Detention & Guantanamo

An Injunction Against Forced Feeding?

By Benjamin Wittes
Tuesday, July 2, 2013, 7:39 AM

A group of hunger-striking Guantanamo detainees is asking the U.S. District Court in D.C. for a preliminary injunction against forced feeding. Judge Rosemary M. Collyer has ordered the government to brief the question---by tomorrow. Here is the supporting documentation:

The motion opens:

Petitioners Ahmed Belbacha, Nabil Hadjarab, Abu Wa’el (Jihad) Dhiab, and Shaker Aamer, by and through undersigned counsel, and pursuant to Fed. R. Civ. P. 65 and the All Writs Act, 28 U.S.C. § 1651 (2012), apply to this Court for a preliminary injunction prohibiting respondents from subjecting petitioners to force-feeding of any kind, including forcible nasogastric tube feeding, and from administering medications related to force-feeding without the petitioners’ consent. Petitioners request an expeditious hearing on this application because of the extreme nature of the human rights and medical ethics violations that result from petitioners’ force-feeding, and because of the imminent risk that it will deprive them of the ability to observe the Ramadan fast, which commences this year on July 8.

Petitioners have been detained at Guantánamo Bay for up to 11 years. At this point, their detention without trial or military commission proceedings has become indefinite. To force-feed a noncriminal detainee in order to prolong his indefinite detention violates the law of human rights and thus serves no legitimate penological interest.

Petitioners’ force-feeding also violates medical ethics and is inhumane. For that reason, too, it serves no legitimate penological interest. The only theory advanced to justify petitioners’ detention is that, more than a decade ago, they were enemy belligerents. Their detention, it is said, is necessary to ward off some putative “return” to the battlefield. They dispute that claim, but even if one accepts it, a noncriminal enemy belligerent is still entitled, under the Geneva Conventions and basic standards of human decency, to be treated honorably and humanely. Being strapped to a chair and having a tube forcibly inserted through one’s nostrils and into one’s stomach is dishonorable and degrading. It falls within the ambit of torture or other forms of inhumane treatment. In the long history of American detention of the enemy, bodily invasions of this character have never been the routine business of the prisoner of war camp.

Because petitioners’ force-feeding is not reasonably related to a legitimate penological interest, it is unlawful and should be enjoined. Additionally, the administration of the drug Reglan in conjunction with petitioners’ force-feeding should also be enjoined because it violates their right to refuse medical treatment with a drug that poses a significant risk of adverse side effects from prolonged use.

Petitioners did not come lightly to the request they make by this application. But after 11 years of limbo at Guantánamo Bay, they have sensibly concluded that they will never be charged and will never be released. Their detention and their force- feeding has nothing to do with military necessity, for the commander in chief says he wants to stop directing military force (in the form of detention) against them. Their detention is solely a function of a political stalemate between the President and the Congress.

President Obama has even disapproved of petitioners’ force-feeding, stating in a speech on May 23, 2013: “Look at the current situation, where we are force-feeding detainees who are holding a hunger strike. Is that who we are? Is that something that our founders foresaw? Is that the America we want to leave to our children? Our sense of justice is stronger than that.” Yahoo! News, Doctors to Obama: Let us treat Guantanamo detainees on hunger strike, obama-let-us-treat-guantanamo-detainees-hunger-230110562.html. But President Obama has not seen fit to stop the force-feeding. His deeds have not matched his soaring rhetoric.

Petitioners respectfully ask one thing: to be allowed the choice whether to accept food or medicine.

On June 28, 2013, petitioners’ counsel discussed this application with respondents’ counsel by e-mail, who stated that they would oppose the application.