US says it is not bound by global rules on GITMO forced-feeding

Updated
The internment center in Guantanamo Bay, Cuba.
The internment center in Guantanamo Bay, Cuba.
John Moore/Getty Images, File

One of the things I intend to do as president is restore America’s standing in the world. We are less respected now than we were eight years ago or even four years ago, and this is the greatest country on earth… We’re going to have a lot of work to do in the next administration to restore that sense that America is a shining beacon on a hill.  Presidential candidate Barack Obama, 2008

Few themes in President Obama’s first election campaign were as rousing as the promise to end the Bush administration’s contempt for international human-rights conventions. America’s moral standing had plummeted in 26 of the 33 countries the Pew Research Center surveyed between 2002 and 2007. “In the view of much of the world,” the center noted in 2008, “the United States has played the role of bully in the school yard, throwing its weight around with little regard for others’ interests.”

Candidate Obama promised relief from nearly a decade of international shame. But his administration’s current practices at the Guantánamo Bay prison camp are hard to square with his pledge to restore our standing as citizens of a global community.

To be fair, the president inherited the Guantánamo internment center, and Congress has blocked his efforts to close it—even though 86 of the 166 detainees have been cleared for release and others have never been charged of any wrongdoing.

In desperation, more than 100 of the prisoners are now refusing food to protest their confinement. But rather than address their grievances, the U.S. military is now shackling the hunger strikers to chairs to force sustenance into their stomachs through their noses.

According to a longstanding international consensus, the force-feeding of competent prisoners constitutes cruel, inhuman and degrading treatment, if not outright torture. The World Medical Association has unequivocally condemned the practice—as have United Nations agencies, the American Medical Association and a broad coalition of health and human-rights organizations.

So how, exactly, does President Obama justify the practice? How does he reconcile his administration’s policies with international law, his past promises and his own values?

The White House rationale for force-feeding

When questioned about force-feeding at a recent press conference, he had only seven words to offer: “I don’t want these individuals to die.” Now, in response to a query from msnbc, the administration has elaborated slightly, but its answer may raise more issues than it resolves. Here is what a senior administration official told us:

The World Medical Association is a private organization; its pronouncements do not create legal requirements for States. There is no international law requirement to allow detainees to starve themselves or harm themselves. [Defense Department] policy on hunger strikes is similar to the policy of the U.S. Bureau of Prisons, which has been repeatedly upheld by U.S. Courts.

Both of those assertions—domestic prisons do it, and international standards don’t apply—merit some scrutiny. So let’s take them one at a time, starting with the one about domestic prisons and U.S. courts.

Domestic prisons do it

The U.S. Constitution clearly protects most of us against unwanted bodily invasion. The Supreme Court affirmed every American’s right to refuse food or medical treatment in its 1990 Nancy Cruzan decision and has since upheld it repeatedly. As Boston University bioethicist George Annas wrote in 2005, “This issue is not controversial as a matter of constitutional law: Americans have (and have always had) the legal right to refuse any medical intervention, including artificially delivered fluids and nutrition.”

Yet, as the administration points out, domestic prisons have long used force-feeding to break hunger strikes—and courts in more than a dozen states have condoned the practice. As Connecticut’s supreme court noted last year in authorizing the state to forcibly intubate hunger striker William Coleman, “Restrictions on personal liberties that would be considered unacceptable where the general public is concerned are often essential within the strictures of the prison community.”

The Supreme Court legitimized that claim in 1987, ruling in a case called Turner v. Saffley that prison wardens can curtail inmates’ constitutional rights, but only as needed to achieve “legitimate penological objectives.” Since then, prisons have argued successfully that forced feeding, though normally unconstitutional, is “essential” during hunger strikes because it helps prevent suicide and maintain order.

