This week, Emad Abdullah Hassan, a Yemeni man held at Guantanamo Bay since 2002, renewed his legal effort to fight the policy of tube-feeding detainees on hunger strike in protest against their ongoing detention. Last month, the D.C. Circuit held that the federal courts have jurisdiction over cases where Gitmo detainees challenge the terms of their confinement, though the panel declined to enjoin the practice of forced feeding. (You can read the specific claims in Hassan’s case here.)
Nasogastric feeding, the method used with Gitmo hunger-strikers, is where medical staff deliver liquid nutrition directly to a patient’s stomach via a thin plastic tube inserted through the nose.
Critics call the forced feeding torture. Is it?
If nasogastric tube feeding is performed properly, it is not torture. It is an accepted medical therapy used to nourish patients who are unable or unwilling to eat on their own. Doctors use it, for example, to sustain the lives of people left weak from chemotherapy, people with swallowing disorders, and severe anorexics who refuse to eat. In treating anorexics, doctors sometimes perform tube feeding against the patient’s express wishes.
When Yasiin Bey (formerly known as Mos Def) and the human rights organization Reprieve released a video of the actor/rapper being force-fed with an NG tube, the procedure looked awfully dramatic. But NG tube feeding can also be so mundane that patients can purchase supplies on Amazon and find helpful tips online about how to minimize unpleasant side effects, like constipation and vomiting, or what to do about a leaky tube.
At the risk of seeming glib, women at my old eating-disorder treatment program used to get fed by NG tubes all the time. It was no big deal.
If the tube feeding at Gitmo is not being done properly, that’s another matter. If, as Hassan claims, the U.S. military is intentionally punishing hunger-strikers through inhumane treatment during feedings, that should cause deep concern. Medically managed tube feeding, even in cases where the procedure is performed against the patient’s will, should not look like geese undergoing gavage for foie gras.
If the particular ways that Gitmo staff treat inmates during feedings are so brutally beyond what is medically called for that the treatment deserves the label “torture,” the practice is bad because in this case it’s torture disguised as medical care. The feeding is a pretense. That does not mean that tube feeding is necessarily bad. It means that torture is bad, no matter what the pretense used to accomplish it. That would certainly mean a lot for detainees like Hassan, but it wouldn’t tell us much about the acceptability of tube feeding hunger-striking prisoners generally.
Is tube feeding hunger-striking prisoners impermissible, even if done properly, because it infringes upon the prisoners’ rights to free expression? Because it infringes upon the prisoners’ rights to bodily integrity and autonomy?
Not likely, according to U.S. law.
The U.S. Supreme Court has held that inmate rights can be outweighed by legitimate penological interests such as preserving order within prisons. Prison officials worry that hunger strikes and the inmate deaths that could result would cause unrest in the prisoner population.
The Federal Bureau of Prisons specifies provisions for handling inmates on hunger strikes, found in 28 C.F.R. § 549. According to § 549.65, if “after reasonable efforts, or in an emergency preventing such efforts, a medical necessity for immediate treatment of a life or health threatening situation exists, the physician may order that treatment be administered without the consent of the inmate.”
Last year in California, a federal district judge authorized state prison officials to force-feed inmates taking part in a hunger strike. The director of medical services for the prisons said that the measure would only be used in cases where inmates were unconscious or near death. The prison system anticipated using IV nutrition, though it would not rule out the possibility of using nasogastric tubal feeding like in Guantanamo Bay, if called for.
Many state courts too have allowed the practice. For instance, in 2012, the Connecticut Supreme Court held that the state could restrain and force-feed a prisoner on a hunger strike, if medically necessary.
In that case, the inmate argued in part that international law forbids force-feeding. The international opinion is somewhat split, though. The 1975 Declaration of Tokyo by the World Medical Association states that when a prisoner “refuses nourishment and is considered by the physician as capable of forming an unimpaired and rational judgement concerning the consequences of such a voluntary refusal of nourishment, he or she shall not be fed artificially.” However, in 2006, the UN International Criminal Tribunal for the former Yugoslavia ordered Dutch authorities to force-feed former Serbian leader Vojislav Seselj “with the aim of protecting the health and welfare of the accused and to avoid loss of life” and “in order to serve the ends of justice.” Seselj was hunger-striking in protest of his prosecution for war crimes.
Of course, President Obama, as commander-in-chief of our armed forces, has always had the power to stop the forced feedings at Gitmo, whether the D.C. Circuit has jurisdiction over these cases or not. He has the power to stop them, whether the feedings are torture or not, whether they are habeas violations or not. He can halt forced feedings, whether they are barbaric transgressions against human dignity or whether they are routine medical treatments necessary to sustain life and serve legitimate penological interests. He can do it because the optics on the policy are bad, and lots of people get squicked out by nasal intubation. Hell, he can stop ‘em just ’cause it’s Thursday.
But he has not.
So, one answer to the question “Who cares if Gitmo detainees starve to death?” appears to be “President Obama.” He appears to care enough to continue authorizing forced feedings. Perhaps he fears retaliation from our nation’s enemies if he lets these men become martyrs by dying in U.S. custody. Perhaps he fears that more than he fears complaints from humanitarian groups who oppose the forced feedings.
Two final points to consider about this case. First, the detainees fighting for their right to starve themselves in protest don’t truly win either way. If they lose in court, they will be kept alive, but against their will. If they prevail in court, then what they get is the opportunity to slowly die. Theirs is a Pyrrhic victory, at best.
Second, many of the detainees hunger-striking in protest of their detention have already been cleared for release from Guantanamo Bay. You may not want any of these men sacking out in your spare bedroom, but they aren’t the terrorists the government originally suspected they were. The government cleared Emad Abdullah Hassan for release in 2009. Yet today he still sits at Gitmo, possibly being pumped full of TwoCal as you read this.
There are not a lot of easy answers where medical ethics, prison regulation, law, and national security criss-cross. If someone asked you if you care if Gitmo detainees starve to death, how would you answer?
Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at email@example.com