WASHINGTON — The seemingly unending struggle over Guantánamo Bay — the prison President Obama vowed to close shortly after he was sworn in — is again reverberating over an “anguishing” case of force-feeding a Syrian detainee.
The case involves Abu Wa’el Dhiab, a Syrian who has been held for 12 years without a trial and who has gone on prolonged hunger strikes. Late Thursday, a US District Court judge lifted an order barring his force-feeding, even as she rebuked the military for using procedures that she said caused “agony.”
The decision underscored the stubborn problems entangling Guantánamo. A dispute over its future between Obama, who still wants to close it, and many Republicans in Congress, who want its use expanded, has resulted in a frozen-in-place policy that no one supports. There have been recurring vows to resolve the situation, but the years pass and the government keeps dozens of men imprisoned without trial, despite the recommendations of a task force in January 2010 that they be released.
Last week, Judge Gladys Kessler temporarily barred the military from force-feeding Dhiab. On Wednesday, she also ordered the Obama administration to turn over videotapes showing the procedure, which he is challenging. But in Thursday’s decision she cited “an anguishing Hobson’s choice”: to risk that the detainee dies by keeping the order in place as a legal fight unfolds or to 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.
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.
A leaked military file for Dhiab said he was arrested by the Pakistani police in April 2002 and later turned over to the United States.
Judge Gladys Kessler said she faced a ‘Hobson’s choice’ in ruling on whether to risk the detainee’s life or subject him to suffering.
The file describes Dhiab, who is now 42, as a member of a group of Syrians who fled to Afghanistan in 2000 after escaping a 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 was a honey salesman.
Dhiab was recommended for transfer more than four years ago, but officials fear repatriating him because Syria is in chaos and because of the death sentence. In February, the president of Uruguay offered to allow him to be released there, but Defense Secretary Chuck Hagel, who has final say under restrictions imposed by Congress, has not signed off on the transfer.
Lieutenant Colonel J. Todd Breasseale, a Pentagon spokesman, said, “We remain fully committed to implementing the president’s direction that we transfer detainees to the greatest extent possible, in a way that is consistent with the tenets of both our national security and our humane treatment policies, as we work toward shutting down the detention facility at Guantánamo Bay. ”
At one point this year, Dhiab suspended his hunger strike for a brief period when it appeared to him that release might be imminent. But he said he found the continuing limbo “too difficult to bear” and resumed the protest “because of the delay in releasing him,” a defense lawyer who spoke with him recounted in a new court filing.
Kessler wrote that Dhiab had indicated a “continued desire to refuse to eat and/or drink” since she forbade the military to force-feed him a week ago, and his condition was “swiftly deteriorating.”
Dhiab’s challenge to the military’s procedures for force-feeding hunger striking detainees is the first since a US appeals court ruled in February that the judiciary may review conditions of confinement at Guantánamo, reversing an earlier ruling by Kessler that she lacked authority to intervene.
She had asked the military to compromise over its procedures while the litigation unfolded. She wrote that Dhiab had asked to be fed at the base hospital without being restrained and without having the feeding tube reinserted and 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.