Dianne Feinstein Suggests President Obama Personally Violating Our Treaty Obligations

As I noted the other day, in her ruling that she could not halt the force-feeding at Gitmo, Gladys Kessler described the treatment as “degrading,” potentially invoking our obligations under Article 16 of the Convention again Torture to prevent degrading treatment. Kessler actually explicitly invoked International Covenant on Civil and Political Rights, which includes a similar prohibition on degrading treatment.

Dianne Feinstein and Dick Durbin sent Obama a letter yesterday, using Kessler’s ruling to connect the two explicitly.

U.S. District Court for the District of Columbia Judge Gladys Kessler also expressed concern about the force-feeding of Guantanamo Bay detainees. The Court denied detainee Jihad Dhiab’s motion for a preliminary injunction to stop force-feeding due to lack of jurisdiction, but in her order, Judge Kessler noted that Dhiab has set out in great detail in his court filings “what appears to be a consensus that force-feeding of prisoners violates Article 7 of the International Covenant on Civil and Political Rights (ICCPR) which prohibits torture or cruel, inhumane, and degrading treatment.” The United States has ratified the ICCPR and is obligated to comply with its provisions. Judge Kessler also wrote, “it is perfectly clear from the statements of detainees, as well as the statements from the [medical] organizations just cited, that force-feeding is a painful, humiliating, and degrading process.” (emphasis added).

The judge concluded by correctly pointing out that you, as Commander in Chief, have the authority to intercede on behalf of Dhiab, and other similarly-situated detainees at Guantanamo. The court wrote: “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.”

Feinstein only by association makes the next part of her argument. We comply with these treaties by complying with our Eighth Amendment prohibition on cruel or unusual punishment. And the government has long said that if we can do something elsewhere in a our gulag system, we can do it in Gitmo.

In a letter to Chuck Hagel last month — which Feinstein noted in yesterday’s letter but did not quote from — she laid out how our force-feeding at Gitmo differs from that used in the Bureau of Prisons.

In addition to the allegation that the Department of Defense’s force-feeding practices are out of sync with international norms, they also appear to deviate significantly from U.S. Bureau of Prison practices. Based on a review by Intelligence Committee staff, the significant differences between force-feedings at Guantanamo Bay and within the U.S. Bureau of Prisons relate to the manner in which the detainees are force-fed, how often detainees are force-fed, and the safeguards and oversight in place during force-feedings.

Within the Bureau of Prisons, force-feeding is exceedingly rare. The Intelligence Committee staff has been told that no inmate within the Bureau of Prisons has been force-fed in more than six months. When force-feedings do occur within the Bureau of Prisons, we have been told that nearly 95% of the time they are conducted with a fully compliant inmate requiring no restraints. At Guantanamo Bay, on the other hand, all detainees being force-fed–regardless of their level of cooperation–are placed in chairs where they are forcibly restrained. The visual impression is one of restraint: of arms, legs, and body. Further, at Guantanamo Bay, detainees are fed twice a day in this manner, potentially over a substantial period of time. This also is inconsistent with the practice of the U.S. Bureau of Prisons.

Additionally, the U.S. federal prison guidelines for force-feedings include several safeguards and oversight mechanisms that are not in place at Guantanamo Bay. These guidelines require the warden to notify a sentencing judge of the involuntary feeding, with background and an explanation of the reasons for involuntary feeding. Further, the Bureau of Prisons requires an individualized assessment of an inmate’s situation to guide how force-feedings are administered, a practice that I found largely absent at Guantanamo Bay. Finally, all force-feedings must be videotaped within the Bureau of Prisons.

It’s almost as if DiFi knows or suspects there’s an OLC memo that — parallel to the ones that found torture to be legal because it vaguely resembled practices elsewhere (as when they noted that members of the military undergo SERE training, so reverse-engineered SERE techniques used in different situations were legal) — finds our force-feeding at Gitmo to be legal because judges have approved the way we force-feed people in federal prisons. In any case, Gitmo officials have said their treatment is similar with BOP treatment.

Between these two letters, she has laid out why that is not the case. Indeed, that’s the import of Kessler’s language, a federal judge finding the treatment we use in Gitmo to violate our obligations under ICCPR.

