Guantánamo Prisoner Force-Fed Since 2007 Launches Historic Legal Challenge

The Yemeni prisoner Emad Hassan, cleared for release from Guantánamo since 2009, who has been on a hunger strike since 2007. The photo is taken from the classified military files released by WikiLeaks in April 2011.

By Andy Worthington, March 11, 2014

Last month, the court of appeals in Washington D.C. (the D.C. Circuit Court) delivered an important ruling regarding Guantánamo prisoners' right to challenge their force-feeding, and, more generally, other aspects of their detention. The force-feeding is the authorities' response to prisoners undertaking long-term hunger strikes -- or, as Jason Leopold discovered today through a FOIA request, what is now being referred to by the authorities as "long-term non-religious fasts."

The court overturned rulings in the District Court last summer, in which two judges -- one reluctantly, one less so -- turned down the prisoners' request for them to stop their force-feeding because of a precedent relating to Guantánamo, dating back to 2009.

As Dorothy J. Samuels explained in a column in the New York Times today, revisiting that ruling:

In 2009, the United States Court of Appeals for the District of Columbia badly undermined the rule of law by dismissing a civil case brought by former Guantánamo detainees never charged with any offense while in custody. That decision (which the Supreme Court declined to review) largely echoed the Obama administration’s arguments that former Secretary of Defense Donald Rumsfeld and other senior military officers could not be held responsible for violating the plaintiffs’ rights because the ill-treatment fell within the scope of their employment, and that it was not yet "clearly established" during the 2002-2004 period covered by the case that torture was illegal.

Highlighting the absurdity of that ruling, Samuels added:

Not only were the plaintiffs … never charged with any wrongdoing while in custody, but some of them were found by the government’s then-operative review process not to be enemy combatants. How could the abusive treatment of those individuals, including use of solitary confinement, sleep deprivation, exposure to cold, shackling, and mocking of religious practices, be considered within the scope of government employment? The simple answer is that it can’t, notwithstanding the government’s best efforts to make the whole problem go away.

As a result of last month's appeals court ruling, a Yemeni prisoner, Emad Hassan (who I wrote about recently here), launched a historic legal challenge today (March 11), becoming "the first Guantánamo Bay prisoner to have his claims of abuse at the military base considered by a U.S. court of law," as his lawyers at Reprieve put it.

Described, accurately, as being "gravely ill," Emad Hassan, who was cleared for release in 2009 by President Obama's high-level, inter-agency Guantánamo Review Task Force but is still held (like 75 other men cleared for release by the task force), "has been abusively force-fed more than 5,000 times since 2007 as part of the military’s efforts to break his hunger strike," as Reprieve also described it, and "suffers from serious internal injuries as a result."

As Reprieve also described it, the case, Hassan v. Obama, "highlights the increasing brutality of the Guantánamo Bay force-feeding process, which the military has amended step-by-step to make it so painful that only the most courageous peaceful protester can continue. It will be the first case requiring a U.S. judge to review a Guantánamo prisoner’s detailed testimony describing his treatment -- and will force the military to respond."

With the support of two experts -- the psychiatrist Stephen Xenakis, a retired Brigadier General and Army medical corps officer with 28 years of active service, and Steven Miles, Professor of Medicine at the University of Minnesota Medical School -- Hassan’s legal team argue that the force-feeding practices at Guantánamo "amount to torture," explaining that, for example, "the speed at which liquid is forced into some prisoners is a form of water torture that is similar to water-boarding." The lawyers cite "clear evidence that the military practices and protocols have been deliberately altered to cause gratuitous pain and suffering in an effort to coerce the prisoners to renounce their peaceful protest."

In a recent statement, Emad Hassan said, "All I want is what President Obama promised -- my liberty, and fair treatment for others. I have been cleared for five years, and I have been force-fed for seven years. This is not a life worth living, it is a life of constant pain and suffering. While I do not want to die, it is surely my right to protest peacefully without being degraded and abused every day."

Jon B. Eisenberg, counsel for Emad Hassan in the U.S., said, "After 12 years of wrongful imprisonment, Emad and his fellow-hunger strikers are protesting peacefully in the only way they can. The punishment inflicted on these desperate men is nothing short of torture, and it is about time that it is brought to light and judged by a court of law."

