[Pnews] Legitimate Penological Interests? Challenges to the Use of the Water Cure in Guantanamo Bay
Prisoner News
ppnews at freedomarchives.org
Fri Mar 21 11:48:23 EDT 2014
* Legitimate Penological Interests? Challenges to the Use of the Water
Cure in Guantanamo Bay
* March 20, 2014 11:03 AM ET
http://jurist.org/sidebar/2014/03/jon-eisenberg-guantanamo-force-feeding.php
JURIST Guest Columnist Jon B. Eisenberg
<http://horvitzlevy.com/attorneys/bio.cfm?id=47> of Horvitz & Levy, LLP
<http://horvitzlevy.com/> discusses the controversial methods used
against Guantanamo detainees...
------------------------------------------------------------------------
*U*S military personnel at Guantanamo Bay are grievously abusing
hunger-striking detainees, using force-feeding
<http://jurist.org/paperchase/2014/03/guantanamo-detainee-challenges-force-feeding-practices.php>
techniques akin to a medieval form of torture called "pumping" and
colloquially known as the "water cure."
Pumping featured prominently in the Spanish Inquisition and was more
recently used by the Imperial Japanese Army against US soldiers during
World War II. It is inflicted by forcing copious amounts of water down a
person's throat, which causes the stomach and intestines to stretch and
convulse, resulting in some of the most intense pain that visceral
tissues can experience. A victim of the water cure in the year 1620, one
William Lithgow, wrote
<http://archive.org/stream/totalldiscourseo00lithuoft/totalldiscourseo00lithuoft_djvu.txt>
a horrifying personal account of how repeated force-feedings of a
half-gallon of water caused him to "yowl" and "groan" as his stomach
"grew drum-like imbolstred" and the water "reingorged itself in my tiiroat."
At Guantanamo Bay
<http://www.nytimes.com/2006/02/22/international/middleeast/22gitmo.html>,
doctors and nurses have medicalized the water cure, using excessively
thick nasogastric feeding tubes to force as much as two-thirds of a
gallon of fluid into hunger-striking detainees in as little as 20
minutes, while they are tightly strapped to a specially-made restraint
chair. If a detainee vomits during the process---which happens
frequently---it starts all over again. Adding humiliation to the ordeal,
the doctors give the detainee a laxative, which can cause him to
defecate during the process---after which he may be held in the
restraint chair for as long as two hours, sitting in his own filth. When
it's all done, they remove the feeding tube, wait a few hours, and then
do it all over again---twice each day, every day.
Adding further suffering to the process, the Guantanamo Bay personnel
routinely withdraw the feeding tube after each force-feeding and
re-insert it for the next feeding---twice daily---instead of leaving the
tube in place for a month or more at a time, which is the customary
medical practice for long-term nasogastric tube feeding. This is not
only unnecessarily painful, it increases the risk that force-fed fluids
will be misdirected into the lungs and aspirated.
Indeed, a former commanding officer for Guantanamo Bay, General Bantz J.
Craddock, has candidly admitted publicly that the purpose of these
extreme force-feeding techniques is to thwart hunger-striking at
Guantanamo Bay by making it less "convenient" for the detainees.
For the past nine months, I have been working with the human rights
non-profit Reprieve US <http://www.reprieve.org/> to litigate a /habeas
corpus/ action on behalf of Shaker Aamer
<http://www.reprieve.org.uk/cases/shakeraamer/> and three other
hunger-striking Guantanamo Bay detainees, seeking an injunction
<http://jurist.org/paperchase/2014/02/federal-appeals-court-denies-guantanamo-detainees-challenge-to-force-feeding.php>
against their force-feeding. The US Department of Justice has
aggressively opposed the litigation on jurisdictional grounds, arguing
that the federal courts lack /habeas/ jurisdiction over conditions of
confinement at Guantanamo Bay. On February 11, 2014, in Aamer v. Obama
<http://scholar.google.com/scholar_case?q=aamer+v.+obama&hl=en&as_sdt=6,39&case=13515892415451826592&scilh=0>,
the US Court of Appeals for the District of Columbia Circuit resolved
this jurisdictional issue in our favor, allowing us to go forward in the
district court on the merits.
