Lawyers for Obese Guantanamo Detainee Advocate for Medical Release

Lawyers for Guantanamo detainee Tarek El-Sawah, an admitted al-Qaeda explosives trainer held at the facility for over 11 years, are arguing that he should be released because of his serious obesity-related ailments. While at Guantanamo, the 55 year-old El-Sawah nearly doubled his weight, at one point reaching 420 pounds. His lawyers argue that he could die at any time; he is diabetic, has trouble breathing and walking, and has difficulty staying alert during meetings. They maintain that he faces the very real possibility of not making it out of Guantanamo alive. Continue reading

Pentagon Appoints Guantanamo “Closer”

Earlier this week, the Pentagon announced that it has appointed a special envoy in a renewed effort to close the Guantanamo Bay Detention Center.  Paul M. Lewis, a former Judge Advocate General in the Marine Corps and current Democratic lawyer for the House Armed Services Committee, will take over the position on November 1.  He will be working alongside fellow Capitol Hill attorney Clifford Sloan, who was appointed in June as the State Department’s envoy for Guantanamo. Continue reading

Inside the SJC’s Guantanamo Debate

Last week, we wrote about the Senate Judiciary Committee’s hearing on Guantanamo Bay.  The debate, entitled “Closing Guantanamo: The National Security, Fiscal, and Human Rights Implications,” brought together members of Congress from both sides of the aisle, including Chairman Dick Durbin (D, IL); Chairman of the Full Committee Patrick Leahy (D, VT); Ranking-Member Ted Cruz (R, TX); and Rep. Mike Pompeio (R, KS-4), among others.  Testifying were top-ranking members of our armed forces and members of international human rights organizations, including Major General Paul Eaton, U.S. Army (Ret.); Brigadier General Stephen Xenakis, M.D., U.S. Army (Ret.); Lieutenant Joshua Fryday, Judge Advocate General’s Corps., U.S. Navy; Frank Gaffney, Founder and President, Center for Security Policy; and Elisa Massimino, President and Chief Executive Officer, Human Rights First.

Most of the usual Guantanamo-related topics were discussed, including arguments for and against the closure of Gitmo, what that closure might mean for American national security, and how we might go about transferring current detainees to domestic prisons or foreign countries for continued detention or release.  As we’ve come to expect, testimony from Congressional representatives was fairly predictable based on party membership.  Chairman Durbin opened the hearing by calling for the closure of Guantanamo Bay, stated that Gitmo had become an “international eyesore” and that “the Administration could be doing more to close (GTMO)…, [but] the President’s authority has been limited by Congress.”  Nothing too groundbreaking there, but it’s always nice to see someone in a position of authority acknowledging that this isn’t all President Obama’s fault.  Like I’ve said before, this isn’t a unilateral decision for the President to make.  It’s going to take a level of bipartisan cooperation that’s been completely absent in Congress in recent history.

But even if President Obama can’t single-handedly close Guantanamo, Chairman Durbin noted that through the FY14 Defense Bill, passed by the House Armed Services Committee in early June, he has an expanded ability to dispose of prisoners (calm down, disposing means releasing or transferring in this context) as he sees fit.  But we’ve seen problems with this as well.  First, where do we release or transfer these detainees?  Just a few days ago we saw Senator Saxby Chambliss voice concerns about releasing detainees to their home countries where they may attempt to join or re-join al-Qaeda.  Our European allies have a history of rejecting transfers of Guantanamo detainees.  And we certainly aren’t going to give them asylum here.  So even if the President’s powers to release or transfer detainees have been expanded, it’s still a delicate situation.

