A two-page document recently obtained by VICE News contains the first disclosure by the US military that force-feeding people who are capable of making informed decisions about their own health is a violation of medical ethics and international law.
The June 21, 2013 "Legal Authority and Policy for Enteral Feeding at JTF-GTMO" (Joint Task Force-Guantanamo) was prepared by a military lawyer in the midst of a mass hunger strike at the detention facility that involved more than 100 detainees. Its stated goal was to "provide information regarding the legal authority and policy" surrounding force-feeding. The detainees, many of whom have been cleared for release or transfer, were engaging in hunger strikes to protest their indefinite detention.
"While enteral feeding is solidly supported under US federal law and policy, international law and certain medical ethical standards holds that the 'forced feeding' of a mentally competent person capable of making an informed decision is never acceptable," states the very last paragraph in the legal guidance prepared by United States Southern Command (SOUTHCOM), which has oversight of JTF-GTMO. The identity of the military lawyer who wrote it is redacted.
The document [pdf below], obtained in response to a Freedom of Information Act (FOIA) lawsuit, could affect the case of a Navy medical officer who refused to participate in force feedings on ethical grounds. The officer is facing a potential discharge as a result.
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In a statement provided to VICE News, attorneys Ronald Meister and Serge Krimnus — their law firm, Cowan Liebowitz Latman, represents the unnamed Navy nurse — noted the importance of the the disclosure. Meister is also a former Navy Judge Advocate.
"It is highly significant that the Department of Defense explicitly acknowledges that force-feeding at Guantanamo is contrary to medical ethics," the lawyers said. "This is the first disclosure we have seen admitting that."
Last July, a Guantanamo detainee and longtime hunger striker revealed to his attorneys at the international legal organization Reprieve that the nurse said he could not continue participating in the force-feeding of hunger strikers. It marked the first known instance of conscientious objection connected to the highly controversial practice.
The nurse, identified as a lieutenant who has spent 18 years in the Navy, was sent to the Naval Health Clinic New England in Rhode Island and now faces a possible administrative hearing before a three-officer board that could lead to an "other than honorable" discharge and the loss of pension and benefits for refusing to abide by orders.
'What this shows is that at the height of the hunger strike, they damn well knew this violated medical ethics and international law. But they never conceded in court.'
According to remarks Meister made last November during a conference call with reporters, the nurse decided Guantanamo's force-feeding protocols were unethical at some point after the protocols were changed. The procedure calls for a detainee to be strapped into a restraint chair for as long as two hours while a nasogastric tube is snaked into his nostril and down to his stomach as liquid nutritional supplement is pumped into his body.
Military officials have long claimed that Guantanamo's force-feeding policy is safe and humane, and based on US Bureau of Prison guidelines. But the American Medical Association, the American Nurses Association, and other medical groups have condemned the practice, saying it "violates core ethical values of the medical profession."
In the statement Meister and Krimnus provided to VICE News, the lawyers said the legal guidance "quotes (without attribution) the World Medical Association's Declaration of Malta on Hunger Strikers, which states in unequivocal terms that '[f]orcible feeding is never ethically acceptable' and clarifies that this is so '[e]ven if intended to benefit' the patient. Force-feeding is not prohibited under 'certain' standards, as the document states, but by all of them."
A Guantanamo spokesman said on the same day in 2013 that the legal guidelines were issued that the practice of force-feeding was a "lawful order," and that dozens of doctors and nurses who were deployed to the facility to administer the feedings didn't object to it.
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According to the legal guidance, Guantanamo's so-called standard operating procedure for force-feeding was reviewed and approved in 2005 "via memorandum" by then-Deputy Assistant Secretary of Defense Matthew Waxman. Waxman is now a law professor at Columbia University.
While the majority of the document is devoted to explaining how force-feeding competent detainees is legal under US federal law and policy, the legal guidance also says "there is no absolute requirement" to do so. Yet, it does note that federal courts "have stated the government has an implied duty of care for those in penal custody that if violated may give rise to actions for negligence or civil rights violations."
