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

Drone strike kills 16 militants in Pakistan–for the last time?

Late on Tuesday, July 2, a massive drone strike in northwestern Pakistan killed 16 militants reported by local officials to be associated with the Haqqani network. This was the first drone strike in Pakistan since June 7th, and only the second since the election of Pakistan’s new Prime Minister, Nawaz Sharif.

The Pakistani Ministry of Foreign Affairs condemned the attack:

“These strikes are a violation of Pakistan’s sovereignty and territorial integrity. Pakistan has repeatedly emphasized the importance of bringing an immediate end to drone strikes.”

Pakistan’s civilian government has long protested these strikes as a violation of their sovereignty, even while their military coordinates with the US to a clear airspace for the drones. Few in Pakistan vocally support the drone strikes, despite the fact that some officials will quietly admit that they have been an effective means of dealing with their chronic militant problem. Despite this quiet acknowledgement, the Ministry of Foreign Affairs’ statement asserted that:

“The government of Pakistan has consistently maintained that drone strikes are counterproductive, entail loss of innocent civilian lives and have human rights and humanitarian implications. These drone strikes have a negative impact on the mutual desire of both countries to forge a cordial and cooperative relationship and to ensure peace and stability in the region.”

The last part is definitely true, and will be increasingly true in the future. In fact, at least one analyst believes that the strike will be taken as a personal affront to newly-elected Prime Minister Sharif, since it was conducted while he was out of country on a state visit to China, and may in fact be one of the last drone strikes in Pakistan.

This is not entirely far-fetched, given the rather remarkable decline in drone strikes in Pakistan over the course of the past few years, as I have written about previously, despite initial fears on the left that Obama was going to drastically increase the use of drone strikes. Although, according to data from the New America Foundation, he did initially increase the use of drones to attack militants in Pakistan, quadrupling the number of strikes over his first two years (and incidentally, halving the number of civilian casualties over the same period).

However, there is reason to disbelieve that this declining rate of strikes signals the end of the program. Probably the best indicator is that the drop in the number of drone strikes does not appear to be correlated to any decrease in the number of leaders these strikes have taken out of the fight. This may just indicate that the strikes are more selective, and that we are getting better at locating and targeting the leadership.

Selectivity of US drone strikes in Pakistan, as measured by the number of leaders killed per strike.

Selectivity of US drone strikes in Pakistan, as measured by the number of leaders killed per strike.

Interestingly, it is not necessarily our own enemies that we have been targeting. It is relatively well-known that the first drone strike in Pakistan, which killed Taliban leader Nek Mohammad, was selected at the specific request of the Pakistani military, in order to rid them of an enemy of the Pakistani state. And while the Afghan Taliban have received aid and shelter from Pakistan, their sister organization, Tehrik-i-Taliban Pakistan (TTP), has targeted Pakistani government forces and installations with brutal efficiency. They have even captured territory startling close to Pakistan’s capitol, Islamabad. Pakistan seems unable or unwilling to crush this movement. The US has been working on it for them, however. Of the five Taliban leaders killed in US drone strikes in 2013, four have been leaders of TTP. Simultaneously, the number of Afghan Taliban leaders killed in drone strikes has been on the decline.

Number of leaders killed in US drone strikes in Pakistan per year.

Number of leaders killed in US drone strikes in Pakistan per year.

With all of the back-room dealing that has occurred between various parts of the Pakistani and US governments, is entirely possible that a deal has been struck with the Pakistani military that will allow the US to continue to use drones to target its own enemy, so long as it also takes out Pakistan’s, as well.

There is also reason to believe that the US will continue to use drones in Pakistan with or without its consent. The continuing instability in rural Pakistan and the inability of the Pakistani government to reduce the violence emanating from the region, which is much more substantial than that caused by drones, as well as its inability or unwillingness to limit the export of terrorism and insurgency from its territory cannot simply be ignored. It is not a bumblebee that will go away if left to its own devices. And until some alternate method of limiting the Taliban’s and Al Qaeda’s ability to use Pakistan’s territory to train and equip  their operatives and send them out against America and its allies, the US government will have little choice but to employ drones, even if in a more limited and selective fashion.

