A U.S. appeals court showed a potential willingness on Friday to intervene in the forced feeding of Guantanamo Bay hunger strikers, which the Obama administration says is necessary to keep order but that critics call inhumane.
At a hearing of the U.S. Court of Appeals for the District of Columbia Circuit, two judges on a three-judge panel asked skeptical questions of a government lawyer who argued that the court had no jurisdiction at a military prison such as the U.S. Navy base in Cuba.
While stopping short of agreeing that forced feeding is inhumane, the judges suggested that lower courts should at least allow detainees to challenge the procedure in court.
The judges gave no signs of how they would rule, and a decision is likely to be weeks or months away. But their skepticism appeared to be a fresh challenge to the administration's control over how it treats Guantanamo detainees.
Most U.S. judges who have examined forced feeding in prisons have concluded that the measure may violate the rights of inmates to control their bodies and to privacy - rights rooted in the U.S. Constitution and in common law. But they have found that the needs of operating a prison are more important.
Fifteen Guantanamo captives are on a hunger strike and all 15 have lost enough weight to be force-fed, said Navy Commander John Filostrat, a spokesman for the detention camp. The detainees receive liquid meals via tubes inserted into their noses and down into their stomachs.
At its peak in July, the latest Guantanamo hunger strike included 106 of the 166 prisoners. Of those, 46 were force-fed at least some of their meals.
They began refusing to eat in February to protest their indefinite confinement and the seizure of their belongings during cell searches. After two men were transferred out in August, the United States holds 164 men at the prison, half of whom have been cleared for transfer or release.
Judge Thomas Griffith asked at the hearing why the court should accept without evidence the military's contention that forced feeding is necessary to maintain order.
"Is that your trump card? As long as you play that, that's the end of the inquiry?" he asked Justice Department lawyer Daniel Lenerz.
Lenerz said a long line of court rulings gave the wardens of civilian U.S. prisons wide latitude to determine what is necessary to maintain order, and that a military prison should have even more deference.
Outside court, military officials have also argued that it is the right thing to do to prevent detainees from starving themselves to death, and that the feeding is done in line with long-established procedures for civilian prisons.
IT'S INHUMANE, LAWYER SAYS
Human rights advocates and many doctors call forced feeding a violation of personal liberty and medical ethics. A Guantanamo detainee who sued over the procedure and lost in 2009 called it torture.
"Forced feeding is unethical, it's inhumane, it's a violation of international law and it's a violation of medical ethics," detainee lawyer Jon Eisenberg told the appeals court.
After the hearing, Andrés Conteris, an activist on a hunger strike to protest the Guantanamo prison, was force-fed on the courthouse steps. About 30 other protesters watched as food was pushed through a tube that went into his nose.
President Barack Obama has pledged to close the prison but has failed to do so in the face of congressional opposition. In the meantime, the government argues it may detain suspected members of al Qaeda and its allies under the laws of war.
Obama defended forced feeding at a news conference in April, saying, "I don't want these individuals to die."
One difficulty for detainees is that Congress in 2006 passed a law making it impossible for them to sue over their living conditions.
Their lawyers, though, brought the latest challenge as a request for a writ of habeas corpus, the centuries-old right in English law to challenge unlawful detention. Congress did not suspend habeas suits.
Judge David Tatel appeared open at Friday's hearing to letting Guantanamo detainees use habeas suits to protest their conditions. He said the U.S. Supreme Court had "left it an open question" and said U.S. courts had allowed at least four similar suits in civilian prisons.
Lenerz, representing the Obama administration, responded that the four suits all involved inmates seeking a transfer to another location, not inmates seeking changes in medical treatment or feeding.
"Congress clearly intended to prohibit Guantanamo detainees from challenging the conditions of their detention," he said.
Even if the appeals court allows the habeas suits, detainees would face another difficulty: convincing the judges or a lower court that the U.S. military has no penological reason to forcibly feed detainees.
Tatel said there was a "whole series of federal and state court cases" ruling that civilian prisons had legitimate reasons for forced feeding, primarily to maintain order.
He added that in at least one case a prison was required to show through evidence how a hunger strike was disruptive, something the U.S. military has not needed to prove about Guantanamo.