Status Quo for Gitmo Force-Feedings Resumes

(CN) - The force-feeding of a Guantanamo Bay captive resumed over the Memorial Day weekend after a federal judge rescinded her order blocking the practice, lawyers for the detainee confirmed.

Syrian-born Mohammed Abu Wa'el Dhiab aka Jihad Dhiab has been detained at the U.S. military prison in Cuba for 12 years, and his continued detention is indefinite even though he was cleared for release in 2009.

"We don't yet know how the military has been handling Mr. Dhiab's force-feeding since Judge Kessler's May 22 order," Dhiab's lawyer Jon Eisenberg of the Oakland-based firm Horvitz & Levy LLP said in an email. "He was force-fed over the holiday weekend, but we have not yet been able to obtain detailed information about it. We haven't spoken with Mr. Dhiab since last Thursday, and are trying to arrange another phone call with him for this coming Thursday."

At one point Dhiab was among the more than 100 detainees refusing food in protest of their confinement, but the Pentagon stopped disclosing statistics of the hunger strikers' ranks in December. Officials have justified force-feeding these prisoners through nasogastric tubes as necessary for their survival, and federal courts typically have upheld that policy.

U.S. District Judge Gladys Kessler bucked that trend earlier this month with a short-lived temporary restraining order that prevented Guantanamo staff from performing a "forcible cell extraction," or FCE, on Dhiab, or force-feeding him until the parties met again in court again.

During that hearing last week, Kessler reportedly forced the Pentagon to disclose videos of Dhiab's feedings. She later blasted the military for its "intransigence" but concluded that she "simply cannot let Mr. Dhiab die," in a three-page written order declining to extend the restraining order.

Issued on Friday, the substance of that order is excerpted below:

"Mr. Dhiab's physical condition was swiftly deteriorating, in large part because he was refusing food and/or water.

"Mr. Dhiab has indicated his willingness to be enterally fed, if it could be done at the hospital in Guantánamo Bay, if he could be spared the agony of having the feeding tubes inserted and removed for each feeding, and if he could be spared the pain and discomfort of the restraint chair.

"If he could have been enterally fed in that manner, it would have then been possible to litigate his plea to enjoin certain practices used in his force feedings in a civilized and legally appropriate manner. The Department of Defense refused to make these compromises.

"The court is now faced with an anguishing Hobson's choice: reissue another Temporary Restraining Order ('TRO') despite the very real probability that Mr. Dhiab will die, because he has indicated a continuing desire to refuse to eat and/or drink liquids, or refuse to issue the TRO and allow the medical personnel on the scene to take the medical actions to keep Mr. Dhiab alive, but at the possible cost of great pain and suffering.

"The court is in no position to make the complex medical decisions necessary to keep Mr. Dhiab alive. 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. However, the court simply cannot let Mr. Dhiab die.

"The court does, however, remind all personnel that they should abide by their own Standard Operating Protocols, and that the standard for enteral feeding is whether Mr. Dhiab is actually facing an 'imminent risk of death or great bodily injury.'"

Pentagon spokesman Lt. Col. Todd Breasseale told the McClatchy newswire: "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."

Before last week's hearing, Dhiab's attorney Cori Crider, with the U.K.-based charity Reprieve, submitted a declaration stating that an Army sergeant threatened to force-feed Dhiab three hours after Kessler briefly forbade it.

The email to Courthouse News by Crider's co-counsel, Eisenberg, indicates that this allegation has been dropped.

"At this point, it is not clear to us whether the Army MP knew of the TRO yet, so we are not pressing that issue," Eisenberg said.

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