A federal judge rejected efforts by President Barack Obama’s administration to close a hearing in a lawsuit brought by a Guantanamo Bay prisoner, who wants a court to determine whether the government’s practice of forced-feeding is lawful.
Abu Wa’el Dhiab, who is Syrian, was cleared for release by Obama’s Guantanamo review task force in 2009, however, he remains imprisoned without charge or trial. He has been in detention since 2002. He went on hunger strike and began to be subjected to forced-feeding on April 9, 2013.
In April of this year, Dhiab sought a preliminary injunction to bar the government from “subjecting him to forcible cell extractions (FCE) and from placing him in a five-point restraint chair for the purpose of transporting him to or from forced-feed feeding so long as he indicates he is willing to submit to such feeding compliantly,” according to Judge Gladys Kessler’s decision [PDF].
The government requested that the court “take the extraordinary step of completely closing the entire preliminary injunction hearing to the public. This request, which appears to have been deliberately made on short notice is—in this court’s view—deeply troubling.”
“One of the strongest pillars of our system of justice in the United States is the presumption that all judicial proceedings are open to the public whom the judiciary serves,” Kessler declares.
The government claimed the hearing needed to be closed because the “record in this case includes inextricably intertwined classified, protected and unclassified information.” Closing the hearing would prevent “any unauthorized disclosure of classified or protected information, thereby purportedly ensuring that the hearing proceeds in an efficient manner.” It would not lead to Dhiab suffering “any prejudice.”
Kessler notes a “great deal” of the documentary evidence in the case is “already public and has been filed in public on the court’s docket. To the extent it has not, its submission can be bifurcated into public and closed proceedings.”
She also states, “It is no secret that Mr. Dhiab’s case has received a good deal of publicity in the press.” And, “With such a long-standing and ongoing public interest at stake, it would be particularly egregious to bar the public from observing the credibility of live witnesses, the substance of their testimony, whether proper procedures are being followed, and whether the court is treating all participants fairly.”
Kessler concludes the Obama administration has forgotten or decided to ignore the words of the Supreme Court in Press-Enterprise Co. v. Superior Court in 1984:
…The value of openness lies in the fact that people not actually attending trials [and other proceedings] can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the…trial and the appearance of fairness so essential to public confidence in the system…
Sixteen news and human rights organizations petitioned the court to keep the hearings open. They argued that the “importance of openness” was “particularly stark in proceedings, like this one, that raise questions about how governmental power is being exercised and resolve claims of abuse.”
In a hearing when Dhiab was finally going to be able to describe to the public what his “day-to-day treatment” has been like, the government sought to keep the public from hearing what he had to say.
The government also defended their decision to push for secrecy by claiming they did not intend to “shield the hearing from public scrutiny.” Perhaps, that was not the intention, but it would have been the effect.
As the Associated Press reported in January, the Obama administration has already decided to restrict access to hearings where Guantanamo prisoners come before a Periodic Review Board and “plead for their release.”
The Defense Department required “reporters and observers from non-governmental organizations to view the proceedings only by video link from Washington.” They were also informed they would not be allowed to hear prisoners when they addressed the Board that would decide whether to release them.
An editorial from the Miami Herald appropriately scolded the Obama administration for favoring secrecy over transparency:
…The administration’s propensity for secrecy, its cavalier disregard for the public’s right to see, hear and know what its government is doing, has become a habit that only gets worse with time. This mentality is particularly evident at Guantánamo, where reporters are treated as an intrusive presence, tolerated but inconvenient.
It is only thanks to a series of rulings by the Supreme Court that the detainees themselves have won the fundamental right to contest their detention. And it is only through insistent scrutiny and persistent questioning of arbitrary rules that members of the news media have been allowed to do any meaningful work…
On top of all that is the plain and simple fact that the World Medical Association considers forced-feeding to be “never ethically acceptable.”
“Even if intended to benefit, feeding accompanied by threats, coercion, force or use of physical restraints is a form of inhuman and degrading treatment. Equally unacceptable is the forced feeding of some detainees in order to intimidate or coerce other hunger strikers to stop fasting,” according to the WMA.
The Institute on Medicine as a Profession (IMAP) and the Open Society Foundations published a report in November of last year that called attention to how forced-feeding has been used to break political protests, not save the lives of prisoners, as the administration likes to claim.
“Available evidence suggests that force-feeding has been used commonly, not just in rare instances where a detainee’s life was threatened,” the report stated.
The report called for forced-feedings and the use of physical restraints to be prohibited and concluded, “Far from being humane, the use of force-feeding over the past decade violates the human rights of detainees and has led physicians and nurses to commit serious breaches of their professional standards. Moreover, detainees have been force-fed for weeks and months at a time. The Task Force is not aware of any precedent for ‘managing’ hunger strikes for such a long period, lasting over months, and in some cases years.”
“Neither the World Medical Association nor any standard-setting authority ever contemplated multiple force-feedings in a restraint chair over the course of weeks, much less months and years, as has been the practice at Guantánamo.”
It is abundantly clear that prisoners are being cruelly and inhumanely treated in this grotesque process. Rather than have to confront questions about this ghastly practice in public, the government is committed to doing all that it can to prevent the press and human rights organization from calling more attention to what prison guards and officials are doing to human beings, who remain in indefinite detention at Guantanamo.