Two weeks ago, medical personnel at Guantanamo Bay told VICE News that hunger-striking detainees are fed no differently than American patients in US hospitals who require feeding tubes.
But today, lawyers for Abu Wa'el Dhiab, a 43-year-old Syrian national who has been held captive at Guantanamo since 2002 — he has been cleared for transfer out of the detention facility since 2009 — are arguing in US District Court in Washington, DC that Guantanamo's new force-feeding protocols are particularly abusive, and specifically designed to deter detainees from participating in the hunger strikes.
It's a historic case that could force military officials to radically change the way detainees who engage in the protests are treated by their captors.
The roots of the legal challenge date back nearly 13 years. Weeks after the first "War on Terror" captives were transferred to Guantanamo in January 2002, a handful of men refused to eat, claiming they were on hunger strike to protest the desecration of a Qur'an by a guard.
By the end of February, two-thirds of the 300 inmates who were held in the crude open-air cages at Camp X-Ray launched another hunger strike to protest a rule that prohibited detainees from wearing turbans. That was the first time military officials at the detention facility declared they would not allow Guantanamo detainees to starve to death, and would force-feed them "intravenously" if necessary.
The hunger strikes persisted. So Guantanamo military officials implemented new protocols that human rights groups said were aimed at breaking the will of the detainees to continue protesting.
In December 2005, a forensic psychiatrist and three consultants from the federal Bureau of Prisons (BOP) traveled to Guantanamo and recommended that detention officials change the standard operating procedures for dealing with hunger strikes. The BOP suggested the use of five-point restraint chairs, described by the company's manufacturer, a retired sheriff, as a "padded cell on wheels."
A hunger striker who refused to voluntarily drink a liquid nutritional supplement, the new protocols said, would be forcibly removed from his cell and strapped into the chair twice a day for as long as two hours while a nurse snaked a nasogastric tube into his nostril and down to his stomach.
The government had argued that the classified videos should be concealed from the public because they could be used by enemies of the US as a propaganda tool. The judge said that was 'just plain implausible.'
Five restraint chairs were sent to Guantanamo in early December 2005; another 20 arrived a month later. Military officials vehemently denied the chairs were used as a form of punishment to break hunger strikes and insisted that their use was "safe," "humane," and "legal" — three of the four words that make up Guantanamo's official motto.
But nearly a decade later, a powerful Democratic lawmaker called into question the medical ethics of the procedures the military says it adopted straight from the BOP. Senator Dianne Feinstein, the chairwoman of the Senate Intelligence Committee, sent a letter to Secretary of Defense Chuck Hagel on June 19, 2013 after she toured the detention facility during a mass hunger strike. She said the military's force-feeding practices were not only "out of sync with international norms" but also deviated from BOP practices; restraint chairs are rarely used in federal prisons.
"Within the Bureau of Prisons, force-feeding is exceedingly rare," Feinstein wrote. "When force-feedings do occur… we have been told that nearly 95 percent of the time they are conducted with a fully compliant inmate requiring no restraints. At Guantanamo Bay, on the other hand, all detainees being force-fed — regardless of their level of cooperation — are placed in chairs where they are forcibly restrained."
Late last Friday, the government filed court documents, including an unclassified version of its recent restraint chair and hunger strike protocols, and sworn declarations from Guantanamo medical officers, that reveal for the first time the use of the chair has no medical purpose, contradicting the military's prior claims.
Katherine Hawkins, the lead investigator with the nonpartisan Constitution Project's Task Force on Detainee Treatment, said the new disclosures are "especially important."
"It confirms what detainees' counsel have alleged since 2005 when the restraint chairs were introduced, and what the Constitution Project report and research by Senate Intelligence Committee staff gave more evidence for last year: The use of the restraint chair for force feeding is not a medical decision, and not in line with general Bureau of Prison practices," she told VICE News. "It is not even in line with general Guantanamo use-of-force policy for the use of the restraint chair. It is being used as a punishment for hunger striking."
The introduction of the restraint chairs in early 2006 appeared to lead to the end of a mass hunger strike that began during the previous summer. Seven years later, guards were instructed to inspect detainees' Qur'ans to ensure they were not hoarding medications or other contraband. The handling of the holy books led to a small hunger strike that quickly morphed into a demonstration involving more than 100 detainees.
Military officials stocked up on more than 100,000 cans of Ensure and other liquid nutritional supplements while denying the existence of a mass protest. The military also secretly rewrote their hunger strike and restraint chair protocols in March 2013 to prepare; it was the first time the policy had been changed since 2005. The release of the 30-page unredacted document two months later laid bare the force-feeding procedures, which included the use of a highly controversial drug used to treat heartburn caused by acid reflux. The drug, Reglan, has been known to cause the irreversible neurological disorder tardive dyskinesia.
Guantanamo military officials, in an effort to live up to the detention facility's motto of being "transparent," provided the media with a daily tally of the number of detainees refusing to eat as well as the number of detainees who were being force-fed, leading to a stream of news reports.
Meanwhile, a fierce battle erupted between detainee lawyers and military officials over control of the hunger strike narrative. Detainees, with the help of their attorneys, published op-eds in major newspapers describing their force-feeding as inhumane and a violation of the Geneva Conventions. Military officials, in statements issued to reporters, asserted that the detainees were liars who were trying to attract media attention, a common tactic among "al Qaeda terrorists," and that force-feeding, by that point referred to as "enteral feeding" by the military, was a relatively easy procedure that caused only minor discomfort.
