[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.

-- 
Freedom Archives 522 Valencia Street San Francisco, CA 94110 415 
863.9977 www.freedomarchives.org
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