The document said Waxman noted in his 2005 memo that "exceptions to the principle of patient consent to medical treatment exist 'in areas such as communicable disease prevention, occupational health, and penal medical care.'"
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Dr. Steven Miles, a professor of medicine and bioethics at the University of Minnesota Medical School, reviewed the legal guidance for VICE News. He said the single paragraph that acknowledges force-feeding detainees violates international law and medical ethics is the first time he has seen the US military do so.
"That being said, the grounding of their policy on saving lives and [Bureau of Prisons] practices fits their previous statements," said Miles, who has written extensively about Guantanamo and medical ethics, and who testified in federal court cases challenging the legality of the practice. "By 2013, the date of this memo, [the Department of Defense] had been regularly and long assailed for force feeding. If this is the first acknowledgement, it is a greatly belated one."
The June 2013 legal guidance was issued at a time of heightened attention to the Guantanamo hunger strikes and force-feeding of detainees. Two days before it was issued, Senator Dianne Feinstein sent a letter to Secretary of Defense Chuck Hagel that said the force-feeding policies "are out of step with international norms, medical ethics, and the practices of US Bureau of Prisons." Feinstein reached that conclusion after she and Senator John McCain and White House chief of staff Denis McDonough toured the facility and observed the procedure.
Additionally, the timing of the legal guidance coincides with the start of high-profile legal challenges by Reprieve over the method. On July 8, 2013 US District Court Judge Gladys Kessler issued a four-page opinion declining to intervene and end force feedings — but also saying President Barack Obama could do so. A week later, US District Court Judge Rosemary Collyer issued a separate opinion in which she rejected a bid by three hunger striking detainees to end the practice, noting that their "real complaint is that the United States is not allowing them to commit suicide by starvation."
Reprieve attorneys appealed the decision. In September 2013, government attorneys filed court papers saying that the detainees' attorneys' assertions that force-feeding violates medical ethics are "incorrect." They added, "nor are petitioners correct in their suggestion that enteral feeding is 'out of steps with international norms.'"
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That was about about two or three months after the release of the legal memo that asserted otherwise, points out Jon Eisenberg, one of the attorneys who sued the government on behalf of several detainees.
"What this shows is that at the height of the hunger strike, they damn well knew this violated medical ethics and international law," Cori Crider, an attorney with Reprieve, told VICE News. "But they never conceded in court. They basically tried to make medical ethics an extremist position when we litigated. This is a written concession by the government that their policy may get their [medical] staff in professional hot water. They knew there was a clash between their policy and the medical profession."
Eisenberg believes that the inclusion of the paragraph "can provide an important defense for the Navy nurse," and may provide cover for other Guantanamo medical personnel to defy orders and refuse to participate in force feedings.
"How can they possibly discharge [the nurse] dishonorably from the Navy for refusing to do something that JTF-GTMO's own lawyer says is unethical?" Eisenberg said. "If it violates medical ethics, wouldn't that seem to indicate that anybody who works at Guantanamo is justified in refusing to participate in a force-feeding based on medical ethical grounds?"
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Guantanamo spokesman Captain Tom Gresback would not say whether medical personnel are permitted to opt out of force-feeding detainees. Back in 2007, Guantanamo's former head of nursing, Commander Jane French, said medical personnel who objected to the practice would be excused and someone else would administer it.
Although Gresback did not say whether that is still the case, he defended the detention facility's force-feeding policy.
"Although the policy document acknowledges opposing opinions, US law, including federal case law, supports enteral feeding within the US penal system," Gresback said. "The government has a significant interest in protecting life, preventing suicide, and ensuring prison safety. The detention facility at Guantanamo stands by its policy of enteral feeding of detainees as a last resort when medical staff determines it is necessary to prevent death or serious harm."
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The Navy nurse's attorneys say that even with the revelation of the legal memo, they don't know what will ultimately happen to their client. For now, they are awaiting the decision of the chief of naval personnel.
"We hope the Department will recognize what all national and international bodies agree is right, and both allow and require their officer professionals to follow their respective codes of ethics," Meister and Krimnus said in their statement to VICE News. "A proper start would be to let our client complete an honorable career instead of attempting to expel him for complying with those standards."
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