A penal strategy dressed up to look like a medical procedure

Tom Malinowski, an assistant secretary of state who traveled to Geneva to testify, conceded to the UN committee that the US had tortured post-9/11 terrorism detainees.

“At the same time,” Malinowski said, “the test for any nation committed to this Convention and to the rule of law is not whether it ever makes mistakes, but whether and how it corrects them.”

Jihad Ahmed Mujstafa Diyab is a Syrian man who has been a detainee at the prison in Guantánamo Bay, Cuba, since 2002. In 2009, the Guantánamo Review Task Force ruled that he was not a threat to national security and could be released. Yet here we are five years later, and Diyab is still imprisoned at Guantánamo, having never been tried, or even accused of a crime, and with no idea when — or if — he’ll ever get out. Last year, to protest their continued confinement, he and many other detainees began a hunger strike.  

One reason many detainees abandoned their hunger strikes is because, twice a day, the government used what is called “enteral feeding” to ensure that they were getting nutrients. A more common term is force-feeding. The ordeal begins with something called “forced cell extraction,” which one of Diyab’s lawyers, Jon Eisenberg, described to me as “a highly orchestrated procedure.”

“A five-man riot squad in complete armor pins the guy to the floor, shackles him, and carries him out,” Eisenberg says. Then the detainee is strapped into a restraint chair — which the prisoners have dubbed the “torture chair.” One soldier holds the detainee’s head, while another feeds a tube into his nose and down to his stomach. It is very painful to endure.

Last year, I wrote several columns about force-feeding, asking whether it could be classified as torture. At the time, I didn’t think there would ever be a way to test that premise in an American court. The federal judge who seemed most sympathetic to the detainees’ plight, Gladys Kessler, had concluded that she simply lacked the authority to rule on the conditions of their confinement, based on a 2006 law intended to prevent the prisoners from petitioning the judiciary and challenging their detention.

Lo and behold, Judge Kessler turned out to be wrong. Earlier this year, the United States Court of Appeals for the District of Columbia Circuit ruled, 2 to 1, that she did have jurisdiction. There are strict medical protocols for force-feeding hospital patients or prisoners. If the military violated those protocols — especially if detainees were force-fed in an abusive, punitive manner — then she could order them to stop.

Thus began eight months of legal wrangling between Diyab’s lawyers and the government that culminated in a three-day hearing that took place last month. Though no one put it like this, its purpose, at least in part, was to decide whether the military’s methods for force-feeding detainees was a form of torture.

One of those who testified on Diyab’s behalf, Steven Miles, a professor of medicine at the University of Minnesota, said it’s not even a close call. He was first horrified to discover that the government had been lubricating the tube with olive oil instead of a water-soluble lubricant. “When you pass the tube, some of the lubricant can drop into the lungs,” he said. Olive oil in the lungs can cause an inflammatory reaction called lipoid pneumonia. (The government says it stopped using olive oil as a lubricant over the summer.)

After listing a half-dozen other ways the government’s force-feeding violated medical protocols, he concluded: “They turned it from a medical procedure to a penal strategy dressed up to look like a medical procedure. The procedures look nothing like medicine.”