Case of Navy nurse who refused to force-feed could put Guantánamo hunger strike on trial

No decision has been made on whether the U.S. Navy will court-martial a nurse who refused to force-feed hunger strikers at Guantánamo during the summer, the nurse’s commander says.

But those who are watching the case say a military trial could put a spotlight on both Guantánamo’s hunger-strike policy and how the military manages medical-ethics issues.

Retired Navy Capt. Albert J. Shimkus Jr., who teaches at the U.S. Navy War College in Newport, R.I., calls it “an important time, not only for this individual but also an important time for military medicine and how we interact with our patient and the process by which these decisions are made.”

The nurse, who has been identified as a Navy lieutenant, reportedly turned conscientious objector after handling months of feedings. He was sent home early to the Naval Health Clinic New England in Newport, R.I., this month after serving with the 139-member Navy medical staff assigned to care for Guantánamo’s 149 detainees.

Navy Capt. Maureen M. Pennington, his commander, said Wednesday that the nurse was on leave this week, spending time with friends and family members, and that his way forward had yet to be decided.

At Guantánamo, “there was an investigation done and currently it’s under review. The process has started.”

She would not elaborate. “I want to respect his privacy,” said Pennington, who is also a nurse.

As the lieutenant’s commander, it would be up to Pennington to decide what, if any, disciplinary action to pursue. Typically that starts with what is called a 15-6 investigation: a description of what happened and a recommendation of whether to order a court-martial. The captain would not say whether that was the investigation she had received.

Whatever the outcome, two former senior military medical officers said the case would serve as a significant precedent in this, the 13th year of the detention center at the U.S. enclave in southeast Cuba, where an undisclosed number of the 149 captives were on a hunger strike Thursday.

If it plays out with a court-martial, that will allow an airing of the facts. So far, the only description of how the refusal occurred has come from an attorney for a detainee who said the nurse willingly took part in the process for several months but became disenchanted.

The prison spokesman confirmed there had been a refusal, but gave no details.

Shimkus, who spent four decades in Navy medicine, served as Guantánamo’s first detention-center commander of medical operations. He said the case tests military medicine’s ability to accommodate “any professional who does due diligence with regard to providing a treatment and then considers that treatment to be something that patient doesn’t desire — even in a national-security environment.”

Ethics are not black and white, he said, and from what little is known about the case, it appears that the force-feeding process “began to weigh on his conscience over time, and I think he made a choice that, in my professional life, I can’t participate in this.”

The case is also likely to drive a review of “the process of how to recuse oneself” when a health provider in uniform navigates the “dual loyalty question” of obligation to the nation versus the obligation to the patient.

Retired Army Brig Gen. Stephen Xenakis, a psychiatrist who has examined Guantánamo captives, also says a court-martial could end up putting Guantánamo hunger-strike policy on trial.

During the 1980s, he notes, military doctors were allowed not only to refuse to perform abortions but also to proclaim their opposition to doing them, “and we didn’t prosecute them.” But something about medical autonomy changed during the war on terror.

“The issue is that, with this war, there has been a shift in what has been the professional autonomy of clinicians. They’ve been subordinated to the combat arms, to the war-fighters,” says Xenakis.

“Forty years ago we were respected for our professional autonomy and our independence — and we were expected to act in a way that was independent and was not going to be influenced by what the commanders were going to be ordering, and what their particular objectives were.”

Last summer, as the hunger strike drew participation by more than 100 detainees, Xenakis testified against the policy in the U.S. Senate, calling the forced feedings “cruel and degrading” and a violation of medical ethics.

The military has since refused to disclose how many detainees were given tube feedings on a given day.

Guantánamo captives began staging hunger strikes during the earliest days of the detention center.

And Shimkus, who says his views are his own, not the War College’s, suspects this summer’s nurse probably was not the first military medic to refuse to take part in forced feedings. But the issue did not come up in Shimkus’ time, in 2002, because once a hunger-striking captive was moved away from other detainees, he says, he agreed to accept nourishment.

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