Ranking-Member Cruz was one of the few speakers to advocate for keeping Guantanamo Bay open, bashing the Obama administration for it’s policy and saying that we “continue to apologize for continuing the policy.”  Senator Cruz’s main argument was that we can’t embrace a “utopian fiction” where released detainees embrace global peace and pledge not to take up arms against the United States.  I could understand that concern if we were talking about releasing KSM.  I can understand that concern if we’re talking about releasing any detainee that we know was involved in attacks against the United States.  But I’m pretty sure nobody is calling for those detainees to be released.  So what about the detainees with no formal charges or evidence against them?  Are we going to hold them for the rest of their lives just because there’s a chance they could join al-Qaeda if we release them?  Apparently Senator Cruz would say yes.

Major General Eaton and Brigadier General Xenakis also testified in front of the panel, both advocating for the closure of the detention center.  Major General Eaton stated clearly that “[t]here is no national security reason to keep Guantanamo open,” and even went so far as to say the keeping it open this long has undermined national security by damaging our “moral leadership, political leadership, military power and economic power.”  Brigadier General Xenakis attacked the much-covered force-feeding policy, stating that it violates not only the basic ethics of the medical field, but also the Geneva Convention.

Rep. Pompeio joined Senator Cruz’s position, making the bold claim that “there are no human rights violations occurring at [GTMO].”  He also voiced concerns that foreign nations would torture detainees if we were to transfer them.  Now, I’m not saying I can’t see any reason behind the force-feeding policy.  I get that we don’t want upwards of 40 detainees dying of malnutrition on our watch.  But to say shoving a rubber tube through the nose and into the stomach of a fully conscious human being in an extremely painful fashion is not a human rights violation is borderline ludicrous.

The way I see it, the only semi-logical argument for keeping Guantanamo Bay open came from Mr. Gaffney.  Mr. Gaffney argued that Gitmo should remain open until a safe and effective alternative is pinpointed.  That much I can get on board with.  I already pointed out that there are some holes in the current plan.  But Mr. Gaffney’s seems to be worried about detainees escaping from super-max prisons on U.S. soil and rejoining al-Qaeda or remaining in the U.S. to plan attacks.  Is this what we’re really concerned about?  We already trust maximum security penitentiaries to hold our most notorious murderers, so why does it matter what their nationality is?  According to documents from the New York State Department of Corrections, there were a total of 10 escapes from detention facilities of any kind between 2006 and 2010.  That equates to a rate of .03 escapes per 1,000 inmates during that time period, and includes statistics from ALL New York state penitentiaries.  I, for one, am no too worried about detainees, who will probably have additional monitoring in place, escaping from super-max prisons.  Again, I agree that we need a rock-solid plan in place before we close Guantanamo, but the concerns cited by Mr. Gaffney are simply not realistic.

That’s probably a good thing since the plan proposed by Democrats involved transferring detainees to the same super-max facilities that Mr. Gaffney is so worried about.  Senator Dianne Feinstein (D, CA) pointed out that it will cost tax payers roughly $551 million to operate Guantanamo Bay in 2013, and roughly $2.1 million per detainee.  According to her estimates, it would cost only $287,000 to house a detainee in a super-max facility here in the U.S.  Especially since the sequester hit the federal government, this would obviously be a much more cost-effective model.  So on top of potentially eradicating human rights violations, we might be able to take a step towards a balanced defense budget.

All in all, we are still in a stalemate.  The hearing was essentially a summary of all the arguments we’ve heard about Guantanamo Bay over the past 5 years.  Democrats and members of the military are still pushing for its closure while Republicans are standing firm on keeping it open.  I don’t know that we’re any closer to actually closing Gitmo after the hearing, but it’s good to see that we haven’t given up the fight.

***Special thanks to Mr. Rick Erkel for reporting on the hearing

Chris Whitten, Research Fellow
Center for Policy and Research

SJC to Hold Hearing on Guantanamo

At 2:00PM today, the Senate Judiciary Committee will hold a hearing entitled “Closing Guantanamo: The National Security, Fiscal, and Human Rights implications.”  Speaking at the hearing will be several current and retired high-ranking members of the military, two members of the House of Representatives, and Elisa Massimino, the president of and CEO of Human Rights First.

