Federal judges weigh challenge to force-feeding

By Frederic J. Frommer

Associated Press

WASHINGTON (AP) -- A U.S. appeals court panel last Friday wrestled with a challenge to force-feeding hunger strikers at Guantanamo Bay, with a lawyer for the detainees acknowledging he was seeking a ruling "that may lead to death."

But the attorney, Jon Eisenberg, told the three judges hearing the case that the authorities at the U.S. Naval base in Cuba are force-feeding detainees before their lives are at risk.

"And then what?" Judge David Tatel asked pointedly. "Then force-feed them?"

"Good question," Eisenberg replied.

"If the court were to look for some kind of middle ground, I'd be OK with that," said Eisenberg, referring to force-feeding detainees who are on the verge of death. He said after the hearing that wouldn't be his preference, but that it would be better than the current situation.

According to Guantanamo officials, all 15 men who are still participating in a hunger strike to protest their indefinite detention are approved for force-feeding. That means that they are sometimes force-fed, but it can vary from meal to meal, depending on the circumstances. Detainees who are fed this way are strapped down and fed a liquid nutrient mix through a nasal tube to prevent them from starving to death.

Although it did not come up at the hearing, Eisenberg in one of his briefs noted that that a federal appeals court in the state of California recently upheld that state's ban on force-feeding of ducks and geese to produce foie gras, a practice the state Legislature had concluded was cruel.

"The irony of protecting ducks and geese from a practice that is inflicted on human beings at Guantanamo Bay speaks volumes," he wrote.

Two lower court judges have turned down challenges to force-feeding the detainees, both ruling that they didn't have jurisdiction in the case. One of the judges, Rosemary M. Collyer, said there was "nothing so shocking or inhumane in the treatment" that would raise a constitutional concern. But the other judge, Gladys Kessler, called force-feeding a "painful, humiliating and degrading process."

Kessler challenged President Barack Obama on the matter, writing, "The president of the United States, as commander in chief, has the authority -- and power -- to directly address the issue of force-feeding of the detainees at Guantanamo Bay."

At last Friday's hearing, Justice Department lawyer Daniel Lenerz said force-feeding is only done to maintain a detainee's health and life. He also said that judges must give deference to the professional judgment of prison administrators. But Judge Thomas Griffith, an appointee of Republican President George W. Bush, challenged that. "That's the end of the inquiry?" he asked.

Griffith said that such deference is given in a normal prison, where judges know what's happening inside, but that's not the case at Guantanamo.

Lenerz responded that "even more deference" should be given to the running of the prison at Guantanamo.

Lenerz also argued that courts don't have jurisdiction to hear challenges to the conditions at Guantanamo, but Tatel, an appointee of Democratic President Bill Clinton, repeatedly challenged him on that point.

The case attracted a standing-room only crowd, including several people who later participated in a protest on the courthouse steps. At the protest, which included members of groups such as Witness Against Torture and Code Pink, some people wore orange prison jumpsuits and black hoods. Andres Thomas Conteris, an activist who organizers said was on day 103 of a water-only fast, was force-fed though his nose, yelling out, "Every swallow is torture! I feel like vomiting! Please, President Obama, stop force-feeding now!"

Asked about force-feeding at a news conference in April, Obama said, "I don't want these individuals to die."

Published: Tue, Oct 22, 2013