Most of the remaining detainees at the Guantanamo Bay Naval Base prison have now joined a hunger strike. This is not the first time Gitmo detainees have gone on a hunger strike, but the current strike has drawn more attention than past uses of the tactic did, both because it is so widespread and because of the plight of many of the detainees: they have been held for years and cleared for release, but the U.S. government will not allow them to settle here, and has been unable to find a country that will take them.
In response to the hunger strike, the prison has adopted a policy of forcibly feeding those detainees who are at greatest risk of starving themselves to death. Human rights groups and medical authorities condemn such forced feeding as cruel, but the authorities reply that it is better than permitting the detainees to die.
Is the forced feeding of hunger strikers—typically through a tube inserted through the nose and then down into the stomach—legal? Hunger strikes have been used for political causes for over a century: By suffragists in Britain and the United States in the early Twentieth Century; by Mahatma Gandhi for a variety of causes in the 1930s and 1940s; by jailed IRA activists in the early 1980s; and by individual prisoners and groups of prisoners protesting their conditions of confinement in the U.S. and elsewhere to this day.
Yet despite this long history of hunger strikes, U.S. law remains unclear on whether jailors may forcibly feed prisoners. The U.S. Supreme Court has never directly addressed the issue and lower courts are divided on the question.
In this column, I consider the legality of forced feeding of Guantanamo Bay detainees. Although I conclude that the policy probably will not be blocked by the courts, it is nonetheless deeply troubling.
A Right to Refuse Medical Treatment?
Under the law of every state in the United States, competent adults have the right to refuse medical treatment and that right has generally been construed to include a right to refuse food and water. But the Guantanamo prison is run by the federal government, which is not subject to state laws. It is subject to the Constitution, though, and in the 1990 case of Cruzan v. Dir., Missouri Dep’t of Health, the Supreme Court assumed that a competent adult does have the right to refuse food and water. That case did not exactly decide the current issue, however, because it involved the disconnection of a feeding tube from a woman who was no longer competent and whose wishes were contested.
Still, five Justices in the Cruzan case did say that they thought that competent adults have the right to refuse forced feeding, even if death will result. That looks like a solid legal foundation for the detainees who are resisting forced feeding.
But Cruzan is not the only relevant precedent. Prisoners, and even pre-trial detainees who have not been found guilty of any offense, generally have fewer rights than persons at large. In recognition that judges lack the relevant institutional expertise, they give considerable deference to prison and jail administrators, even when the contested policies infringe constitutional rights.
Thus, in another 1990 case—Washington v. Harper—the Supreme Court held that prison officials were entitled to override a prisoner’s objection to forcibly being administered medication, even without a determination that the prisoner was incompetent and thus unable to decide for himself. The Court in Harper assumed that prison psychiatrists would only forcibly medicate a prisoner if doing so is in his medical interest.
Harper strongly suggests that prisoner and detainee claims against forced feeding would likely fail if brought before the Supreme Court. After all, the medical case for forced feeding of at least some hunger strikers is stronger than the medical case for involuntary psychiatric medicine. One might think that the prison doctors in Harper were simply interested in rendering prisoners docile, whereas there is little doubt that prisoners will eventually die if they fail to eat. Although lower courts have sometimes held that prison officials may not forcibly feed a prisoner at the beginning of a hunger strike, Harper does appear to validate the current stated policy at Guantanamo Bay, whereby detainees are forcibly fed when they become dangerously weak.
Hunger Striking as Free Speech
Although the right against the forcible administration of medication may prove unavailing to the detainees, they have other possible arguments. In domestic cases, prisoners have sometimes claimed protection for hunger strikes as a form of free speech.
Yet those cases typically fail. Even though hunger strikers refuse to eat as a form of expressive conduct, the First Amendment does not protect otherwise proscribable conduct simply because someone engages in it to prove a point.
To be sure, if prisoners can successfully show that the authorities are forcibly feeding them in retaliation for their protest, they may be able to win their free speech claim. But such a showing will be difficult to make. When challenged, the Guantanamo Bay prison authorities cite concerns, such as prisoner health, that are unrelated to the ideas expressed by the hunger strikers.