Paul W. Taylor, Senior Fellow
Center for Policy & Research

Terrorists Changing Communication Methods Post-Leaks

Intelligence agencies are now scrambling to change their surveillance practices due to Edward Snowden’s leaks regarding NSA surveillance programs. Terrorist groups, who have always taken precaution in order to avoid detection, are now changing the way they communicate since they learned that some of the means previously thought undetectable were actually being monitored. Intelligence officials, speaking anonymously and unauthorized, have stated that terrorist organizations – in particular al-Qaida in the Arabian Peninsula, which includes al-Qaida’s Yemeni Branch – have been switching e-mail accounts, cellphone providers and adopting new encryption techniques to mask communications.  Given that we have 56 Yemeni detainees in Guantanamo, President Obama’s statement that he would soon lift the ban on Yemeni repatriation seems like a bit of a misstatement. If we can no longer monitor those whom we deem to be terrorists, I highly doubt we would allow for the transfer of detainees back to their home countries, regardless of whether they are seen as valuable or not.

Snowden’s leak on NSA surveillance has brought much debate, particularly regarding how much harm was actually done. On the one hand, it is easy to understand that by giving out information on how we are being monitored could cause issues, namely creating smarter criminals. On the other hand, is it really that unthinkable that a criminal is being monitored and therefore has already thought of means to go undetected? Political issues, etc. (which we do not fully understand the global implications of – and they will continue to rear their ugly heads) aside, has the information Snowden released really taught us any more than we could have learned from every cable series or spy movie of the past decade, not to mention the public debate surrounding the Patriot Act?  For instance, take Osama bin Laden. It took us a decade to find him because he went completely off the radar. 1) This is public information – if you’re that smart and that high up the food chain, you’re probably not using a phone and if you were, you’re using it very sparingly. 2) I could have told you that after watching one season of “The Wire.”

I understand the NSA’s problems with the leak.  I understand that some people may have been tipped off and might be harder to locate now.  But at the same time, come on. The guy at the top of the cell isn’t going to be dumb enough to be making phone calls. And the guy at the bottom of the cell is probably still going to be dumb enough to do something else you probably already have intelligence on.

Alexandra Kutner, Research Fellow
Center for Policy and Research

Senate Armed Services Committee Approves Guantanamo Transfer Bill

It now appears that the government is taking steps toward lightening the burden on Guantanamo Bay, and perhaps even closing it.  Yesterday, The New York Times reported that the Senate Armed Services Committee approved the National Defense Authorization Act for 2014.  The bill will lift a ban on the transfer of detainees to the United States for the purpose of prosecution.  The bill also pertains to transferring detainees for medical reasons, or even for continued detention in American prisons.

Since 2011, the U.S. Secretary of Defense has been required to certify that a list of conditions have been met before a detainee could be transferred.  Most of the conditions were extra security measures that essentially stopped the government from even attempting transfers, even for low-security risk detainees.  Under the new bill, the checklist would be done away with and the Secretary of Defense would only need to certify that the transfer would be in the best interest of national security.  This would be a much more flexible process that would probably lead to more transfers and possibly more trials for detainees.

Although the bill has been approved, it still has a long way to go before it becomes a law.  No actual vote has been held; members of the Committee have only agreed to debate the bill’s provisions on the Senate floor.  A rival bill has also been drafted by Republicans in the House of Representatives that would maintain the blanketed ban on transfers for any reason whatsoever.

So what are the benefits of the bill?  First of all, it might speed up the process for detainees who are actually being charged with crimes.  Military tribunals are notoriously slow, and we often have to wait years before we see a verdict in these trials.  If we opened up our traditional court system, we might see quicker results.  That’s not to say that our traditional system is lightning quick, but if we remove some of the barriers that prosecutors and defense attorneys face in military tribunals we would probably see a lot more efficiency.

