(CN) – After a federal judge refused to accommodate his requests for more comfortable force-feedings, a hunger-striking Guantanamo Bay detainee cleared for release since 2009 appealed to the D.C. Circuit.
Lawyers for Abu Wa’el Dhiab failed to rein in force-feeding altogether in May, and have more recently sought to curb Pentagon procedures that allegedly cause their client unnecessary suffering.
They say military police roughed up Dhiab during Forcible Cell Extractions (FCEs), refused to let him use a wheelchair and used olive oil on the nasal-gastric tube inserted in his nose twice a day, even though experts frown upon using the water-insoluble lubricant for this medical purpose.
Facing a three-day hearing in Washington on the issue last month, the Pentagon agreed to meet the Syrian-born Dhiab halfway on its conditions.
It granted the detainee temporary use of a wheelchair, curbed the use of FCEs and replaced the lubricant used on the tube.
The military would not budge, however, on requests to let Dhiab keep the tubes in place for at least three days and sit in a more relaxed restraint chair.
Dhiab’s lawyers also challenged protocols determining when to conduct force-feedings and wanted medical personnel – rather than other soldiers – to make such decisions.
U.S. District Judge Gladys Kessler found for the government on these issues on Friday.
The 20-page order credits the Pentagon’s argument that letting captives leave nasogastric tubes in their bodies posed a security risk.
Previous adherence to such a policy led to “increased incidences of security incidents and violence, including attacks on the medical staff at Guantanamo Bay,” Kessler noted.
Dhiab’s own expert, Sondra Crosby, acknowledged during a hearing that, “if a detainee was psychotic, combative, suicidal, or generally causing risk to himself or others, removing the tube between feedings would be appropriate and safer,” the order states.
Chiming in on an ongoing controversy, Kessler said: “The government produced highly credible evidence that enteral feeding is rarely painful… Indeed, [Dhiab]’s experts did not disagree.”
Dhiab’s “history of violent and disruptive behavior” cautioned against placing him in a one-point restraint chair rather than a five-pointed one, she said.
“The government states that since April 1, 2014, Mr. Dhiab has engaged in numerous physical assaults, threats of murder, throwing feces and vomit at guards, and physically striking and kicking medical and guard staff,” the order states.
Dhiab complained that the more restrictive restraint chair aggravated his back condition, which medical records showed at times required morphine.
But Kessler said “there is simply no evidence that the government uses the Five Point Restraint Chair – which is used for all hunger-striking detainees – in order to deliberately cause him pain or suffering.”
Kessler did chide the government for waiting as long as it did to make the concessions to Dhiab
“It is very hard to understand why the government refused to give Mr. Dhiab access to the wheelchair and/or crutches that he needed in order to walk to the room for enteral feedings,” Kessler wrote. “Had that simple step been taken, numerous painful and humiliating forced cell extractions could have been avoided. While the government ultimately – but only a short time before the hearing – allowed Mr. Dhiab to use the wheelchair, thereby inducing him to comply with the force-feeding as he had agreed to do, common sense and compassion should have dictated a much earlier result.
“By the same token, the government refused Mr. Dhiab’s request to provide him with an additional mattress,” she continued. “What could more reasonable than providing an additional mattress to a man with back pain so severe that he was given morphine to alleviate it?
“Mr. Dhiab is clearly a very sick, depressed, and desperate man,” she noted. “It is hard for those of us in the Continental United States to fully understand his situation and the atmosphere at Guantanamo Bay. He has been cleared for release since 2009 and one can only hope that that release will take place shortly.”
Also on Friday, Kessler refused to grant the government “a total, unlimited stay” of her order mandating disclosure of the force-feeding videos.
The government wanted to avoid disclosure not only until its appeal had been completed, but also until it decided whether or not to appeal.
Kessler forced the government to make that decision by Dec. 2.
After appealing the decision Monday, Dhiab’s lawyer Jon Eisenberg of Horvitz & Levy predicted that the case will guide affect other hunger strikers at Guantanamo.
“The eventual course of the force-feeding litigation will depend in large measure on the outcome of our appeal from Judge Kessler’s ruling,” Eisenberg said in an email.
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