Judge Kessler to President Obama: Will You Save Gitmo Detainees from “Painful, Humiliating, and Degrading” Treatment?

In my post describing the emergency suit to stop force-feeding at Gitmo before Ramadan, I suggested it might be unlikely for the DC District Court judges to accept a challenge about prison conditions. That is exactly what happened: Judge Gladys Kessler rejected the request on jurisdictional grounds.

But along the way, she made it clear she doesn’t buy government claims that force-feeding people is really the best medical care.

Despite the statements contained in the Declaration submitted by the Government in support of its Opposition to the Application claiming that “[t]he health care provided to the detainees being held at JTF-GTMO rivals that provided in any community in the United States and is comparable to that afforded to our active duty service members. Detainees receive timely, compassionate, quality healthcare and have regular access to primary care and specialist physicians,” it is perfectly clear from the statements of detainees, as well as the statements from the organizations just cited, that force-feeding is a painful, humiliating, and degrading process. [my emphasis]

At which point she made clear who really bears responsibility for this continued treatment.

Even though this Court is obligated to dismiss the Application for lack of jurisdiction, and therefore lacks any authority to rule on Petitioner’s request, there is an individual who does have the authority to address the issue. In a speech on May 23,2013, President Barack Obama stated “Look at the current situation, where we are force-feeding detainees who are holding a hunger strike. . . Is that who we are? Is that something that our founders foresaw? Is that the America we want to leave to our children? Our sense of justice is stronger than that.” Text of President Obama’s May 23 Speech on National Security (Full Transcript), Wash. Post, May 23, 2013, available at 2013 WLNR 12700673.

Article II, Section 2 of the Constitution provides that “[t]he President shall be the Commander in Chief of the Army and Navy of the United States … ” It would seem to follow, therefore, that 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. [my emphasis]

Kessler’s use of the term “degrading” is particularly notable. Article 16 of the Convention Against Torture reads, in part,

Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture

A federal judge has just determined that force-feeding Gitmo detainees amounts to degrading treatment.

Will the President act to end this degrading treatment, or will he publicly fail to meet our obligations under the Convention Against Torture?

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

6 replies
  1. HotFlash says:

    “Judge Kessler to President Obama: Will You Save Gitmo Detainees from “Painful, Humiliating, and Degrading” Treatment?”

    President Obama to Judge Kessler: Say what?

    I got a family reunion coming up in Aug in your old stomping grounds (nr Ann Arbor), but I won’t go this yr. Went back to MI last yr for a rellie’s big b’day (90!!!) but probably won’t ever be back again. So sad, how did we lose it? MI used to be so fierce. What happened?

    Americans used to be for fair play. What happened?

  2. Garrett says:

    Will the President act to end this degrading treatment, or will he publicly fail to meet our obligations under the Convention Against Torture?

    He gave a speech, where he nearly said he felt bad about it.

    That’s enough to meet the international obligations. Right?

  3. orionATL says:

    wow!

    looks like some of “we” are getting tired of president mallard’s avoidance of leadership and responsibility.

    recall, it took a united nations special raporteur to get involved before president mallard noticed that bradley manning was being brutalized and treated degradingly at the quantico marine base.

  4. earlofhuntingdon says:

    @HotFlash: Individual Americans still care a lot about fair play. As the song says, Iowans will give each other the shirt off their backs, even if they never see eye-to-eye. It’s what makes local societies, towns, schools, small businesses, neighborhoods, families work.

    Governments, like corporations and the top echelons of professionals that court them both, attract an inordinately large number and percentage of predators. The cuckoos take over the nest, toss their brethren to the ground, and exhaust momma bird.

    The counterweights to the dominance of predators are openness, public accountability, elections, and built-in conflicts over who has power to do what. Just as companies eschew [mythic] competition in favor of monopoly, governmental predators abhor constraints on their power and erode them, like water overflowing the earthen dam above Johnstown.

  5. HotFlash says:

    @earlofhuntingdon: I hear you, EoH. My (Reagan-voting, MacDonald’s-working) sister and her (anti-abortion-promoting, college-attending, can’t-get-insurance diabetic) daughter are now thinking that the economy is collapsing *on them* and further, that it *might not their fault*. (After all, they are white.)

    Like many US-ians, they would do without (jobs, medical coverage, education, school lunches, etc.) lest Brown or (heaven forefend@!) Black persons might benefit. But things are getting so bad for them that they are rethinking. I can only hope that they are close to figuring out who their enemies really are, and who might be their friends, or at least allies.

  6. rsmatesic says:

    Kessler is no hero. She cites to her 2009 opinion in Al-Adahi, in which she, like other district judges before her, refused to explain how congress could somehow prohibit a federal court–i.e., a co-equal branch of government–from hearing a habeas corpus claim on behalf of a party who had no practical remedy apart from the exercise of a judicial power that dated to the Magna Carta.

    How dare she pretend that Obama might be guilt tripped by an entity that has more often than not caved to the whims of the Executive and Legislative branches.

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