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Legitimate Penological Interests? Challenges to the Use of the Water Cure in Guantanamo Bay

JURIST Guest Columnist Jon B. Eisenberg of Horvitz & Levy, LLP discusses the controversial methods used against Guantanamo detainees...

US military personnel at Guantanamo Bay are grievously abusing hunger-striking detainees, using force-feeding 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 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, 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 to litigate a habeas corpus action on behalf of Shaker Aamer and three other hunger-striking Guantanamo Bay detainees, seeking an injunction 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, 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, 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 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, 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 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.

This article was prepared for publication by Alexandra Cabonor, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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