We have a compelling case on the merits. The standard for determining
the legality of the Guantanamo Bay force-feeding practices, set forth in
Turner v. Safley
<http://scholar.google.com/scholar_case?q=turner+v.+safley&hl=en&as_sdt=6,39&case=15686747716085264205&scilh=0>,
is whether they are "reasonably related to legitimate penological
interests." Surely there cannot be a legitimate penological interest in
using excessively-thick feeding tubes, gratuitously withdrawn and
re-inserted from one feeding to the next, to force-feed prisoners at
such an extreme rate as to constitute a medieval form of torture. These
practices are prohibited by universal standards of medical ethics and
international law.
Even the federal Bureau of Prisons <http://www.bop.gov/> eschews
force-feeding of hunger-striking prisoners before they are at risk of
death or great bodily injury. But that's not what happens at Guantanamo
Bay, where hunger-strikers are force-fed prematurely, long before they
are at such risk---not out of medical necessity, but in an effort to
break the detainees' hunger strike. This, too, violates the Turner
standard, which states that the existence of "obvious, easy
alternatives" to a challenged practice may demonstrate that it is an
"exaggerated response" to prison concerns. The obvious, easy alternative
to force-feeding Guantanamo-style is the federal Bureau of Prisons approach.
It remains to be seen whether the US Department of Justice will request
an /en banc/ rehearing in Aamer or seek review in the US Supreme Court.
In the meantime, however, we are going forward in the district court on
behalf of another hunger-striking Guantanamo Bay detainee, Emad Hassan
<http://www.reprieve.org.uk/cases/emad_hassan/>, a 34-year-old Yemeni
who has never been charged or tried yet has been force-fed continuously
since 2007, some 5,000 times. On March 11, 2014, we filed
<http://rt.com/usa/gitmo-historic-case-obama-350/> Hassan v. Obama,
seeking an injunction against abusive and premature force-feeding.
Hassan has been cleared for release from Guantanamo Bay since 2009.
Aamer has been cleared for release even longer---since 2007. Aamer is a
long-time resident of Great Britain, where his wife and four children
still live, and the British government has requested his return. Yet
he---like dozens of other Guantanamo Bay detainees who have been cleared
for release---remains incarcerated in the twilight of indefinite
detention, while President Barack Obama wrings his hands but
inexplicably refuses to send these men home.
Aamer was previously on hunger strike and was force-fed, an experience
he found so painful that he had to give in and resume eating. Two months
ago, however, he felt compelled to resume hunger-striking, and he is
once again on track for force-feeding. He knows what awaits him---the
water cure. Yet he persists. He draws strength from memories of his
favorite music and movies, thoughts of his wife and children, and
solidarity with his brethren at Guantanamo Bay who remain under
indefinite detention by the very government that has determined it is
safe to release them.
It is long past time for the Obama Administration to release Aamer,
Hassan and the dozens of other detainees who have been cleared for
release from Guantanamo Bay---and to forswear the water cure as a
barbarous relic of the Middle Ages.
One of the most moving experiences I've had with a client happened last
month when I visited Aamer in a cell at Guantanamo Bay. He sang for me
Bob Marley's /Redemption Song/, which tells how African slaves were
sustained by "the hand of the Almighty" and "songs of freedom ...
redemption songs." The Guantanamo Bay force-feeding litigation is a
redemption song for Aamer and Hassan. I hope Obama hears it.
/Jon B. Eisenberg, "of counsel" with Horvitz & Levy, has more than three
decades of experience in appellate litigation. He is the principal
author of the leading treatise on California civil appellate practice,
The Rutter Group's "California Practice Guide: Civil Appeals and Writs."
He has argued a dozen cases in the California Supreme Court and some 75
cases in the California Courts of Appeal and the United States Court of
Appeals for the Ninth Circuit. He also teaches appellate procedure at
University of California Hastings College of the Law. Mr. Eisenberg
received his Bachelor of Arts from the University of California at
Irvine and his Juris Doctor from the University of California Hastings
College of the Law. He is a California State Bar Certified Appellate
Specialist, and is a member of the California Academy of Appellate
Lawyers, as well as the American Academy of Appellate Lawyers. /
*Suggested citation:*Jon B. Eisenberg, /Legitimate Penological
Interests? Challenges to the Use of the Water Cure in Guantanamo Bay/,
JURIST - Sidebar, Mar. 20, 2014,
http://jurist.org/sidebar/2014/03/jon-eisenberg-guantanamo-force-feeding.php.
--
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