Eric Lewis, a partner at Lewis Baach PLLC and the chair of the newly-established Reprieve U.S., said, "This case marks an historic step in the long battle to bring basic rights to the legal black hole at Guantánamo Bay. For over a decade, abused prisoners at the U.S. military base have been denied any effective legal mechanism to challenge their treatment. This case calls upon U.S. judges to restore the most basic rights, medical standards and human dignity to these men at Guantánamo Bay."

In a report for Al-Jazeera America, the journalist Massoud Hayoun spoke to Clive Stafford Smith, the founder and director of Reprieve, who told him, "This is the first time that any court will compare what the prisoners are saying about the torturous methods with what the military is saying."

In a declaration accompanying the court submission, Stafford Smith stated how, in a meeting at Guantánamo last month, Hassan spoke about how, in early 2006, the authorities described the restraint chairs brought to Guantánamo to break the prison-wide hunger strike that had been raging from the summer of 2005 onwards as the "torture chairs." He described being force-fed through large tubes, which were shoved into and pulled out of his nostrils before and after each feeding.

Alarmingly, as Stafford Smith also explained:

[O]n the Torture Chair the men were also given an anti-constipation drug which would cause ether to defecate on themselves while still being fed. They were not given clean clothes. Mr. Hassan says he finds it difficult to talk about this even today, several years later. "I could not think someone who called himself human did this to me," he said to me on February 5, 2014.

Emad Hassan's first hunger strike lasted from June 2005 February 2006, and he began hunger striking again in 2007, a process that has continued unbroken since that time. As Stafford Smith described it, he "has suffered with chronic pancreatitis and multiple hospitalizations stemming from the force feeding techniques." He added that "his illness has included attacks brought on by the use of the nutritional supplement Jevity, which contains high levels of fat -- a trigger for pancreatitis."

Hassan also told his lawyer that "the doctors at Guantánamo do not protect his health or interests," and that their "only object appears to be to find ways to make the detainees bend to the military's will." He added, "They systematically make the force feeding process gratuitously painful, by forcing the liquid down the men's noses faster, by speeding up the flow of liquid, by using a bigger tube, and by pulling the 110 centimetre tube out of his nostril after every feed and then forcing it back in."

Hassan also told Stafford Smith that, in response to nausea brought on by the forced feeding process, the authorities forced him -- and other hunger strikers -- to take Reglan, a drug that he said "made him feel crazy." In the Standard Operating Procedure for dealing with hunger strikers, which was obtained last year through FOIA legislation by Jason Leopold for Al-Jazeera, the use of Reglan was recommended during force-feeding, even though, as Reprieve explained in a press release to accompany the submission of the first legal challenge to the force-feeding last June, "Medical studies into the drug have determined that prolonged use of Reglan also is linked to a high rate of tardive dyskinesia (TD), a potentially irreversible and disfiguring disorder characterized by involuntary movements of the face, tongue, or extremities."

While medicated on Reglan, Stafford Smith wrote, Hassan "would sit on his bed, legs folded, thinking that he was talking to the nurse, but he actually found that he was talking to himself."

Stafford Smith also noted that the last time he met Hassan, who is 5 feet 3 inches tall and weighed 119 pounds before his capture, he weighed just 85 pounds and was in “very bad” health. This was also his weight in December 2005, as I explained in 2009 in a report based on an analysis of height and weight records, and it is, of course, an alarmingly low body weight for a full-grown man. If a photo was available, Emad Hassan would resemble one of the survivors of the Holocaust.

In the submission to the court, Emad Hassan's legal term explained that their client "wishes to make clear that he is not seeking an injunction to permit him to continue his hunger strike until death. Rather, he is seeking a constitutional protocol that ensures he is not force-fed prematurely and is not subjected to methods of force-feeding that cause unnecessary pain and suffering."

Because this is a a preliminary injunction, it "puts time schedules in place that are quite short -- around 20 days normally," Stafford Smith told Al-Jazeera, meaning that a decision may be made by the end of the month. In the meantime, the force-feeding of Emad Hassan, and the 17 other hunger strikers currently being force-fed, continues, even though, as Clive Stafford Smith accurately described it, the prison at Guantánamo Bay has become a "festering wound of human rights violations."

I hope the judges recognize this, and act accordingly.