Say what you will about DiFi (lord knows I’ve often said the same, where I thought it appropriate), but she has just told a President from her own party that he’s breaking the law.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

10 replies
  1. harpie says:

    It’s almost as if DiFi knows or suspects there’s an OLC memo that — parallel to the ones that found torture to be legal because it vaguely resembled practices elsewhere (as when they noted that members of the military undergo SERE training, so reverse-engineered SERE techniques used in different situations were legal) — finds our force-feeding at Gitmo to be legal because judges have approved the way we force-feed people in federal prisons.

    Great insight, Marcy…it sure does.

    In any case, Gitmo officials have said their treatment is similar with BOP treatment.

    One thing that I think gets lost sometimes is that [hopefully] all of the prisoners under BOP jurisdiction [correct word?] have at least undergone some sort of judicial process and have been found guilty of…something, according to the rule of law.

    And yeah, KUDOS [when kudos are due] to DiFi!

    O/T: Marcy, have you seen this:
    AP Exclusive: The CIA and a secret vacuum cleaner

    […] By the CIA’s own account, the program’s methods were “designed to psychologically ‘dislocate'” people. But once interrogations stopped, the agency had to try to undo the psychological damage inflicted on the detainees. […]

  2. harpie says:

    Feinstein/Durbin:

    We write to urge you to use your Presidential authority to end the unnecessary force-feedings of detainees at the Guantanamo Bay detention facility. […]

    Won’t they just respond that there are no “unnecessary force-feedings of detainees” at GTMO?

  3. Jonathan says:

    When does a corrupt boss like DINOFi ever advance truth and justice? When it’s a play for even more misdirection and privilege. harpie might be on to something — perhaps DiFi is simply playing the foil for Obama to utter the right sophist noises, and Durbin… well, from his previous comments on the directionality of Wall Street oversight he knows how the bread is buttered and it remains to ask whether he’s quite settled with that or not.

    Or, perhaps this is just a threat to get something.

    It should be well-understood by now that DiFi has no intention of effectively diminishing the privileges of the aristocracy and her tenure is of no benefit whatsoever to the median citizen. I suggest that kudos for a scripted heel-face turn would be out of order.

  4. Garrett says:

    @harpie:

    Tea and cookies were served.

    They’ve always highlighted the nice menu at Guantanamo.

    THIESSEN: I understand from the, I had the similar briefing [from Gitmo authorities] that actually most of the medical people told me that most of the people who receive the force-feeding were actually very happy to receive the force-feeding and didn’t resist and they were even given their choice of which flavor of liquid Ensure because there’s actually a smell even though they don’t taste it, there’s reflux and they actually have a smell and they choose strawberry or chocolate or vanilla or the rest. And they’re actually very pleased to be getting it because it absolves them of their responsibility to participate but they’re also getting the nutrition they want.

    Washington Post Columnist Says Guantanamo Hunger Strikers Are ‘Very Happy’ To Be Force-Fed

    Currently strawberry, chocolate, or vanilla. Reflux of their choice.

  5. john francis lee says:

    As Coleen Rawley points out this ‘following bad legal advice’ ploy began, in this iteration anyway, with Bybee, Yoo and fellow stooges in the Bush administration and was admired by and seamlessly adopted by Barack the Constitutional Law Lecturer Obama.

    It’s standard mafia operating procedure according to Rawley, who worked for the FBI for twenty-four years and became familiar with it in the course of career. Listen to what she said on the subject to Glen Ford at Black Agenda Report.

    Obama’s DOJ are just a bunch of Mob lawyers.

    All the more reason to sweep up the White House, the NSA, the FISA court, the ‘overlook’ committees in the House and the Senate, and Obama’s DOJ in a RICO prosecution.

    They have conspired the commit fraud, and to obstruct justice at the very highest level. They have made ‘the law’ their first bulwark in defense of injustice.

  6. lefty665 says:

    Sort of like Himmler telling Hitler that the freight cars to Dachau needed a fresh coat of paint.

  7. Teddy says:

    Bet you dollars to donuts Mr Richard Blum has a better force-feeding mousetrap he’d like to sell the Gitmo commandant.

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