Health Letter, September 2013
The latest hunger strike in the Guantanamo Bay prison facility is now in its seventh month, at its peak involving 106 of the 166 prisoners remaining at the prison. President Barack Obama, who faced criticism for failing to follow through on his campaign promise to close the facility, is now being criticized for his response to the hunger strike.
From the beginning, the military’s policy has been to feed the hunger strikers against their will in an attempt to break the strike. This practice has drawn scrutiny from human rights advocates and, increasingly, from the medical and bioethicist community, which points out that force-feeding of hunger strikers defies long-established ethical protocols.
Strikers’ predicament and motivations
The first detainees transported to Guantanamo in January 2002 were those taken prisoner during the initial invasion and occupation of Afghanistan. At its peak in June 2003, the prison held 680 prisoners. Col. Lawrence Wilkerson, chief of staff to former Secretary of State Colin Powell in the George W. Bush administration, claimed that the administration knew at the time that “the vast majority” of detainees at Guantanamo Bay were innocent. The military effectively acknowledged this by releasing or transferring most prisoners from the facility following unfavorable press and increasing opposition to the compound.
Today, 166 men remain imprisoned at the compound. More than half (86) of the remaining inmates — and some of the hunger strikers — have already been cleared for release, yet they remain in confinement. Though some have blamed Congress for restricting Obama’s ability to transfer detainees, the legislation, passed in January 2011, only prohibits transfers to U.S. prisons, allowing Obama to repatriate detainees to their home countries if his administration certifies that the home country has met certain “security” guarantees. Obama refused to invoke this authority for more than 2½ years, until July 2013, when he repatriated two detainees to Algeria. Congress also cannot be blamed for a complete moratorium, instituted by Obama in January 2010 (and rescinded just this past May) on the repatriation of any Yemeni detainee (who represent the majority of detainees cleared for release) back to their home country.
Prisoners at the Guantanamo facility have initiated hunger strikes off and on since 2002, but previous strikes focused largely on the brutal conditions at the facility. The current strike, the largest and longest to date, has become a desperate attempt by the prisoners, who have lost hope of ever being released, to draw attention to their seemingly indefinite detention.
The force-feeding procedure
The standard operating procedure (SOP) governing the force-feeding at Guantanamo was revealed in a leaked document entitled “Medical Management of Detainees on Hunger Strike” written by the Joint Task Force’s Joint Medical Group at the facility.
According to the SOP, the first action required of military physicians responding to a confirmed hunger striker is to elicit an oral statement from the detainee that he “fully understands” the health risks, including permanent impairment or death that could result from the strike (indicating that all Guantanamo hunger strikers recognize and accept the implications of their actions).
The military physician is instructed to initiate the forcible feedings on day 21 of the hunger strike or once certain visible health effects begin to manifest. Detainees are first strapped to a bed with the head elevated to help prevent inadvertent swallowing of the food contents into the lungs. A hollow rubber tube is then inserted through the nostrils and down the throat until it reaches the stomach. This is the most painful and distressing part of the procedure. Once the tube is confirmed in place in the stomach, a liquid nutrition supplement is pumped into the tube. Inmates can either be fed continuously or intermittently.
As any health care professional knows, this nasogastric feeding procedure is unpleasant enough for consenting patients for whom a medical benefit is desired. One can imagine the experience for inmates who undergo the procedure forcibly, on a daily basis, with no end in sight.
Because the feedings at Guantanamo are shielded from public view, hip hop artist Yasiin Bey (better known as Mos Def) volunteered to submit to a recorded demonstration of the procedure (which followed the Pentagon’s SOP used on detainees) organized by the British human rights organization Reprieve. In the four-minute video, Bey is strapped down while a tube is inserted into his nostrils and down his throat. Though it is only a demonstration, Bey can tolerate the procedure for no more than a minute before tearfully pleading with the staff to stop.
Consensus on ethical guidelines
The World Medical Association (WMA), the leading international physician organization tasked with formulating medical ethics standards, states unequivocally that “forcible feeding is 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.”
The WMA bases its conclusion on the core ethical principles of autonomy and informed consent. A physician is only allowed to administer medical care within the context of a consensually established doctor-patient relationship. Not all hunger strikers request a physician’s assistance, and it is increasingly clear that Guantanamo detainees do not want military physicians treating them. In May 2013, 13 detainees sent an open letter to their military doctors pleading for independent physicians to take over their care. In response, 153 physicians penned an open letter in the Lancet medical journal to President Obama, urging him to allow them to visit with and care for the detainees, in accordance with international ethical guidelines. The letters have so far been ignored, and independent physicians are still barred from the facility.
Once a striker consents to being under the care of a physician, the WMA’s guidelines require the physician to first assess the striker’s motivations and competence to ensure that he or she came to the decision autonomously, without outside coercion, and is fully aware of the consequences of his or her actions. The physician must then ensure that the striker recognizes and accepts the health implications of the strike. Finally, the physician assesses the wishes of the striker for medical treatment, including artificial feeding. The physician must conform to the prisoner’s wishes, including a refusal for life-sustaining measures.
Although the WMA acknowledges that the natural inclination of physicians is toward preserving the health and well-being of their patients (the ethical principle known as beneficence), the association stresses that physicians’ overarching obligation is to respect patients’ autonomy, up to and including life-and-death decisions. “It is ethical to allow a determined hunger striker to die in dignity rather than submit that person to repeated interventions against his or her will,” the WMA concludes.
The American Medical Association (AMA) endorsed the WMA’s stance in an April 2013 letter to Secretary of Defense Chuck Hagel, imploring him to give “… prompt and thorough attention …” to the matter and reiterating its own position that “… the forced feeding of detainees violates core ethical values of the medical profession.”
