A federal judge declined Monday to order the US government to stop force-feeding Guantánamo detainees engaged in a long-running hunger strike, even as she condemned the practice as “painful … and degrading.”
US District Judge Gladys Kessler said in a four-page order that she lacked jurisdiction to grant relief for the detainees in the case. In an unusual move for a federal judge, she then identified someone who did have clear authority to resolve the issue – President Obama.
The order was issued after a group of four detainees had asked Judge Kessler and a second judge to intervene to prevent the continued force-feeding of hunger strikers at Guantánamo – including during the Islamic month of Ramadan, when Muslims fast during daylight hours.
US officials say that 106 of the 166 detainees at Guantánamo are engaged in a hunger strike, and that 45 of them are being force-fed through the use of a tube inserted through the nose and into the stomach.
Lawyers for the detainees said the procedure is intentionally painful and inhumane and want the procedure halted altogether.
Government lawyers counter that they will not allow prisoners to starve themselves to death, adding that officials at the detention camp would refrain from conducting any forced feeding sessions during the day throughout Ramadan.
In her brief order, Judge Kessler addressed the case of Jihad Dhiab, a Syrian national who has been held at Guantánamo without charge for 11 years. He was eligible for release in 2009, but the release has never been carried out.
The judge said Mr. Dhiab’s lawyers had presented “what appears to be a consensus that force-feeding prisoners violates Article 7 of the International Covenant on Civil and Political Rights which prohibits torture or cruel, inhumane, and degrading treatment.”
Kessler noted that the American Medical Association, the World Medical Association, the UN High Commissioner for Human Rights, and the UN Rapporteur on Human Rights had all issued statements condemning forced feeding.
The judge rejected the contention by government lawyers that the detainees were receiving timely and compassionate health care comparable to that provided to US military service members.
“It is perfectly clear from the statements of detainees, as well as the statements from the organizations just cited, that force-feeding is a painful, humiliating, and degrading process,” the judge wrote.
Kessler had earlier concluded in a 2009 case that the federal courts did not have jurisdiction to take up cases challenging the conditions of confinement at the Guantánamo detention camp. That restriction was part of laws passed by Congress that sought to limit the legal options open to the detainees.
“Even though this Court is obligated to dismiss the Application for lack of jurisdiction, and therefore lacks any authority to rule on Petitioner’s request, there is an individual who does have the authority to address the issue,” she said.
The judge quoted a May 23 speech by President Obama. “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.”
Kessler said that as president and commander-in-chief of the US armed forces, Obama had the “authority – and power – to directly address the issue of force-feeding of the detainees at Guantánamo Bay.”
Three other detainees presented a similar motion to US District Judge Rosemary Collyer. She had not yet issued a decision by late Monday, according to court records.