In addition to pushing for closure of the Guantanamo Bay Detention Camp, the speakers are expected to outline a plan for transferring current detainees to other locations for continued detention, and also the release of 86 prisoners that have been cleared for release.  The ongoing hunger strikes are bound to come up as well.  There are currently 69 detainees participating in the hunger strikes, a significant drop the 106 participants earlier this month.  However, the numbers may rise again one Ramadan has ended and there are still 45 detainees being force-fed.

We’ll be covering this in detail over the next few days, but you can check it out via webcast here if you’re interested.

Chris Whitten, Research Fellow
Center for Policy and Research

Force-Feeding Condemned by Top Congressmen

As the controversy surrounding force-feeding tactics at Guantanamo Bay continues, two top members of the U.S. Senate have spoken out in favor of ending the practice.  Senators Richard Durbin and Dianne Feinstein called on President Obama to stop force-feeding prisoners partaking in hunger strikes in protest of their status at Guantanamo.  This comes just days after a U.S. District Court Judge handed down a ruling stating that federal courts have no authority to shut down the force-feeding program, but agreeing with detainees and their attorneys that the practice is troubling and may violate human rights.  The decision put the burden solely on President Obama to address the situation, and it looks like he will be receiving pressure from Congress as well.

Senators Durbin and Feinstein did imply that there may be cases where force-feeding is medically necessary, but stated that the military does not observe proper guidelines and safeguards even in those cases.  This was not Senator Feinstein’s first attempt at convincing the government to stop force-feeding.  Last month she wrote a letter to Secretary of Defense Chuck Hagel after a visit to Guantanamo in which she called hunger strikes a “long-known form of non-violent protest aimed at bringing attention to a cause, rather than an attempt of suicide.”  This seems to imply that Feinstein’s views are in line with others who believe that force-feeding is inhumane in instances where protests do not threaten Guantanamo personnel and involve mentally competent detainees.

The White House turned to its usual response, stating that it does not want any detainees to die of malnutrition while in detention.  So it’s ok to hold them indefinitely with no hope of release even though we lack the necessary evidence to press charges, but it’s not ok for them to protest a largely unreasonable policy in a manner that poses no threat to the United States or its military personnel.  Got it.

The Senators also called on President Obama to make good on his long overdue promise to close Guantanamo Bay altogether, which was just another drop in the proverbial ocean of similar requests made since Obama took office.  As sad as it is, it’s almost laughable at this point to think that another request to close Guantanamo will make a difference with so many members of Congress still in favor of keeping it open.  But I guess it’s nice to know that there are still politicians out there who believe that it can be accomplished.

Do I think this latest effort to stop force-feeding and close Guantanamo will make any difference?  Not really.  Like I’ve said before, closing Guantanamo will be a long, painful process and there are still too many people who want to keep it open.  It’s not a groundbreaking prediction but I don’t think Guantanamo Bay will be closed any time in the near future.  I think our short-term goal needs to be putting an end to force-feeding.  If you believe Monday’s decision, we should be able to sidestep much of the political process and leave it up to President Obama if we focus on that.  That doesn’t mean we should abandon efforts to close the base, but we need to focus on the immediate problems that we can fix right now.

In a related story, two hunger-strikers dropped out of the over 4 month-long protest for unspecified reasons, bringing the total number down to 104.  However, 45 are still being force-fed on a daily basis.

Chris Whitten, Research Fellow
Center for Policy and Research

Judge Claims No Jurisdiction Over Force-Feeding at Guantanamo

Yesterday, multiple news outlets reported that despite efforts by defense attorneys for Guantanamo Bay detainees, federal courts do not have the power to stop Guantanamo personnel from force-feeding the detainees.  U.S. District Court Judge Gladys Kessler handed down a quick decision stating that federal courts simply do not have the jurisdiction or authority to order the military to stop using force-feeding tactics in response to hunger strikes implemented by detainees to protest their detention status at Gitmo.

