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Eli Lake Defends the “Rectal Feeding” Consensus in DC

Democrats and Republicans do not agree that waterboarding to capture terrorists was a crime, but many do agree it was a blunder.

That’s the central wisdom offered by Eli Lake, in a piece arguing against a Human Rights Watch report calling on renewed accountability for torture based on the evidence presented in the Senate Torture Report.

It’s a bit of a muddle. Obviously, Lake’s reference to waterboarding invokes the understanding of torture prior to the SSCI Report, which revealed far more than waterboarding, including anal rape masquerading as rectal feeding. If there’s a consensus he’s defending, it’s a consensus about waterboarding and “rectal feeding.”

By the end of his piece, he argues both that his claimed consensus is breaking down, and that it still holds — though here, again, he’s focusing on waterboarding, not the anal rape that’s also at issue.

At the end of the Obama administration, that bipartisan consensus is beginning to erode. In 2008, both the Democratic (Obama) and Republican (Senator John McCain) candidates opposed torture and favored closing Guantanamo. In 2015 Donald Trump has come out enthusiastically for waterboarding, pledging to authorize its use again if elected president. Carly Fiorina has defended waterboarding, saying it yielded valuable intelligence, and Jeb Bush has said he is open to repealing the ban on torture imposed by Obama.

Nonetheless other Republicans have held a firmer line. Both Ted Cruz and Rand Paul voted for the anti-torture amendment this summer. Many progressives hope this bipartisan opposition to torture can hold together after Obama leaves office. But this consensus will break apart if a foreign court prosecutes George W. Bush for a crime Barack Obama has long considered a blunder.

Key to understanding Lake’s call to hold off on investigating the torturers, though, is that “anti-torture amendment” that Cruz and Paul support but Carly and Trump might not. Here’s how HRW describes the amendment — which is a call to adhere to the Army Field Manual — in its report.

On June 16, 2015, the US Senate passed an amendment proposed by senators John McCain and Dianne Feinstein to a defense spending bill (the National Defense Authorization Act for Fiscal Year 2016) that if it becomes law, could codify much of what is in Obama’s executive order 13491.[549] The amendment passed in the Senate by a vote of 78-21.[550] The entire bill was then vetoed by Obama over other issues, but a similar provision remained in the compromised version bill which, as of this writing, was expected to be signed into law by the President.[551] It provides that any individual detained by the US in an armed conflict can only be interrogated in ways outlined by the US Army Field Manual on Intelligence Interrogations. It also requires review and updating of the manual within three years to ensure that it reflects current best practice and complies with all US legal obligations and requires that the International Committee of the Red Cross get “notification of, and prompt” access to, all prisoners held by the US in any armed conflict.[552] It is already clear under US law that torture and other ill-treatment is illegal but this requirement would help to more specifically restrain the physical action certain US interrogators could take.[553] However, it is also impossible to know for sure how future administrations will interpret its obligations under the provisions. Additionally, an exemption for the FBI, the Department of Homeland Security, and other federal “law enforcement entities” was added to the compromised version of the bill.

That is, the amendment actually defers the review of techniques in the AFM to the next Administration, potentially a Cruz or Paul one, and doesn’t apply to the FBI.

As I and–especially–Jeff Kaye have pointed out, however, so long as the AFM has Appendix M in it, it can’t be considered a reliable guard against torture. Here’s part of what Kaye had to say about the watered down form in which the amendment was passed.

In what Democratic Senator Dianne Feinstein called a “minor” change to the National Defense Authorization Act (NDAA), a mandated review of the Army Field Manual (AFM) on interrogation was moved from one year to three years from now.

According to a “Q&A” at Human Rights First last June, the mandated review of the AFM was part of the McCain-Feinstein amendment to the NDAA, and was meant “to ensure that its interrogation approaches are lawful, humane, and based on the most up-to-date science.”

The fact there was any “review” at all was really a response to criticism from the United Nation’s Committee Against Torture, which demanded a review of the AFM’s Appendix M, which has been long criticized as allowing abusive interrogation techniques, including isolation, sleep deprivation, and sensory deprivation.

