A federal judge Thursday rejected an Obama administration bid to shut the public out of next week’s hearing showcasing medical testimony in one Guantánamo captive’s challenge of the prison’s forced-feeding policy.
U.S. District Judge Gladys Kessler noted in her five-page ruling that Syrian detainee Abu Wael Dhiab’s hunger strike and challenge to his forced-feeding “has received a good deal of publicity in the press.”
“With such a long-standing and ongoing public interest at stake,” she ruled, “it would be particularly egregious to bar the public.”
Monday’s hearing, which is expected to last at least two days, is the latest in a long-running saga at the U.S. District Court over civilian judges’ authority to intervene in the conditions of confinement at the U.S. Navy base prison currently holding 149 captives — half of them, like Dhiab, approved for release years ago. He got to Guantánamo in 2002 and Uruguay has agreed to resettle him, possibly later this year, because he can’t go home to turbulent Syria.
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But with the Obama administration slow to take up Uruguay’s offer, he’s been a participant in the prison’s long-running hunger strike to protest his plight. Now, Army guards systematically force him from his cell and strap him into a restraint chair to receive nutritional supplements pumped into his stomach via a tube snaked up his nose.
Kessler framed the issue in next week’s installment to a very limited question: whether to order the U.S. military to stop using a tackle-and-shackle and five-point restraint system of immobilizing his limbs and head before and during a nasogastric feeding “so long as he indicates that he is willing to submit to such feeding compliantly.”
The military has argued that judges have no authority to intervene in their troops’ practices, called Standard Operating Procedures, which are designed to maintain order and discipline in their war-on-terror prison. The military has alternately classified or marked as protected its prison camp procedures.
Justice Department lawyers argued that, because two of the doctors expected to testify were given access to secret information, the judge should close the hearing and release a transcript scrubbed of classified and protected information after the fact.
One is a former Army psychiatrist, retired Brig. Gen. Stephen Xenakis, an outspoken critic of Guantánamo’s handling of the hunger strike. The other is noted torture expert Sondra Crosby, a Boston-based internist. Kessler declared them expert witnesses “who understand the difference between open and closed sessions and classified and unclassified information.”
Lawyers for Dhiab and 16 news organizations opposed closure of the hearing. They urged Kessler to let the doctors testify without invoking classified information. Then, if need be, the judge could close the court to let them elaborate with answers involving national security information they learned at the prison in southeast Cuba.
“Bifurcation is a reasonable, sensible and doable alternative,” the judge ruled, adding that a third witness had no access to classified information and would testify entirely in open court. He’s Dr. Steven Miles, a Minnesota-based medical ethicist, expected to testify Tuesday.
Next week’s hearing will put a very public spotlight on the forced-feedings that President Barack Obama lamented in a May 2013 speech at the National Defense University. In December, the prison of 149 captives and 2,200 staff imposed a blackout on daily hunger strike figures after nine months of transparency.
The Justice Department had no immediate comment. Kessler ordered a 2 p.m. telephone conference for Friday to map out Monday's hearing.
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From the ruling
“With such 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.
This request, which appears to have been deliberately made on short notice is -- in this Court's view-deeply troubling. One of the strongest pillars of our system of justice in the United States is the presumption that all judicial proceedings are open to the public whom the judiciary serves.”
▪ U.S. District Judge Gladys Kessler
The psychiatrist’s report to the court is here.
The torture expert’s report to the court is here.
The medical ethicist’s report to the court is here.