The decision was handed down quickly in part because the court and attorneys on both sides wanted an answer before the beginning of Ramadan, the traditional Muslim holy month that requires Muslims to fast during daylight hours.  One of the main concerns was that force-feeding detainees during fasting hours would violate this core tenant of the Islamic religion.  As I noted when I first wrote about this lawsuit, in the past the military has agreed not to force-feed detainees during these hours so that detainees could observe their holy month.  In fact, in the response to the suit filed by the pentagon, the government stated that barring any emergency situations, they would agree to only force-feed detainees after sunset.  So even though we’re going to keep shoving tubes into detainees’ (that we have already admitted are not being charged with crimes) orifices while they are strapped down to chairs, we’re at least going to let them maintain the last shred of religious dignity they might have left.  Take from that what you will.

The basis for the lawsuit was not just religious.  Detainees and human rights advocates have long claimed that force-feeding is akin to torture, especially when implemented on detainees who are of sound mind and have made conscious decisions to partake in the hunger strikes.  The legal brief submitted by defense attorneys called the process “dishonorable” and “degrading.”

Although Judge Kessler admitted that the courts could not rule on the issue, she made her personal opinion known in her decision by echoing many of the above concerns, calling the force-feeding process “painful” and “degrading.”  She not-so-subtly called on the Obama administration to take action where the courts could not and shut down force-feeding itself.  Judge Kessler singled out President Obama for a speech given back on May 23rd, which some of you may recall:

“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.”

This coming from the same president that promised to close down Guantanamo Bay when he was first elected, and yet here we are.  I understand that it’s not that simple and that there’s a lot of politics behind the decision to keep it open.  There are a lot of politicians (and members of the public) who want to keep Guantanamo open and it’s not exactly President Obama’s unilateral decision to make.  But his administration has a chance to make a statement here and restore some level of civility to a system that’s drawn an awful lot of criticism for alleged human rights violations in recent years.  Shutting down force-feeding isn’t going to erase those incidents, but it could go a long way toward easing the tension surrounding Guantanamo Bay, at least in the short-term.  Most importantly, it would show the world that we DO respect human rights.  And as of late the world has plenty of reasons to question whether we actually do.

Sidenote – My blogging compatriots have gone into detail on what exactly the force-feeding process entails, and you can read about it here.  Seeing it in print is disturbing enough, but if you still want a better picture of the process, you’re in luck.  Over the weekend, Yasiin Bey, better known as hip-hop artist Mos Def, took the plunge and agreed to undergo the force-feeding procedure in London.  I don’t recommend clicking that link if you’re squeamish.  Keep in mind that there are 106 prisoners partaking in the hunger strikes at the moment, and 45 of them undergo this 2-hour process twice a day.

Chris Whitten, Research Fellow
Center for Policy and Research

Detainees Turn to Courts to Stop Force-Feeding

Despite prior rulings that federal courts have no jurisdiction over the treatment of detainees at Guantanamo Bay, attorneys for detainees at the detention center have now turned to the court system for help in putting a stop to force-feeding at the GTMO Detention Camp.  Over the weekend, defense attorneys filed a motion with a federal district court in Washington DC requesting an immediate hearing on the legality of tactics used by military personnel at Guantanamo to keep hunger-striking prisoners alive.  In the 30-page motion, defense attorney Jon B. Eisenberg stated, “There cannot be a legitimate penological interest in force-feeding petitioners (detainees) to prolong their indefinite detention.”

The military continues to defend the use of force-feeding as a necessary step to maintain order at Guantanamo, but the defense attorneys and detainees argue that it is a direct violation of human rights.  Detainee Nabil Hadjarab claims that he is taking part in the hunger strikes to protest his detention despite the fact that no formal charges have been lodged against him.  Hadjarab stated, “I am doing this because I want to know my destiny.  I cannot abide not knowing anymore.”  Force-feeding at Guantanamo has been criticized for months now but this is one of the first instances where the detainee’s defense counsel has turned to the courts for relief.