Military officials also accused the detainees' attorneys of inciting their clients. (PowerPoint slides released earlier this year revealed that Guantanamo military personnel instructed VIPs who visit the facility that hunger strikes waged by detainees are not a form of protest against their indefinite detention and treatment, but one of six "offensive tactics" detainees use to attack the US government.)
The competing narratives — and the secrecy surrounding the hunger strikes — between the military and the lawyers underscored the impossible task of arriving at any reliable truth about the matter, especially when access to the detainees is prohibited.
Attorneys for Dhiab and other captives sued the government in federal court in July 2013 in an effort to end the force-feeding. But the judge presiding over Dhiab's case, Clinton appointee Gladys Kessler, declined to issue a ruling at the time, saying she was powerless due to legislation passed by Congress that prohibited judges from making decisions on the treatment of Guantanamo detainees. When she issued her order, however, she noted that President Barack Obama could end what she said was clearly a "painful, humiliating, and degrading process."
The lawyers appealed Kessler's decision.
In December 2013, Guantanamo officials had enough of the negative news coverage. They said it was interfering with the "safe, humane, legal, transparent" care and custody of detainees. So they adopted a new policy — an increased level of secrecy. Spokesmen at Guantanamo said they would no longer provide the media with the daily tallies of detainees engaging in hunger strikes or being force-fed. Nor would they discuss hunger strikes in mere general terms.
"It's been a self-perpetuating story," Commander John Filostrat, director of public affairs for Joint Task Force-Guantanamo, said in an interview at the base last December. "It's (the strikers') desire to draw attention to themselves, and so we're not going to help them do that."
The hunger strikes — and Guantanamo in general — largely faded from the headlines. By then, most of the detainees had resumed eating solid foods.
The media blackout coincided with the rewriting, yet again, of the hunger strike and force-feeding protocols, which rebranded hunger strikes as "long-term non-religious fasts." But huge chunks of the standard operating procedures, obtained by VICE News last March in response to a FOIA lawsuit, were redacted.
Jon Eisenberg, an attorney on Dhiab's legal team, said the blacked-out portions of the hunger strike standard operating procedure concealed information pertaining to the quantity and speed of force-feeding. This information, he said, was crucial, because it would show that the new procedures are "a form torture colloquially known as 'the water cure.'"
"The water cure dates back to the Spanish Inquisition and was used by the Imperial Japanese Army against US and allied prisoners of war during World War II," Eisenberg wrote in an op-ed published in the Hill. "At Guantanamo Bay, military doctors and nurses have medicalized the water cure. They are now using excessively thick nasogastric feeding tubes to force as much as two-thirds of a gallon of fluid into hunger-striking detainees in as little as 20 minutes, twice each day, while they are tightly strapped to a specially made restraint chair."
Last February, the conservative US Court of Appeals for the District of Columbia Circuit sent Dhiab's case back to Kessler, asserting that judges "have the power to oversee complaints by detainees about the conditions of their confinement at the military prison" as part of their overall habeas corpus challenges.
The volume of liquid supplements detainees are fed during a tube-feeding session is expected to be discussed at this week's hearing in the first legal challenge over Guantanamo's force-feeding practices.
The Obama administration, which claims it is the "most transparent administration in history," tried to shut the public and the media out of the trial. Government lawyers said in court papers that because the case involved classified and unclassified information, the courtroom should be closed to prevent "slip ups" that could result in the unauthorized disclosure of information.
Historically, federal judges overseeing Guantanamo cases have given the government the benefit of the doubt on secrecy. But on October 2, Kessler denied the government's motion, stating in a ruling that with a "long-standing and ongoing public interest at stake, it would be particularly egregious to bar the public from observing the credibility of live witnesses, the substance of their testimony, whether proper procedures are being followed, and whether the Court is treating all participants fairly."
The following day, Kessler issued another ruling. She said 28 videotapes that showed Dhiab being forcibly removed from his cell during the height of the 2013 hunger strike and taken to a restraint chair where he was force-fed could be released to more than a dozen media organizations that intervened in the case.
The government had argued that the classified videos should be concealed from the public because they would harm national security and could be used by enemies of the United States as a propaganda tool.
Kessler said the Obama administration's arguments were "just plain implausible."
It's the second time this year that a federal judge has refused to bow to government demands to keep secret images involving the treatment of war on terror captives. In August, US District Court Judge Alvin Hellerstein told government lawyers he may order the release of decade-old photographs of detainees being abused by their US military captors in Iraq and Afghanistan that the government argues should remain secret.
In a statement issued through his attorneys at the international legal organization Reprieve, Dhiab said he wants the videotapes of his force-feeding to be released publicly.
"I want Americans to see what is going on at the prison today, so they will understand why we are hunger-striking, and why the prison should be closed," he said. "If the American people stand for freedom, they should watch these tapes. If they truly believe in human rights, they need to see these tapes."
Dhiab, one of a handful of detainees expected to eventually be transferred to Uruguay, said he's willing to be force-fed in a more humane manner.
"American law says prisoners may be force-fed if they are at imminent risk of death or serious bodily injury, but the force-feeding may not be done before it is necessary or in a gratuitously abusive manner," Dhiab attorney Eisenberg told VICE News. "What we want Judge Kessler to do is bring the force-feeding at Guantanamo Bay in line with what the law requires, and prohibit gratuitously abusive force-feeding practices and premature force-feeding, and allow [detainees] to use the only means they have for protesting their indefinite detention without trial."
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