[snip]

While it is a good thing that waterboarding and other SERE-derived forms of torture are not to be allowed anymore — and they were part of an experimental program in any case — long-standing forms of torture are now protected by law because they are part of the Army Field Manual itself.

[snip]

When the pre-veto version of the NDAA was passed — the version that made the Army Field Manual on interrogation literally the law of the land — all the liberals and human rights groups stood up and applauded. None of them mentioned that only months before the UN had criticized the document for use of abusive techniques, and in particular the use of isolation, and sleep and sensory deprivation noted above. Not one.

So what we have now — what Lake would like to uphold — is a deferral of the issue to a potential Republican Administration. That’s not actually a consensus preventing torture at all .

Along the way to Lake’s conclusion showing any consensus against torture isn’t really a consensus against torture, he does cite to some people — Jack Goldsmith (prior to the report, though I suspect he’d still say the same, even though I’m not sure Americans would be as supportive of “rectal feeding” as of a whitewashed description of waterboarding), Glenn Carle, Raha Wala — who oppose reopening the torture question inside the United States. Yet along the way Lake keeps dodging DOJ’s approach to it.

Part of the problem for Human Rights Watch is that the Justice Department has already investigated cases where CIA officers went beyond the legal guidelines, and ended this probe in 2012 without pursuing prosecutions. Pitter pointed out that the federal prosecutor in this case, John Durham, has acknowledged that there were limitations on the evidence available to his team. Nonetheless, the Justice Department has not taken up the issue again.

DOJ has not taken up the issue again because it has refused to open the Torture Report. DOJ can’t very well consider the additional evidence (on top of talking to victims, which HRW did for its report) in the report so long as it doesn’t open it.

Which actually supports HRW’s point: there’s a conspiracy to cover up this torture, and given that it won’t be investigated here, other countries have an obligation to do so.

I actually think Lake misses a way to make his muddled argument much stronger. For one, I think there might be more consensus, blindly defending the US, if a foreign court started prosecuting the US for torture. If HRW gets its way — and foreign governments investigate torture — you’ll see a lot more agreement that the US shouldn’t have to submit to the review of other countries.

But I actually think the fact the anti-prosecution consensus is now defending anal rape and not just waterboarding is key. If we discussed the anal rape as such — as HRW does — it becomes a lot harder to defend (though there is admittedly far too much public tolerance of rape in criminal prisons in this country, to say nothing of Gitmo, to believe more candid discussion that this was really always about rape would sway the public).

The CIA also used “rectal rehydration” or “rectal feeding” which, as described in the Senate Summary, would amount to sexual assault, on at least five different detainees. The practice, not known to have been authorized by the OLC, involved inserting pureed food or liquid nutrients into the detainee’s rectum through a tube, presumably without his consent.[343]The CIA claims this was a medically necessary procedure and not an “enhanced interrogation technique.”[344] The Senate Summary, however, states the procedure was done “without evidence of medical necessity.”[345] Medical experts report that use of this type of procedure without evidence of medical necessity is “a form of sexual assault masquerading as medical treatment.”[346] At least three other detainees were threatened with “rectal rehydrations.” Allegations of excessive force used on two detainees during rectal exams to do not appear to have been properly investigated.[347] One of those two detainees, Mustafa al-Hawsawi, was later diagnosed with chronic hemorrhoids, an anal fissure, and symptomaticrectal prolapse.[348] Some CIA detainees have also reported having suppositories forced into their anus,[349] and other detainees have reported CIA operatives sticking fingers in their anus.[350]

But once you defend anal rape in the terms CIA and its supporters do — that obviously bogus claim that it served as feeding or rehydration — you quickly get to an ongoing practice that is often contraindicated by medical necessity but used for coercion: forced feeding at Gitmo. Excruciating nasal feeding, rather than excruciating rectal feeding.

Here’s what documents submitted in Abu Wa’el Dhiab’s bid lat year to halt his own forced-feeding revealed.

[T]hese documents reveal[] that back on May 7, one of the government’s primary rebuttals to claims about the conditions under which Dhiab was force fed last year was not to refute those claims, but rather to claim he had no standing to complain because he was not — at that point — being force fed.  Only 6 days later Gitmo cleared Dhiab to be force fed.

