Circuit Won’t Close Book on Gitmo Force-Feeding

(CN) - Though the D.C. Circuit refused to stop Guantanamo Bay from force-feeding hunger-striking prisoners, it removed jurisdictional hurdles that will let the detainees continue their challenge.

The issue went to the federal appeals court after two federal judges in Washington rejected force-feeding challenges brought by four Camp Delta inmates, led by Shaker Aamer.

U.S. District Judge Rosemary Collyer showed little sympathy for the detainees' choice of protest, which she likened to suicide. U.S. District Judge Gladys Kessler, on the other hand, condemned the practice of force-feeding as "a painful, humiliating, and degrading process," but she nonetheless found that she lacked jurisdiction to put a stop to it.

A three-judge panel of the D.C. Circuit heard appellate arguments from Aamer and his next friend Saeed Siddique in October.

The divided court appeared Tuesday to tilt more toward Kessler's end of the ethical debate.

Signaling future litigation on the issue, the two-judge majority said they had "no doubt that force-feeding is a painful and invasive process that raises serious ethical concerns."

The 36-page opinion notes that a "significant number of international organizations, medical associations, and public figures who have criticized the practice of force-feeding prisoners unwilling to eat."

The World Medical Association opposed coerced feeding in the early 1990s.

"Since oral argument in this case, a task force organized by the Institute on Medicine as a Profession and the Open Society Foundation has issued a scathing report detailing the abuses of medical ethics in the government's treatment of detainees in Guantanamo, Afghanistan, and Iraq, concluding specifically that doctors who assist in the treatment of hunger-striking Guantanamo detainees 'have become agents of a coercive and counter-therapeutic procedure that for some detainees continued for months and years, resulting in untold pain, suffering, and tragedy for the detainees for whom they were medically responsible,'" Judge David Tatel wrote for the court.

The judges also noted that the government's own description of the protocol helped shape their concerns about the practice.

Still, "this is a court of law, not an arbiter of medical ethics," Tatel wrote.

The ruling also emphasizes the "legitimate penological interests" of keeping Guantanamo inmates alive in light of the Supreme Court's decision Turner v. Safley.

Writing in dissent, Judge Stephen Williams disagreed that the objections to force-feeding could come in the form of a habeas action.

"Although we once toyed with that idea (in dictum), we have never held habeas to reach a prisoner's conditions of confinement," Williams wrote. "And the majority provides no persuasive reason why we should reach that decision for the first time today."

American University Washington College of Law professor Steve Vladek issued a statement calling the decision "perhaps the most significant victory for the detainees in any post-Boumediene D.C. Circuit habeas case."

Boumediene v. Bush afforded Guantanamo detainees the basic right to seek habeas relief in June 2008, but the justices have not decided another detainee case since.

Aamer's attorney Jon Eisenberg wrote in an email that his next steps depend upon whether President Barack Obama's administration challenges the ruling though an en banc rehearing or petition for certiorari to the U.S. Supreme Court.

"I think the majority is sending a message to the Obama folks that the court is reluctant to take action but is prepared to do so if the mess at Guantanamo festers much longer without a major breakthrough," Eisenberg said.

Either way, Eisenberg's legal team is "gearing up" for a return to District Court, he said.

The Pentagon declined to comment because the decision means the litigation continues to be pending.

At its height, more than 100 detainees reportedly participated in hunger strikes at Guantanamo, but that number dwindled until the Pentagon stopped providing press with the statistics on the issue in December.

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