Two opposing perspectives on the force-feeding of Guantanamo detainees were published in the July 11, 2013, issue of the New England Journal of Medicine (NEJM). On one side, prominent bioethicist George Annas and colleagues alluded to the consensus in the medical and bioethicist establishment against the practice: “That forcefeeding of mentally competent hunger strikers violates basic medical ethics principles is not in serious dispute.” Annas and colleagues went on to observe that, despite this consensus, few physicians were voicing their opposition to what he termed the “aggravated assault[s]” taking place at Guantanamo. (In a 2006 NEJM opinion piece, Annas also highlighted the hypocritical silence of leading bioethicists on the U.S. President’s Council for Bioethics, who in 2003 labeled the Soviet Union’s force-feeding of its own political prisoners in the 1970s as “torture” while remaining silent when the practice was replicated two years later during the first Guantanamo hunger strike. Annas stated, “It is easy to condemn the brutal actions of Soviet-era jailers against political dissidents. It is much more difficult to address the acts of our own country, especially acts, different only in the degree, that have been used by U.S. military physicians against hunger strikers at Guantanamo Bay, Cuba.”)
The opposing viewpoint published in the 2013 NEJM issue was voiced by political scientist Michael Gross. Gross argued that “autonomy is not sacrosanct” and that the sanctity of the prisoner’s life and military priorities could override this most fundamental ethical principle. He concluded his piece by reminding medical professionals that they, like other citizens in what he called a “thriving democracy,” must “simultaneously sustain the efforts of war and contain them.” It is unclear why Gross conveniently attributed to physicians the responsibility to “sustain the efforts of war” rather than the notion that the primary duty of medical professionals is to their patients.
No legal recourse
U.S. courts have largely allowed the force-feeding of hunger strikers in U.S. prisons. Though at least one state court has ruled that certain competent detainees have a right to refuse life-sustaining medical treatment where there is no evidence that treatment will pose a threat to institutional security or public safety, courts have nevertheless consistently ruled in favor of prison authorities’ right to force-feed hunger strikers to preserve “order” and “security” within the prison.
However, even if federal law were more favorable to hunger strikers’ arguments, U.S. law, in many cases, cannot be applied to the Guantanamo prison facility, which was built in Cuba precisely to avoid legal scrutiny. Though the Supreme Court ruled in 2004 that U.S. courts had jurisdiction over the Guantanamo Bay prison, the ruling focused on detainees’ right to appeal the legality of their detention, not their treatment while in detention. In 2006, Congress heavily restricted legal oversight of detainee treatment through the 2006 Military Commissions Act, which forbids any federal court, justice or judge “to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial or conditions of confinement” of aliens detained as enemy combatants.
Two federal court rulings in July 2013 reiterated this point when refusing to consider detainees’ pleas for legal protections against force-feeding, even though one judge, Gladys Kessler, deemed the practice “painful, humiliating, and degrading.” In Judge Kessler’s case, the petitioner had been held for
11 years without charge and was one of the 86 prisoners already cleared for release. Kessler conceded the government’s position that the court had no authority over the strikers but reminded the government that “there is an individual who does have the authority to address the issue,” namely Obama.
Humanitarian smokescreens and public relations realities
The Obama administration has framed its choice to force-feed as a humanitarian gesture rather than strike-breaking. Shortly after the start of the most recent Guantanamo hunger strike, Obama claimed his administration was force-feeding detainees out of concern for their well-being, stating: “I don’t want these individuals to die.” Military officials have since insisted that inmates’ safety and well-being is the sole motivation for the force-feeding policy, claiming an “ethical responsibility … to assure the health and well-being of detainees.” In its press releases, the military makes no mention of the following instructions, buried in the leaked SOP, to military physicians managing the hunger strike: “In event of a mass hunger strike, isolating hunger striking patients from each other is vital to prevent them from achieving solidarity.” How this contributes to their “health and well-being” is not explained.
Official platitudes aside, a look at international precedents to the Guantanamo strike suggests that public relations concerns are the principal driver of the push to violently break the hunger strike. “It’s a little bit of bad press if you force-feed inmates,” explained bioethicist Dr. Jacob Appel in a recent interview with the nonprofit investigative journalism organization ProPublica. “It’s a lot of bad press if you have a lot of protesting inmates and one of them dies.”
The fate of Irish Nationalists detained by the British military during the Nationalist uprising in Northern Ireland in the 1970s and 1980s illustrates, perhaps more than any other event, why prison authorities worldwide prefer live, striking prisoners to dead ones. Beginning in 1976, Nationalist prisoners embarked on a series of hunger strikes and other political actions to protest a British decision to rescind detainees’ status as political prisoners, labeling them instead as criminals and removing many of the limited privileges they had before, such as wearing their own clothing (as opposed to prison uniforms) and interacting freely with fellow prisoners.
In March 1981, the prisoners, led by Bobby Sands, embarked on what was to become their longest and deadliest strike in pursuit of political status. The strikers’ determination to die if necessary led to international attention, with striking inmates becoming revered figures among Nationalists in Northern Ireland and around the world. Bobby Sands was elected to the British parliament while on hunger strike, and an estimated 100,000 people attended his funeral after his death 66 days into the strike. Nine more Nationalist prisoners would starve to death before the strike was called off in response to British concessions on some of the strikers’ demands.
The Obama administration undoubtedly sees the outcome of the 1981 Northern Ireland hunger strike as a cautionary tale. The Nationalist prisoner deaths, resulting from British Prime Minister Margaret Thatcher’s initial refusal to negotiate, made the strike a public relations debacle for the British government. Obama is desperate to avoid a similar scenario at Guantanamo. “You hear American officials say again and again, ‘we don’t want another Bobby Sands,’” noted George Annas in a recent interview with the Christian Science Monitor. And so the feedings continue.