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
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.
Center for Policy and Research
For a prosecutor, it is an odd way to “stick to his guns,” but Brig. Gen. Mark Martins, the chief prosecutor for military commissions at Guantanamo Bay, is refusing to support conspiracy charges against the alleged 9/11 conspirators. He had previously acceded to dropping the conspiracy charges after the recent reversal in Hamdan. But the Convening Authority, Vice Admiral Bruce MacDonald (Ret.), pushed back by refusing to allow the charges to be dropped. Now the prosecutor is left in an uncomfortable position.
However, experts have noted that the Military Commissions Act of 2009 does not allow anyone, even the Convening Authority, to interfere with or unduly influence the prosecutor’s professional judgement. He may therefor allow the defense motion for dismissal of the conspiracy charges to go uncontested. In theory, he may even argue in support of it.
As noted by James Connell, defense counsel for co-defendant Ammar al Baluchi, this contest between the prosecutor and the Convening Authority emphasizes one of the fundamental weaknesses of the military commissions system: the Convening Authority has both judicial and prosecutorial duties. According to Connell, “The Convening Authority’s insistence on prosecution of the conspiracy charge at the same time it controls defense funding and hand-picks the panel of military officers to hear the case illustrates this conflict of interest.”
So far it seems that all the players are exercising independent judgment. However, these events should be a warning to Congress that the system they designed is far from perfect, with flaws that have long since been addressed in our federal courts. The use of a convening authority for courts martial allows a commander to balance the need for strong discipline with the exigencies of maintaining a functioning military. Such considerations simply do not exist for accused terrorists. As in federal prosecutions, terrorism and war crime charges should be brought by a purely prosecutorial authority, with an independent judicial authority controlling which charges may proceed. This is precisely what we have in federal courts.
Paul Taylor, Senior Research Fellow
Center for Policy & Research