The motion specifically names four detainees, and there might be a reason for its timing.  The Islamic holy month of Ramadan starts next week, and any force-feeding that might occur during daytime hours could violate detainees’ religious beliefs.  Even if the motion is not presented to the court by next week, the detainees are seeking a temporary order that would prohibit guards from force-feeding them from sunup to sundown.  This would probably be granted as guards at Guantanamo have agreed in the past to only force-feed detainees after sundown in observance with Ramadan.

Even so, guards at Guantanamo are unlikely to change their ways without a specific court order.  Army Colonel Greg Julian stated, “Until we are told to do differently the practice will not change.”  I can understand that guards at Guantanamo are simply following orders.  They aren’t exactly in the best position.  They don’t get to make the call on whether or not the detainees are charged or released.  As for the overarching policy, I agree that it isn’t a good look to have detainees dying from malnutrition at Guantanamo.  But it isn’t much better to shove tubes into detainees’ stomachs in response to a protest that has a perfectly legitimate aim.

We aren’t talking about detainees with high intelligence value or detainees that have been charged with crimes.  I can see a better argument for force-feeding detainees in that category, even if it might still be a human rights violation.  We could at least justify it since keeping them alive might save more lives if they have information on any impending attacks.  Instead, we’re talking about men who have been told by the government that there are no charges against them due to lack of evidence, but they are still not allowed to leave Guantanamo Bay.  These are men who have made a conscious decision to protest a policy that many Americans don’t even like.  And if the courts put a stop to force-feeding it might force the government’s hand into making a decision as to their fate.

Either way, this has turned into an issue that the courts will now have to address.  And with the total number of hunger-strikers at 106 and the number of detainees being force-fed at 45, it will be interesting to see how this plays out in the next week or so.

Chris Whitten
Center for Policy and Research

Guantanamo Detainees Request Independent Medical Services

Last month, 13 Guantanamo detainees wrote an open letter requesting independent medical examinations and advice. The detainees, who are using their hunger strike as a means of communication and to gain global attention, said that they did not trust military doctors whom they accused of putting their duties to their superiors above their duties to their patients, in violation of the ethics of their profession. In response, more than 150 doctors, including some from the US, have signed an open letter to President Obama, urging the administration to allow Guantanamo detainees to receive new treatment. The letter, which was published in Lancet, stated:

“Without trust, safe and acceptable medical care of mentally competent patients is impossible. Since the detainees do not trust their military doctors, they are unlikely to comply with current medical advice. That makes it imperative for them to have access to independent medical examination and advice, as they ask, and as required by the UN and World Medical Association.”

The question is whether or not the actions taken by the Guantanamo medics are ethical. According to the World Medical Association, force-feeding hunger strikers of sound mind is never ethically acceptable. The WMA has stated: “Even if intended to benefit, feeding accompanied by threats, coercion, force or use of physical restraints is a form of inhuman and degrading statement.” Therefore, the means by which the medical staff is keeping the detainees alive violates international law, and to some, constitutes torture. However, it is a doctor’s duty to provide life-sustaining treatment. Unlike Cruzan v. Dir. Missouri Dep’t Health which held that competent adults have the right to refuse forced feeding, even if death will result, Washington v. Harper held that prison officials could override a prisoner’s objection to forcibly being administered medication, assuming that it’s in the prisoner’s best medical interest. So what other viable treatment options do these physician’s have, given that the detainees remain on hunger strike? While the means to force feed someone are gruesome and painful, wouldn’t it be even worse if we allowed our detainees to starve themselves to death?

President Obama has stated that America should never practice torture and that Guantanamo should be closed. The only way that will happen is if we have healthy detainees, fit to either stand trial or to be sent elsewhere. If this is truly what he wants, the best place to start is by ending this hunger strike. In this case, he should start listening to his detainees and allow for independent medical examinations. The detainees’ aren’t going to stop their hunger strike, and the medical examiners aren’t going to stop force-feeding them.  If no one is going to give, the President should force somebody’s hand.