Underlying this discussion is Dhiab’s claim that the government has made the standards for force feeding arbitrary so as to be able to subject those detainees leading force feeding campaigns to painful treatment to get them to stop.

To substantiate that argument, the memorandum unsealed on Friday lays out the changes made to Gitmo’s force feeding protocol in November and December. Those changes include:

  • Deletion of limits on the speed at which detainees could be force fed
  • Elimination of guidelines on responding to complaints about speed of force feeding
  • Change of weight monitoring from daily to weekly
  • Deletion of chair restraint guidelines (DOD made a special SOP to cover restraint chair they have thus far refused to turn over)
  • Expansion of scenarios in which prisoners can be force fed, including those at 85% of ideal body weight (IBW)
  • Deletion of provisions against on-off force feeding
  • Discontinuation of use of Reglan (this has to do with potentially permanent side effects from the drug)
  • Replacement of phrase “hunger strike” with phrase “medical management of detainees with weight loss”

In response, the government argued (at a time Dhiab was not eating but before they put him on the force feeding list) that he didn’t have standing because he had not been force fed for 2 months.

That is, Dhiab argued compellingly that force-feeding as it sometimes occurs at Gitmo is about coercion through pain, not about medical necessity.

Particularly during periods of broad hunger striking in Gitmo, it hasn’t been (primarily) about feeding prisoners who don’t want to eat. It has been about breaking resistance.

Along with Appendix M, the force-feeding practices at Gitmo are another thing the UN objected to last year.

And while Dhiab has been released, the 75-pound Tariq Ba Odah remains on hunger strike, though the Obama Administration still claims the authority to detain him (Odah has been cleared for release since 2010) and force-feed him, even though years of the process have created severe medical problems with doing so.

On this issue — the use of torturous techniques to coerce submission — I absolutely agree with Lake there is consensus. While some — including Dianne Feinstein and Gladys Kessler (who has seen videos of the process) oppose it — we’re not seeing any legislation to stop the practice and the Executive continues to insist it has absolute discretion in treatment of detainees at Gitmo so long as it is willing to claim it’s doing so for their own good, however dubious those claims may appear. That’s true, in part, because Democrats don’t want to discomfit their president.

And so, in the end, I agree with Lake that there is a consensus in DC. I’d even argue it’s nowhere near as fragile as he suggests by the end of his piece.

But I’d also argue the consensus that it is okay to nasally or rectally “feed” human beings — in some cases, for years — so long as you can excuse the obviously coerced submission involved with a claim of medical necessity is precisely why others should intervene. Lake may be right that there’s a consensus saying “rectal feeding” shouldn’t be prosecuted, but that doesn’t mean that consensus is defensible.

If Videos of Feeding Can Be Used as Propaganda, You’re Doing It Wrong

Unsurprisingly, the government has just appealed Gladys Kessler’s order that it release the videos of Abu Wa’el Dhiab. h/t Josh Gerstein

DOJ cited a number of reasons why releasing videos of US service members feeding a indefinitely detained prisoner who had been cleared for released years earlier. But one of them is the propaganda to which our adversaries might use such videos.

 (4) use of the videos in propaganda by entities hostile to the United States;

Apparently, if the rest of the world saw how we fed our indefinitely detained prisoners, they would start bombing us.

But honest, DOJ says, it’s not torture and it’s not punitive.

Update, from an affidavit submitted by Rear Admiral Sinclair Harris. (h/t Ryan Reilly)

There is little doubt that ISIL would use imagery from Guantanamo Bay to further encourage its supporters and followers to attack military and government personnel.

He likens releasing these videos to the release of Marines pissing on corpses and news of the US burning Qurans.

He explains if AQAP got it, they might use it to support a recent claim made in Inspire claiming, “America has lost the most important element of global leadership: morals and principles.”

DOD Reasserts Its Right to Force Feed While Not Denying Force Feeding Is Torture

Last Thursday, as a number of outlets reported, Judge Gladys Kessler declined to renew her own Temporary Restraining Order prohibiting the government from force feeding Abu Wa’el Dhiab. As she wrote, Dhiab was willing to be force fed without withdrawing his feeding tube each session and without use of the restraining chair. But the government refused, and so, “faced with an anguishing Hobson’s choice,” in the face of the “intransigence of the Department of Defense,” Kessler did not renew her TRO and ordered DOD to, “abide by their own Standard Operating Protocols, and that the standard for enteral feeding is whether Mr. Dhiab is actually facing an ‘imminent risk of death or great bodily injury.'”