Aside from that, the cost of providing medical treatment to detainees at Guantanamo can be astronomical.  Medical expenses are high as it is, but when you factor in transportation costs for medical personnel and equipment, they become ridiculous.  We would not only be able to cut our bottom line if we were able to provide quicker, better, and cheaper medical attention for detainees, but we would probably be able to quiet some of the human rights concerns that have stemmed from force-feeding detainees that have been on hunger strikes for months now.

Overall, there are a lot of positives to be found in the bill.  President Obama’s initial promise to close Guantanamo a year into his presidency has turned into a lengthy debacle and it doesn’t look like the government will be able to close it in one fell swoop.  If we make the decision to close it, it’s going to be a long process.  And even if this bill were voted into law it’s probably unlikely that high-value detainees would be transferred due to security issues.    So is this bill just a small step towards the slow phasing-out of Guantanamo Bay?  Yes.  But it’s a step nonetheless, and a step we can build on.

Chris Whitten, Research Fellow
Center for Policy and Research

Snowden Makes Request for Asylum in Ecuador

Just weeks after leaking the story that the NSA has been collecting phone records and the internet activity of American citizens, it appears that Edward Snowden will not be seeking permanent asylum in China.  Yesterday, multiple news agencies reported that Snowden was on his way to Moscow, where he will apparently wait for Ecuador to grant him asylum.  Earlier reports stated that he might be fleeing to Cuba, but it looks like he never boarded the flight that was supposed to take him there.

That’s right, the man who went on the record saying that he was concerned with the direction our government was headed in regard to freedom of speech and privacy has turned to China and Russia for protection.  I guess he didn’t hear about the Chinese government upping its own surveillance program in Tibet, or that Russian President Vladimir Putin had an entire band thrown in prison for voicing their opinions on Putin’s Russia, or any number of human rights violations both countries have been accused of committing in the recent past.  And he was probably too busy to notice that Ecuador has followed in Venezuela’s footsteps as far as its policy towards America.

Snowden probably fled China because of an extradition treaty we have with them, figuring that sooner or later he would be turned over to the American government and forced to answer for his actions.  It was probably a smart move in this regard since we don’t have an extradition treaty with Russia.  On top of that, our well-documented, strained relations with Putin’s administration make it even less likely that the Russians would ship him back to the U.S.  So why would he go to Ecuador?  Why not stay in Russia?  After all, the United States accounts for roughly 45% of Ecuador’s trade and they could experience a sharp economic decline if the U.S. decided to retaliate against them for harboring Snowden.

It might have something to do with the fact that the American government has already made a serious push toward convincing Russia to turn him over.  The media reported yesterday that the government had filed to revoke Snowden’s passport, which would presumably strand him in Russia for the immediate future.  And like I said before, Ecuador tends to take Venezuela’s stance on foreign relations with the U.S.  Ecuadorian President Rafael Correa is known for making strong statements against America, holding frequent rallies against U.S. “imperialism.”  So even if President Obama were to threaten economic sanctions, it doesn’t seem likely that Correa would cave.

It’s also worth noting that Snowden has reportedly received assistance from Julian Assange of WikiLeaks fame.  Assange calls Snowden “a hero” and claims that he is healthy and safe in an undisclosed location.  Assange himself has been holed up in the Ecuadorian embassy in London, another valid reason for Snowden to seek asylum in that country.  For one, he knows he has at least one ally with ties to the Ecuadorian government.  Second, the Ecuadorian government has harbored Assange for nearly a year, protecting him from charges similar to those Snowden would face in the U.S.  The precedent set by the Ecuadorian government has to be reassuring for Snowden.

