information.

The daily tally of hunger striking detainees — the protest that engulfed more than 100 prisoners at its peak this summer — stopped in December.

Guards and other prison camp troops are under orders to withhold their names when talking to reporters.

On the witness stand in the war court recently a lawyer in the uniform of an Air Force officer gave sworn testimony under a curious, unexplained fake name — “Major Krueger.”