WASHINGTON — An appeals-court panel Friday wrestled with a challenge to force-feeding hunger strikers at Guantánamo Bay, Cuba, with a lawyer for the detainees acknowledging he was seeking a ruling “that may lead to death.”
But the attorney, Jon Eisenberg, told the three federal judges hearing the case that the authorities at the base in Cuba are force-feeding detainees before their lives are at risk.
“And then what?” Judge David Tatel asked pointedly. “Then force-feed them?”
“Good question,” Eisenberg replied.
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“If the court were to look for some kind of middle ground, I’d be OK with that,” said Eisenberg, referring to force-feeding detainees who are on the verge of death. He said after the hearing that wouldn’t be his preference, but that it would be better than the current situation.
According to Guantánamo officials, all 15 men still participating in a hunger strike to protest their indefinite detention are approved for force-feeding. That means they are sometimes force-fed, but it can vary from meal to meal, depending on the circumstances.
Detainees who are fed this way are strapped down and fed a liquid-nutrient mix through a nasal tube to prevent them from starving to death.
The force-feeding challenge presented the judges with complicated questions, including how far judicial review can stretch for hunger strikers.
The U.S. Court of Appeals for the District of Columbia Circuit panel pushed back against an Obama administration claim that courts are powerless to review the complaints of Guantánamo detainees who refuse to eat as a form of protest. But the judges also puzzled over whether they have the legal authority to consider such cases.
“This is a unique situation,” Judge Thomas Griffith said. “Guantánamo is a different sort of prison.”
The 45-minute oral argument Friday was the latest, and potentially most significant, in a series of legal challenges to force-feeding. Prison authorities in California and other states, as well as the federal authorities at Guantánamo, support the tactic when faced with inmates on extended hunger strikes.
In August, a San Francisco-based federal judge approved plans to force-feed California inmates, if necessary, who were taking part in a long hunger strike to protest solitary-confinement conditions. The appellate judges Friday cited the California developments several times, though the Guantánamo circumstances aren’t strictly comparable.
The Military Commissions Act of 2006 says “No court, justice or judge shall have jurisdiction” to consider legal actions concerning the treatment or “conditions of confinement” of those who “have been properly detained as an enemy combatant.” Two federal judges in July said the law prevented them from issuing preliminary injunctions to stop the Guantánamo force-feeding.
At the same time, one of the judges — U.S. District Judge Gladys Kessler — used her July 8 decision to denounce the practice she said she was powerless to stop.
“It is perfectly clear … that force-feeding is a painful, humiliating and degrading process,” Kessler wrote.
Detainees began a hunger strike around March, protesting conditions that included intrusive searches and indefinite detention. At the hunger strike’s peak, U.S. military authorities said 106 detainees were participating, with 46 designated for force-feeding. There are now 164 detainees.
The specific challenge at issue is being pressed by three detainees, each of whom has been cleared for release but nonetheless remain confined.
“Force-feeding is unethical, it’s inhumane (and) it’s a violation of international law,” Eisenberg said. He added that “these are unlawful conditions of confinement, these are unlawful restraints … (but) the threshold question is, does this court have jurisdiction?”
At Friday’s hearing, Justice Department lawyer Daniel Lenerz said force-feeding is only done to maintain a detainee’s health and life. He also said that judges must give deference to the professional judgment of prison administrators.
But Griffith challenged that. “That’s the end of the inquiry?” he asked.
Griffith said that such deference is given in a normal prison, where judges know what’s happening inside, but that’s not the case at Guantánamo.
Lenerz responded that “even more deference” should be given to the running of the prison at Guantánamo.
The case attracted a standing-room only crowd, including several people who later participated in a protest on the courthouse steps.
Asked about force-feeding at a news conference in April, President Obama said: “I don’t want these individuals to die.”