WASHINGTON — A U.S. District Court judge late Thursday lifted an order that had barred the military from force-feeding a hunger-striking Guantánamo Bay detainee, and sharply rebuked the Obama administration for refusing to compromise over procedures she said caused “agony.”
Judge Gladys Kessler said in a three-page ruling that she faced “an anguishing Hobson’s choice” involving the detainee, Jihad Ahmed Mujstafa Diyab: to keep the order in place as the fight continues and risk that he dies, or to lift it and allow the military to take steps to keep him alive using procedures that inflict “unnecessary” suffering.
“The court simply cannot let Mr. Dhiab die,” she wrote, using an alternate spelling for the detainee’s name.
The force-feeding procedure involves strapping a detainee into a chair and inserting a tube through his nose and down his throat. Liquid nutritional supplement is then poured into his stomach.
Diyab, 42, a Syrian who has been held without charges at Guantánamo for nearly 12 years, was recommended for transfer in 2009-10 by a task force.
But officials fear repatriating him because Syria is in chaos and because its government has apparently sentenced him in absentia to death. The president of Uruguay has offered to allow him to be released there, but so far the Obama administration has not done so.
A long-term hunger striker, Diyab had been indicating a continued desire to refuse to eat or drink since Kessler forbade the military to force-feed him a week ago, and his condition was “swiftly deteriorating,” she wrote.
Diyab’s challenge to the military’s procedures for force-feeding hunger striking detainees is the first.
Last year, Kessler ruled that she lacked authority to intervene on such matters while sharply criticizing the military’s procedures as “painful, humiliating and degrading,” and making an unusual appeal to President Barack Obama to address issues at the prison raised by a major hunger strike.
But earlier this year, a federal appeals court ruled that the judiciary does have authority to review conditions of confinement at Guantánamo.
Kessler had asked the military to negotiate a compromise over its procedures with the detainee and his representatives while the litigation unfolded.
She wrote that Diyab had asked to be fed at the base hospital without being strapped into the restraint chair and without having the feeding tube reinserted and then removed for each cycle, sparing him the “agony” of that procedure.
If he could have been fed in that manner to prevent him from committing suicide by starvation, “it would have then been possible to litigate his plea to enjoin certain practices used in his force-feeding in a civilized and legally appropriate manner,” she wrote. “The Department of Defense refused to make these compromises.”
Lt. Col. Todd Breasseale, a Pentagon spokesman, did not directly address Kessler’s criticism. He said the department would not allow detainees in its custody “to commit suicide” and that it used “enteral feeding in order to preserve life.”
On Thursday, Cori Crider and Courtney Busch, two members of Diyab’s defense team, filed a series of allegations relayed from Diyab related to the force-feeding practices. Among other things, they told the court, he said the medical staff sometimes deliberately overfed detainees to the point of discomfort.
Diyab further alleged that another hunger-striking detainee, Ahmed Rabbani, started to bleed on April 29 when the medical staff tried to intubate him, leading to “extremely painful swelling in his nose and throat.” As a result, he said, he “developed a bad chest infection and had been vomiting blood over the previous few days.”
The allegations could not be independently verified. Diyab’s defense team recently learned that some videotapes of forcible cell extractions and force feedings of Diyab and other detainees exist, and at a hearing Wednesday Kessler ordered the military to turn 34 such tapes of Diyab over to his lawyers.
But in his statements, Diyab said the tapes might not show everything. The medical staff and guards, he said, turn the cameras off when they are forcing the tube into him, and turn them on only when he has stopped resisting.
A leaked military file for Diyab said he was arrested by the Pakistani police in April 2002 and several months later was turned over to the United States. He is being detained indefinitely as a wartime prisoner and has not been charged with a crime.
The files describe Diyab as a member of a group of Syrians who fled to Afghanistan in 2000 after escaping a Syrian government crackdown on terrorist cells. He was sentenced to death in Syria, it said, for “unspecified political crimes,” which it speculates was “probably for his terrorist activities in Syria,” which it does not detail.
The assessment also alleges that he was a document forger for jihadist groups, saying he had 30 passport-size photos in his possession when he was arrested. It says he insisted instead that he had moved to Pakistan with his family and was a honey salesman.
About half of the 154 detainees remaining at Guantánamo have been long recommended for transfer. In 2009, when Obama took office, he promised to close the prison within a year. But the effort collapsed by 2011, in part because Congress imposed steep restrictions on further transfers, citing instances in which some former detainees had engaged in terrorist-related activity.
In early 2013, nearly 100 detainees staged a major hunger strike, and military officials described them as in despair over whether they would ever go home alive. Obama pledged to reinvigorate his efforts, and a dozen detainees have been transferred since last summer. Congress has also relaxed some of the restrictions on transfers.
Still, amid the hunger strike last year, Obama also defended the policy of force-feeding detainees who would not eat, despite criticism by groups like the American Medical Association, which said it was a violation of medical ethics.
“I don’t want these individuals to die,” Obama said.
By the end of last summer, participation in the hunger strike had fallen off sharply. But the military has also stopped making public how many detainees are refusing to eat, and lawyers for detainees contend that the guards are using rough force-feeding to break the wills of those who continue.
“I am stunned that the Department of Defense refused to agree to the reasonable compromise Mr. Diyab proposed,” said Jon Eisenberg, another lawyer for Diyab, who has appeared on his behalf before Kessler. “But the real responsibility lies at the door of President Obama, who utters lofty words but fails to stop the terrible things that are happening at Guantánamo Bay on his watch.”