Only, it’s not clear that’s the standard. In fact, the government itself says the standard may be simply body weight of less than 85% of ideal body weight.

A slew of filings have been released in Dhiab’s case in the last month (see below). But key among them are some filings submitted in April and early May, which were just released Friday.

Effectively, the delayed release of these documents reveals that back on May 7, one of the government’s primary rebuttals to claims about the conditions under which Dhiab was force fed last year was not to refute those claims, but rather to claim he had no standing to complain because he was not — at that point — being force fed.  Only 6 days later Gitmo cleared Dhiab to be force fed.

Underlying this discussion is Dhiab’s claim that the government has made the standards for force feeding arbitrary so as to be able to subject those detainees leading force feeding campaigns to painful treatment to get them to stop.

To substantiate that argument, the memorandum unsealed on Friday lays out the changes made to Gitmo’s force feeding protocol in November and December. Those changes include:

  • Deletion of limits on the speed at which detainees could be force fed
  • Elimination of guidelines on responding to complaints about speed of force feeding
  • Change of weight monitoring from daily to weekly
  • Deletion of chair restraint guidelines (DOD made a special SOP to cover restraint chair they have thus far refused to turn over)
  • Expansion of scenarios in which prisoners can be force fed, including those at 85% of ideal body weight (IBW)
  • Deletion of provisions against on-off force feeding
  • Discontinuation of use of Reglan (this has to do with potentially permanent side effects from the drug)
  • Replacement of phrase “hunger strike” with phrase “medical management of detainees with weight loss”

In response, the government argued (at a time Dhiab was not eating but before they put him on the force feeding list) that he didn’t have standing because he had not been force fed for 2 months. It also made a sustained defense of the 85% of IBW.  Much of the rest of the response described how prisoners are currently force fed.

Dhiab’s lawyers responded by parsing the language of the government response closely. They point out that:

  • No one actually involved in the force feeding of detainees submitted a declaration in the case
  • The Senior Medical Officer whose declaration forms the basis of much of the response didn’t arrive in Gitmo until this February, and so has no first hand knowledge of last year’s force feeding
  • The guy who preceded him did not submit a declaration even though he remains in the Navy, stationed at Jacksonville NAS
  • The government relies on a 2006 DOD Standard Operating Procedure document rather than the specific Gitmo SOPs written last year

Ultimately, Dhiab argues that the government has stopped some of the most abusive practices associated with force feeding — which they compare (with a doctor’s declaration in support) to water torture — while being sued.

Respondents state that the force-feeding “is” conducted humanely, and that detainees “are” not being force-fed at quatnties and speeds amounting to water torture. That might be partially true today, to the extent respondents have suspended some (but not all) of their abusive practices during the pendency of litigation challenging those practices. But Respondents utterly fail to rebut Petitioner’s showing of past abusive practices.

And of course, they’re making this argument as the government claims they shouldn’t have to turn over videos or Dhiab’s medical records from last year, the latter because they couldn’t be relevant to this suit because they couldn’t affect what might happen to Dhiab going forward — in spite of the fact that the SOPs remain unchanged.

This is all cross-allegation at this point; we may find out more when the government has to start turning over this stuff in June.

But it seems remarkable, the way the government has hidden details from last year, even while controlling Dhiab’s force feeding status and with it their legal argument.


