Judge blasts Pentagon but allows forced-feeding of Guantánamo detainee

A federal judge has blasted the Defense Department for its “intransigence” but said she had no choice but to lift a ban on the forced-feeding of a hunger-striking Guantánamo Bay detainee.

In a ruling issued late Thursday, U.S. District Judge Gladys Kessler said she felt compelled to remove a temporary restraining order that had blockedj personnel at Guantánamo from feeding Syrian detainee Mohammed Abu Wa'el Dhiab through his nostrils in a process the Defense Department calls “enteral feeding.”

“Thanks to the intransigence of the Department of Defense, Mr. Dhiab may well suffer unnecessary pain from certain enteral feeding practices and forcible cell extractions,” Kessler wrote in a three-page decision. “However, the court simply cannot let Mr. Dhiab die.”

The Pentagon had refused to revise some of its procedures for feeding Dhiab after Kessler, in an extraordinary move May 16, had imposed the temporary ban on the forced-feeding. On Wednesday, Kessler ordered the government to turn over 34 videotapes showing Dhiab’s forcible extraction from his Guantánamo cell and his forced-feedings in a restraint chair.

The Wednesday hearing included a lengthy bench conference, of which some details were revealed in Kessler’s ruling. “Mr. Dhiab’s physical condition was swiftly deteriorating, in large part because he was refusing food and/or water,” Kessler reported.

According to Dhiab’s attorneys, from the human rights organization Reprieve, he has been forced out if his cell an average of three times a week over the past year for forced-feeding. Guards in riot gear remove him, and shackle him to a restraint chair while technicians snake a tube through his nose and into his stomach, forcing in liquid nutrients.

“I move my head when they poke me with the tube,” Dhiab told his attorneys this week, according to a court declaration. “I can’t help it. It hurts too much. Then they hold my head, and it only gets worse. After that I start to resist because I have severe pain in my throat. In this moment the head guy shouts ‘Don’t resist!’ ”

Kessler noted that Dhiab has indicated his willingness to be enterally fed but that he wants the procedure to take place at the hospital. Kessler said Dhiab also wants to “be spared the agony of having the feeding tubes inserted and removed for each feeding, and the pain and discomfort of the restraint chair.”

“The Department of Defense refused to make those compromises,” Kessler stated.

While allowing the forced-feeding to resume, Kessler reminded officials to abide by standard operating procedures. She also said she would set a “speedy” schedule in order to decide on Dhiab’s underlying legal case.

A Defense Department spokesman defended the forced-feedings, saying they were used only to keep detainees alive.

“The department has long held that we shall not allow the detainees in our charge to commit suicide and it’s particularly worth noting here that we only apply enteral feeding in order to preserve life,” Lt. Col. J. Todd Breasseale said in a written statement.

Breasseale added that the Pentagon remains committed to President Barack Obama’s 2009 order that the detention facility be closed, a goal that Congress has thwarted by prohibiting the transfer of detainees to the United States.

“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,” he wrote.

The Republican-controlled House of Representatives on Thursday passed a defense bill that prohibits spending money on transferring detainees to the United States. By a 247-177 margin, the House also rejected an amendment by Rep. Adam Smith, D-Wash., to prepare for closing the detention facility by 2016.

Rep. Brad Wenstrup, an Ohio Republican and Army Reserve officer, declared that “it is entirely appropriate and lawful to hold detainees until our enemy’s forces are defeated.”

The White House has threatened to veto the $601 billion defense authorization act because of the Guantánamo provisions, among others.

“Operating the detention facility at Guantánamo weakens our national security by draining resources, damaging our relationships with key allies and partners and emboldening violent extremists,” the White House Office of Management and Budget said.

Jon Eisenberg, one of Dhiab’s attorneys, said Friday that he was “stunned” by the Defense Department’s actions, but he blamed the White House.

“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,” Eisenberg said in a statement. “Mr. Dhiab is about to suffer some awful abuse, but I have faith in his capacity to endure it.”

Clive Stafford Smith, director of Reprieve, said Friday that his organization, which represents several Guantánamo detainees, would continue to push its clients’ cases. “We must hold their feet to the fire on discovery and a hearing, so as to keep the suffering of the prisoners to a minimum,” he said.