Can Guantanamo detainees challenge confinement conditions?

McClatchy Washington BureauOctober 18, 2013 

— Force-feeding of Guantanamo Bay detainees confronted federal judges Friday with complicated questions including how far judicial review can stretch for hunger strikers.

In a case closely watched by inmate advocates nationwide, a three-judge appellate panel pushed back against an Obama administration claim that courts are powerless to review the complaints of Guantanamo detainees who refuse to eat as a form of protest. But the judges also puzzled over whether they have the legal authority to consider such cases.“This is a unique situation,” Judge Thomas Griffith said, adding that “Guantanamo is a different sort of prison.”

The 45-minute oral argument Friday before the U.S. Court of Appeals for the District of Columbia Circuit marked the latest, and potentially most significant, in a series of legal challenges to force-feeding. Prison authorities in California and other states, as well as the federal authorities at Guantanamo, support the tactic when faced with inmates on extended hunger strikes.

In August, a San Francisco-based federal judge approved plans to force-feed California inmates, if necessary, who were taking part in a long hunger strike to protest solitary confinement conditions. The appellate judges on Friday cited the California developments several times, though the Guantanamo circumstances aren’t strictly comparable.

Guantanamo “is a facility in which even more deference should be accorded (the government), given the nature of the detainees,” Justice Department attorney Daniel J. Lenerz told the court Friday.

Guantanamo is also a facility that Congress has tried, in several ways, to put beyond the traditional reach of U.S. courts. During Friday’s oral arguments, held before a standing-room-only audience, judges seemed at least a little uncomfortable with that legal isolation.

“Does the government always prevail . . . by saying, ‘It’s obvious to us that hunger strikes have a corrosive effect on inmate morale?’” a skeptical-sounding Griffith asked, further questioning whether the government’s assertion is really “the end of the inquiry.”

In a prior case, the Supreme Court ruled that Guantanamo detainees enjoy the constitutionally protected right to file a habeas corpus petition challenging their detention. On Friday, Judge David Tatel noted that the high court left open the scope of that right. In particular, the question is whether it entails an ability to challenge the conditions of confinement.

“Isn’t the core question whether the condition that’s being complained of is unconstitutional?” Tatel added.

The court spent almost no time Friday discussing an auxiliary argument that the force-feeding – blandly called “enteral feeding” by Lenerz – violated the detainees’ religious rights. Judges also avoided the details of the painful feeding process, as they focused on the technical but essential gateway question of whether the case can be heard.

The Military Commissions Act of 2006 says “no court, justice or judge shall have jurisdiction” to consider legal actions concerning the treatment or “conditions of confinement” of those who “have been properly detained as an enemy combatant.” Two federal judges in July said the law prevented them from issuing preliminary injunctions to stop the Guantanamo force-feeding.

At the same time, one of the judges – U.S. District Judge Gladys Kessler – used her July 8 decision to denounce the practice she said she was powerless to stop.

“It is perfectly clear . . . that force-feeding is a painful, humiliating and degrading process,” Kessler wrote, adding that the detainees “set out in great details in (their) papers what appears to be a consensus that force-feeding of prisoners violates Article 7 of the International Covenant on Civil and Political Rights, which prohibits torture or cruel, inhumane and degrading treatment.”

Guantanamo detainees began a broad-based hunger strike in about March, protesting conditions that included intrusive searches and indefinite detention. At the hunger strike’s peak earlier this year, U.S. military authorities declared that 106 of Guantanamo’s detainees were participating, with 46 designated for force-feeding. There are currently 164 detainees, and the number of those on a hunger strike has sharply fallen.

During force-feeding, the detainee is restrained while a two-foot long feeding tube is passed via the nasal passage into the stomach. The tube is secured to the nose with tape, and liquid nutrients are pumped in over a period of about 20 to 30 minutes.

The specific challenge considered Thursday is being pressed by three detainees, each of whom has been cleared for release but nonetheless remain confined.

“Force-feeding is unethical, it’s inhumane (and) it’s a violation of international law,” Oakland, Calif.-based attorney Jon B. Eisenberg, representing the detainees, told the court. He added that “these are unlawful conditions of confinement, these are unlawful restraints . . . (but) the threshold question is, does this court have jurisdiction?”

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10

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