February 11, 2014

Court turns down Guantánamo force-feeding challenge

Appeals court decision lets lawyers for detainees revive argument that federal courts should intervene in force-feedings by U.S. military.

A federal appeals court Tuesday turned away a challenge to force-feeding Guantánamo Bay detainees on a hunger strike, but left the door open to legal efforts aimed at ending the practice.

The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit rejected a bid for a preliminary injunction to stop force-feeding at the U.S. Naval base in Cuba. But two of the three judges ruled that the detainees did have the right to challenge the force-feeding — rejecting two district court rulings that the judiciary didn’t have jurisdiction in the case.

The lawyer for the detainees, Jon B. Eisenberg, called that “a big win for us,” because it lets the detainees go back to the district court and press the case.

“This decision establishes that the federal courts have the power to stop the mistreatment of detainees at Guantánamo Bay,” Eisenberg wrote in an email. “The court of appeals has given us the green light to continue our challenge to the detainees’ force-feeding as being unconstitutionally abusive. We intend to do that.”

A Justice Department spokeswoman said the department was reviewing the decision.

Writing for the court, Judge David Tatel said that Congress never specifically blocked courts from hearing Guantánamo detainees’ challenges to their conditions. Tatel, an appointee of President Bill Clinton, added that the circuit precedent “establishes that one in custody may challenge the conditions of his confinement in a petition for habeas corpus” — the legal principle, enshrined in the Constitution, which allows courts to determine whether a prisoner is being held illegally.

Judge Thomas Griffith, an appointee of President George W. Bush, joined Tatel, but the third judge on the panel, Stephen F. Williams, said the lower court judges properly ruled they didn’t have jurisdiction.

“Congress has repeatedly and forcefully sought to withdraw the federal courts’ jurisdiction over Guantánamo detainees,” wrote Williams, an appointee of President Ronald Reagan.

In turning down the request for an injunction, the court ruled that the detainees didn’t meet a key condition for receiving one: the likelihood of success on the merits.

“We have no doubt that force-feeding is a painful and invasive process that raises serious ethical concerns,” Tatel wrote. But he said that to grant an injunction, “it is not enough for us to say that force-feeding may cause physical pain, invade bodily integrity, or even implicate petitioners’ fundamental individual rights. This is a court of law, not an arbiter of medical ethics … absent exceptional circumstances prison officials may force-feed a starving inmate actually facing the risk of death.”

The court issued the decision in the third month of a U.S. military blackout on hunger strike figures from the prison where last year more than 100 captives were on hunger strike.

When the military last disclosed figures in December, it said 15 captives were refusing to eat, and all were designated for tube-feedings if they refused to drink a doctor’s prescribed nutritional supplement.

Tatel stressed that in reaching the conclusion for purposes of the injunction, the court was only addressing the likelihood of success, not the actual merits. He said that it was conceivable that the detainees could prove that there were “ready alternatives” to force-feeding to achieve the government’s interests in preserving detainees’ lives and maintaining security and discipline at the facility.

The force-feeding has proven to be a nettlesome problem for the Obama administration. When he was asked about force-feeding at a news conference last year, President Barack Obama said, “I don’t want these individuals to die.”

At Guantánamo Tuesday afternoon, Navy Cmdr. John Filostrat said he hadn’t read the 49-page decision, “so I can't comment on it.” He said the blackout on hunger strike figures was continuing as was military monitoring of the health of protesting prisoners. “Keeping them safe is our main priority,” he said.

The Miami Herald’s Carol Rosenberg contributed to this report from Miami.

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