Knowing this, it seems impossible not to question Snowden’s motives at this point.  That’s not to say that he was wrong for bringing this to light.  This story is definitely concerning and it’s provoked quite a range of responses from the public, and I could argue for both sides all day.  Regardless, it seems hypocritical for a self-proclaimed champion of free speech that claims to want to protect the rights of American citizens to turn to two countries known for censorship and a country that regularly voices anti-American sentiments.  I’m sure he has his reasons; we just don’t know what they are yet.  There’s still speculation that he has deals with foreign governments to sell information about our national security.  This seems plausible since he obviously has access to massive amounts of damning reports and other documents.  It could also be as simple as Snowden not wanting to spend the rest of his life behind bars, or worse.  He reportedly pleaded with the Ecuadorian government that he wouldn’t get a fair trial in the U.S.  Either way, it looks like the government’s chances at having a crack at him in a court of law are shrinking at a rapid pace.  Luckily, Snowden hasn’t shied away from the spotlight since he made international headlines.  We might have more answers soon, but for now we’re still playing the waiting game.

Chris Whitten, Research Fellow
Center for Policy and Research

U.S. Dons the Cape: The Quest for Syrian Peace

As Americans swarmed to theaters to see the new Superman movie, President Obama once again flew to Ireland for the G-8 summit to try and save the world. Russian President Vladimir Putin clung to his support of Bashir Al Assad’s Syrian regime in the faces of seven frustrated Western leaders. Canadian Prime Minister Stephen Harper called the conference “G-7 plus one,” and berated Putin for supporting Assad’s “thugs” (Whoever said Canadians were non-confrontational?).

Putin’s Senior Political Advisor, Yuri Ushakov, supported the claim that Assad using chemical weapons “does not look convincing” in defense of Russia’s continued aid to Assad’s forces. However, while the planes were landing in Ireland, Assad’s representatives were shopping for aircraft in Russia (Don’t worry. Russia only gave them 10 new MiG jet fighters that they implied should be used for defense only – defense from all that rebel aircraft that doesn’t exist).

Once again the US finds itself now a little more battle weary by stepping up to fight the bad guys. Though Britain and France threw their support behind the rebels long ago, they have gladly ceded the reigns of control of the operation to the US. In short, here we go again. But this time, let’s actually be the good guys. As Angelina Jolie reported to the UN this week, every 14 seconds a citizen crosses the Syrian border and becomes a refuge (half of them are children).  Something obviously needs to be done here.

Robert Springborg, professor at the Naval Postgraduate School in CA, opined, “This is the story of two drowning men clutching on to one another. We have every interest to ensure both drown.” What better movie plot is there? Two dictators, political oppression with military force, displacement of hundreds of thousands of innocent civilians – practically an invitation for Superman US to save the day. Time to take the identity-confounding glasses off Clark and show them who the men (and women) of steel really are!

Chelsea Perdue, Research Fellow
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

Chemical Weapons Use by Syrian Government Leads to Direct U.S. Military Aid to Rebels

Syria, a country scarred by decades of violent repression, erupted into civil war in mid-2011. Students were tortured for anti-government sentiments and live ammunition was routinely fired into crowds of protesters. The Human Rights Watch revealed in July 2012 that the Syrian government maintained at least 27 torture centers. In time, an insurgency arose, resorting to militant means to overthrow the Assad government.

The US has been reluctant to intervene in Syria’s affairs, though the plea for help has grown stronger with each passing month. Despite the $515 million in humanitarian assistance delivered to the Syrian opposition, Congress has been pressuring the Obama administration to provide munitions (including missiles) and to declare of a no-fly zone. The most notable opposition derives from Republican Sen. McCain: “This is not only a humanitarian issue. It is a national security issue. If Iran succeeds in keeping Bashar al Assad in power, that will send a message throughout the Middle East of Iranian power.” In addition, Democratic Sen. Casey urges that even provision of heavy weaponry may not be enough support for the Syrian opposition.

On June 13, 2013, intelligence confirmed the use of chemical weapons by the Assad government on at least four occasions. The weapons have reportedly killed between 100 and 150 people. In response, President Obama announced that the Assad regime had crossed the “red line” the US had drawn and authorized direct military aid to rebel forces. The White House Deputy National Security Adviser for Strategic Communications stated, “The President has said that the use of chemical weapons would change his calculus, and it has.”

So begins a new chapter in the Syrian civil war: Hope. A chapter the U.S. will help write.

Chelsea Perdue, Research Fellow
Center for Policy and Research