Alexandra Kutner, Research Fellow
Center for Policy and Research

Trials for Alleged 9/11 Plotters Resume at Guantanamo Bay

Lost in the shuffle during a week where the NSA scandal has dominated headlines is more news coming out of Guantanamo Bay.  On Monday, the government released the identity of Guantanamo’s “indefinite detainees,” or those who the government has deemed too dangerous for release regardless of whether they can be tried in a military court.  The government has already announced that a number of these detainees will be held indefinitely even though they cannot be tried due to lack of evidence. The names have been kept secret since 2009 when multiple agencies investigated files on detainees in order to support President Obama’s initial effort to close the Guantanamo Bay Detention Center.  Normally these detainees could not be constitutionally held without the possibility of trial, but in 2001 Congress authorized the practice with the “Authorization of Military Force” bill.

Human rights groups including Human Rights Watch and Amnesty international have condemned the idea of “indefinite detainees,” calling for the release of all prisoners that the government has no intention of trying in a court of law.  Some men on the “indefinite detainees” list are actively involved in the well-documented hunger strikes.  At least two, both Afghani men, are deceased, with one committing suicide and the other dying of natural causes in Camp 6.  While the practice of holding detainees without the possibility of trial may be controversial, the release of their identities is a small step towards the transparency and legitimacy that human rights groups have been calling for in recent years.

In other Guantanamo-related news, pre-trial hearings for five men accused of plotting the September 11th attacks resumed on Monday, four months after CIA listening devices were discovered in conference rooms used by the detainees’ attorneys.  Included in this group is Khalid Sheik Mohammed, the alleged mastermind of the attacks.  The hearings included statements from defense attorneys claiming that CIA personnel tortured the detainees while they were being held in overseas prisons prior to their transfer to Guantanamo Bay.  They have also filed motions to dismiss the case due to meddling by senior military officials.

Also present in the courtroom were two victims and family members of three other victims that perished in the attacks.  The observers met with prosecutors and defense attorneys earlier in the week and pleaded for a quick and efficient trial.  At least one victim, a firefighter who was injured by falling rubble in the aftermath of the attacks, is expected to testify on behalf of the prosecution.  As one could imagine, the trials will probably not be very speedy.  Detainee trials at Guantanamo have been ridiculed for many reasons, one of the biggest being that they are inefficient and often take years to complete.  These particular observers have been waiting on an outcome for some twelve years.  Although the trials are resuming, we may have to wait a lot longer to see a resolution.

Chris Whitten, Research Fellow
Center for Policy and Research

GTMO Hunger Strike Sparks Reinforcements

In response to the continuing hunger strike, which has placed all but 15 detainees in single-cell confinement, the U.S. military has requested additional guards to be sent to Guantanamo. There are currently 1,831 troops and civilians assigned to the prison’s 166 captives. However, as Navy Capt. Robert Duran, the prison spokesman, stated, “When you go to a single cell, that takes more people.”

Since the hunger strike began, the captives, who once lived communally, are now confined to individual cells. This requires more work for the guards who deliver food through slots, and must now shackle each man in order to leave their cell for most activities, where they are again confined alone. This Saturday, 124 reinforcements from the Texas-based 591st Military Police Co. will arrive. As of Wednesday, 125 soldiers from the 613th MP Co., based out of Puerto Rico, have been deployed for 30 days of training in Fort Bliss, Texas.  From there they will be sent to enter the regular rotation at Guantanamo Bay.

While the increased personnel would “come in handy” as the camps are in single-cell operations, Southcom spokesmanNavy Lt. Cmdr. Ron Flanders has stated that the additional units are being sent to GTMO partially in anticipation of the military commissions,  and that Doral headquarters, which oversees the prison camps, might be “ramping up,” by setting a goal of reaching 2,000 personnel. Regardless of the reasoning, Guantanamo will have a large staffing increase in the impending weeks.

Alexandra Kutner, Research Fellow
Center for Policy and Research