So yes, U.S. courts have authorized some domestic prisons to force-feed inmates. And yes, the U.S. Prisons Bureau has developed a protocol to standardize the practice. The protocol says that “treatment is to be given and documented in accordance with accepted medical practice”—an odd avowal since the “treatment” itself violates accepted medical practice. The document also cautions that none the procedures it outlines “are meant to limit or override the exercise of sound medical judgment by the physician responsible for medical care.”

The administration believes these rulings and protocols are the relevant ones. But there are important differences between a domestic prison and an off-shore internment center. Unlike domestic inmates, the Guantánamo detainees have not been charged, tried, convicted or sentenced in U.S. courts. Most are foreign citizens who were swept up in U.S. military raids because of their suspected ties to al-Qaida. The military is holding them not as criminal suspects but as “enemy combatants”—even though at least 86 are clearly neither.

Would a domestic court agree that a foreign national, held offshore without charges, is legally equivalent to a Connecticut resident convicted of spousal abuse? Stephen Vladeck, a professor of constitutional and national-security law at American University, is skeptical. “The Turner v. Saffley decision is specific to prisoners who have had their day in court, and who therefore have fewer (and weaker) constitutional protections,” he says.  As a legal matter, it’s not clear what rights a Guantánamo detainee enjoys under the U.S. Constitution. But it’s even less clear that the administration can revoke those rights by fiat.

International standards don’t apply

What about the administration’s claims that the pronouncements of international bodies “do not create legal requirements for the States,” and that the U.S. is not obligated to “allow people to starve themselves or harm themselves”?

Both are true in the narrowest sense, but the administration conveniently ignores the substance of those pesky “pronouncements.” The medical profession, the human-rights community and the relevant United Nations agencies all agree that current U.S. practices at Guantánamo Bay—from holding innocent men hostage to force-feeding those who try to protest—violate international human rights law.

They point specifically to Article 3 of the 1949 Geneva Conventions, which bars cruel, humiliating and degrading treatment, and Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. For good measure, Vladeck points to section 1003 of America’s own Detainee Treatment Act, which provides that “no individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.”

During the Bush years, the UN Human Rights Council assigned a team of independent experts to determine whether the Gitmo detainees were being treated humanely. The administration denied their requests to interview the prisoners privately. But from photos, videos and the testimony of witnesses, the experts concluded that the camp’s forced feedings and other practices amounted to torture.

Seven years after reaching that bleak conclusion, the UN representatives are still voicing dismay. In a statement released May 1, they again called on the U.S. government to renounce “forced feeding or other types of physical or psychological coercion against individuals who have voluntarily decided to go on a hunger strike.” They also reiterated their longstanding request to “be allowed to visit the Guantánamo detention center and to hold private, confidential interviews with the detainees as soon as possible.”

A new medical protocol

The Obama administration isn’t budging on either issue. It refused even to release the camp’s current protocol for force-feeding when researchers from the Harvard Humanitarian Institute asked to review it. But Al Jazeera got hold of the protocol independently last week, and published the full text online. Unlike the protocol used by the U.S. Bureau of Prisons, this one says nothing about deferring to the “sound medical judgment by the physician responsible for medical care.” And though it’s based on the Bush administration’s 2005 force-feeding protocol (which the ACLU secured in heavily censored form through the Freedom of Information Act), it is, if anything, harsher.

Under the Bush protocol, the camp’s chief medical officer was the only one authorized to declare someone a hunger striker. The Obama version transfers that authority to the base commander. And whereas the Bush protocol called for “every effort … to allow detainees to remain autonomous” while refusing food, the Obama protocol never uses that word.

The new document does include detailed instructions for masking and shackling a hunger striker, and for denying him any say in the concentration of his feeding fluid or the rate at which it is pumped down his nose. If the detainee begs to speak with a doctor, the nurse is to answer, “I will write a note in your chart for the doctor.” And if he vomits at the end of the ordeal, he must be forced back into the feeding chair.

This, from the administration that promised to “restore that sense that America is a shining beacon on a hill.”

US says it is not bound by global rules on GITMO forced-feeding

Updated