April 18, 2014: Motion for preliminary injunction, with sealed supplemental memorandum

April 22, 2014: Dhiab speaks to lawyers

April 23, 2014: Dhiab resumes skipping meals

April 24, 2014 Status report

May 7, 2014: Sealed opposition to preliminary injunction

May 12, 2014: Sealed reply to opposition; government refuses to provide 2013 medical records, videos, restraint chair SOP

May 13, 2014: Emergency motion to preserve evidence; Dhiab placed back on force feeding list; nurses start cajoling him about eating

May 14, 2014: Order to reply to emergency motion; according to his lawyer, Jon Eisenberg, Dhiab force fed (all other force feeding details come from Eisenberg)

May 15, 2014: Opposition to emergency motion; according to filing, Dhiab had not yet been force fed; Dhiab force fed in afternoon

May 16, 2014: Reply to opposition to emergency motion; Kessler issues TRO; Dhiab claims Sergeant harasses him about a FCE

May 21, 2014: Status report hearing

May 22, 2014: Kessler does not reissue TRO

May 23, Kessler orders partial disclosure; documents unsealed; Dhiab force fed

May 24: Dhiab force fed twice

May 25: Dhiab force fed twice

May 26: Dhiab voluntarily takes food and nutrient

History Repeats Itself: Kessler Orders Preservation of Gitmo Forced Feeding Torture Videos

With even the New York Times editorial page chiming in on Thursday  (just after the Abramson firing on Wednesday, so this is clearly a big deal to them), Judge Gladys Kessler ruled on Friday that the military must stop its forced feedings of a Syrian prisoner at Guantanamo and preserve videos of him being forcibly extracted from his cell and being fed. We’ve seen this movie before. Recall that Kessler was one of at least two judges ordering the CIA to preserve video evidence of waterboarding before Robert Eatinger and Jose Rodriguez decided to go ahead with destruction of the videotapes. Considering how out of control John Bogdan, head of the Joint Task Force Guantanamo Detention Group, already has been, it would not surprise me at all for these videos to meet the same fate. Heck, given Eatinger’s current behavior in trying to use intimidation to stop further revelations on the torture front, it wouldn’t even surprise me for him to decide, through some sort of OCA role, that it is the CIA’s job to take possession of and to destroy the tapes in question.

Here is Carol Rosenberg reporting on Kessler’s ruling:

A federal judge waded deep into the Pentagon’s handling of the Guantánamo hunger strike on Friday, ordering the military to temporarily suspend forced-feedings of a Syrian prisoner at the detention center until a hearing Wednesday.

U.S. District Court Judge Gladys Kessler in Washington, D.C., also ordered the military to preserve any video recordings guards might have made hauling Syrian Mohammed Abu Wa’el Dhiab, 42, from his cell and giving him nasogastric feedings in a restraint chair. He has also been identified as Jihad Dhiab in court papers and news reports.

The order appears to be the deepest intrusion into prison camp operations by the federal court during the long-running hunger strike, which at one point last year encompassed more than 100 of Guantánamo’s 154 detainees.

The military has since December refused to disclose how many detainees are force-fed as hunger strikers each day, and it was not possible to know if Navy doctors at the base considered Dhiab at risk by perhaps missing four or five days of tube feedings.

Rosenberg goes on to inform us that it only recently was learned that the videos exist. She also realizes that whether Bodgan and his crew will honor the order is an open question:

Military spokesmen from Guantánamo and the U.S. Southern Command did not respond Friday night to questions from the Miami Herald on whether the 2,200-strong military and civilian staff at the detention center had received and would honor the order.

Recall that when the waterboarding tapes were destroyed, that destruction was in direct violation of court orders, including one from Kessler: Read more

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.

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?

What the Government Claims Didn’t Get Videotaped

Earlier, I reported that Judge Gladys Kessler had held the government in contempt for failing to follow her order that they videotape the habeas testimony of Mohammed al-Adahi. As part of her contempt order, she ordered the government to make the transcripts more readily available. Eventually those documents should be here. But in the meantime, I’ve liberated them from PACER (part one, part two).

The Visual Aspects Not Videotaped

The transcripts are interesting for two reasons. First, they show that the defense counsel and the Judge highlighted the filming that was supposed to be going on. Kessler emphasizes that when the hearing starts.

THE COURT: Good afternoon, ladies and gentlemen. This is the case of Mohammed Al-Adahi versus Barack Obama, CA 05-280. All counsel are present.
We are going to have videotaped testimony this afternoon I do believe from the petitioner, Mr. Al-Adahi. He will be testifying from Guantanamo.

Then, al-Adahi’s defense counsel in DC warned that those in Gitmo might be sweating on account of the lack of air conditioning.

