A federal judge on Monday denied the petition of a detainee at the Guantanamo Bay military prison to end his continued force-feeding, saying the court had no jurisdiction. But in the legal order, the judge suggested the practice is illegal, saying she believes the process to be “painful, humiliating, and degrading.”
The U.S. District Court for the District of Columbia previously received a petition from Gitmo detainee Jihad Dhiab to enjoin the U.S. government from “continuing to subject him to force-feeding of any kind, including forcible nasal gastric tube feeding, and from administering medications related to force-feeding without his consent.” That application also asked the court to expedite its ruling, due to his fears that the force-feeding would occur during daylight hours of the holy month of Ramadan, when practicing Muslims are meant to fast.
Dhiab, a native of Syria, has been a prisoner at Guantanamo for eleven years now, despite being one of 55 detainees cleared for transfer in 2009. More than 100 of the 166 Gitmo detainees, Dhiab included, are on hunger strike and authorities there say they are force feeding 45, all against their will.
Judge Gladys Kessler said that while she was constrained in her ability to take the case, the Court “also feels constrained, however, to note that Petitioner [Dhiab] has set out in great detail in his papers what appears to be a consensus that forcefeeding of prisoners violates Article 7 of the International Covenant on Civil and Political Rights which prohibits torture or cruel, inhumane, and degrading treatment.” In his petition, Dhiab cited experts — including the American Medical Association, the World Medical Association, and the U.N. High Commissioner for Human Rights — who have all spoken out to condemn the practice of force-feeding. In her ruling, Kessler declared that she was in full agreement with them:
Despite the statements contained in the Declaration submitted by the Government in support of its Opposition to the Application claiming that “[t]he health care provided to the detainees being held at JTF-GTMO rivals that provided in any community in the United States and is comparable to that afforded to our active duty service members. Detainees receive timely, compassionate, quality healthcare and have regular access to primary care and specialist physicians,” 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.
Unfortunately, as Kessler explained in her memorandum, she is unable to accept the case under current federal law — specifically 28 U.S.C. § 2241(e)(2). Under that provision, Congress has declared that no “court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement” of anyone deemed an “enemy combatant.”
Kessler pointed out, however, that there is one person who has the authority to alter the treatment of prisoners at Guantanamo: President Barack Obama. After quoting his speech at the National Defense University in May in which Obama specifically lamented force-feeding at Gitmo, Kessler added: “It would seem to follow, therefore, that the President of the United States, as Commander-in-Chief, has the authority — and power — to directly address the issue of force-feeding of the detainees at Guantanamo Bay.”