MR. CHANDLER: A couple of minor items, Your Honor.

First, in the room in Guantanamo there is no air conditioning. Ms. Wilhelm said that may speed up her questioning. But if you see people perspiring profusely, it is because they are in the Caribbean with no air conditioning.

Then there’s an exchange between Chandler and Kessler in which the Chandler warns Kessler that al-Adahi is chained to the floor, which appears to frazzle Kessler.

MR. CHANDLER: There was a third thing I meant to call to the court’s attention, and that is that Mr. AI-Adahi is chained to the floor in Guantanamo.

THE COURT: I see. All right. Mr. AI-Adahi is now going to testify, and he does need to be sworn in. I know that he is using his religious book, the Koran, and of course that is acceptable to the court. Mr. AI-Adahi, would you please –oh, he cannot stand. I am sorry. Excuse me.

MR. CHANDLER: He can stand, he just can’t move around.

MS. WILHELM: Yes, Your Honor he can stand.

THE COURT: Oh, he can. All right. Would you please stand up.

In other words, Kessler and the defense counsel were all taking heightened note of the visual aspects of the scene, and al-Adahi’s own lawyer was arguably playing aspects of that image–the perspiration, the manacles–up for the videotape. Read more

Obama Administration Held in Contempt for Hiding Gitmo Testimony

Yesterday, I pointed to this language from the Government’s amicus brief in the Mohawk case.

The Executive cannot be expected to persist in withholding information that a court has ordered to be disclosed; to suggest otherwise would be to invite the “unseemly” interbranch conflict that this Court declined to let unfold in Nixon.

The government would never withhold information after a Court ordered it to hand over the information. Oh no, it would never do that!!!

Only, it would do that.

Just today, in fact, Judge Gladys Kessler just held the government in contempt for totally ignoring one of her orders: to video tape the habeas testimony of Gitmo detainee Mohammed Al-Adahi.

This Court heard Petitioner’s case at a four-day Merits Hearing from June 22-26, 2009. Id. at *2. Because classified information needed to be presented at the Hearing, proceedings had to be closed to the public. To afford the public and the press an opportunity to observe the greatest possible portion of Petitioner’s testimony, the Court instructed “the Government, through the appropriate agency, [to] videotape [Petitioner’s] testimony and maintain copies of the complete testimony as given, as well as a redacted version of that testimony.” Order at 1 (June 19, 2009). Petitioner testified via video-conference on June 23, 2009.

On July 23, 2009, the Government filed notice with the Court that the Petitioner’s testimony had not been videotaped.

[snip]

By requiring the Government to videotape Petitioner’s direct testimony and crossexamination, and then make it public after classification review, the Court sought to ensure that the public would have an opportunity to observe as much of the testimony as possible. Thus, there are two other justifications for imposing sanctions against the Government: to minimize the damages to the public’s lost opportunity to observe an actual Guantanamo Bay trial (or “Merits Hearing,” as it is referred to), and to deter further noncompliance with court orders.

[snip]

ORDERED, that the United States Department of Defense is hereby adjudged and decreed to be in civil contempt of Court for failing to comply with this Court’s Order of June 19, 2009, directing Respondents to videotape Petitioner’s testimony at the Merits Hearing in this case, and then to redact and maintain a copy of that recording; and it is further

ORDERED, that the Clerk of Court shall post a transcript of Petitioner’s testimony on the United States District Court Public Information Page for Guantanamo Bay Cases; and it is further

ORDERED, that Respondents shall submit, within 30 days of the date of this Order, a detailed explanation of all steps taken to ensure that such errors not occur in the future;

Mind you, this is effectively just a slap on the wrist. This is just civil, not criminal, contempt. And the government does not have to make a new videotape of al-Adahi’s testimony. And Kessler did not order the government to release al-Adahi, even though she earlier ruled in his favor on the habeas petition (the government is appealing).

So, once again, the government has played games with a detainee videotape (this time, by not making it) and gotten away with it. While Kessler ruled that al-Adahi’s lawyers had not proven the government had done this intentionally, there’s a very well established pattern here of the government repeatedly ensuring that no videotape evidence from detainees exists–at least publicly.