Hunger Striking and Religious Freedom
Another potential avenue of attack may be freedom of religion. The First Amendment is no more helpful to the detainees’ case with respect to religion than with respect to speech: So long as the government does not target hunger strikers because of their expressive or religious motive, the government may pursue its otherwise permissible objectives.
However, a federal statute, the Religious Freedom Restoration Act (RFRA) forbids the federal government from imposing excessive burdens on religious exercise, even if the burdens at issue are not specifically targeted at religion. Although RFRA was held unconstitutional as applied to state and local governments in the 1997 case of City of Boerne v. Flores, it remains valid as applied to the federal government.
Nonetheless, the Guantanamo Bay detainees are unlikely to prevail under RFRA, for two reasons. First, it is not at all clear that forcibly feeding hunger strikers burdens their religion at all. True, the original impetus for the current hunger strike was the perception of the disrespectful treatment of a Koran, but it is difficult to show that requiring the detainees to eat would in any way violate their religious tenets.
Second, even if the detainees could claim that forced feeding burdens their religious practice under RFRA, the courts have applied RFRA in the prison context with the same deference to prison authorities that they have given those same authorities under the free exercise clause of the First Amendment. Hence, a religious freedom claim appears likely to fail.
The detainees’ best argument may be that forced feeding violates international law, as argued in a 2006 report by the United Nation Commission on Human Rights. That report cited three grounds for deeming the forced feeding of hunger-striking Guantanamo Bay prisoners illegal: First, it violates an international law principle of autonomy that is roughly parallel to the principle at stake in the Cruzan case; second, certain methods of forced feeding amount to torture; and third, the participation of doctors in forced feeding violates medical ethics and international law principles.
In public statements made both when the report was initially released and since, the U.S. government has defended forced feeding as a humane, and thus legal, alternative to permitting detainees to starve themselves. At the very least, there appears to be a genuine division of opinion over whether international law forbids the forced feeding of hunger-striking prisoners.
In these circumstances, it is highly unlikely that the U.S. courts would grant relief based on international law. None of the relevant international treaties forbids forced feeding expressly, and even if one did, the Roberts Court would likely find that the treaty language is not self-executing—that is, the Court would likely find that the treaty language requires implementing legislation, which Congress has not enacted. Meanwhile, it appears even less likely that the U.S. courts would find that customary international law gives rise to a judicially enforceable right against forced feeding.
Special Limits on Litigation by Alien Enemy Combatants
Indeed, most of the Guantanamo Bay detainees may find that they cannot litigate any claims challenging forced feeding. A Bush-era statute both forbids detainees from bringing claims based on the Geneva Conventions, and strips the civilian courts of all jurisdiction to entertain any challenge to “any aspect of the . . . treatment . . . or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”
Although that statute was the basis for the dismissal of a suit challenging the forced feeding of hunger strikers in the 2009 district court ruling in Al-Adahi v. Obama, the last statutory qualifier does appear to open a small loophole: Some of the detainees now hunger-striking have been determined not to be enemy combatants but continue to be held anyway because of the government’s inability to find a place to send them, as I noted above. These detainees would appear to fall outside of the statutory exclusion, and thus could bring a civilian lawsuit contesting the conditions of their confinement.
Even then, such plaintiffs would face two very substantial obstacles were they to go to court. First, as we have seen above, the available legal claims seem likely to fail on the merits.
Second, even though the cleared detainees would not be barred from suing by the statutory language quoted above, they would still need to demonstrate that they had a right to sue. Yet, as I explained in a column last year, the current Supreme Court has been closing the door to civil rights litigation in recent years. The days are long gone when anyone with a colorable claim that his civil rights had been violated could at least expect his day in court.
The Larger Detention Problem
Hence, the Obama Administration’s lawyers appear to have done their homework. The odds that the forced-feeding policy will be struck down are slim.
Insulation from judicial review is not vindication, however. The Administration faces a true dilemma in the detainee hunger strike. Either course—permitting the detainees to starve, or forcibly feeding them—is a humanitarian and a public relations disaster.
President Obama recently revived his goal of closing the Guantanamo Bay prison, which is laudable but not sufficient to address the underlying problem. Merely relocating Guantanamo’s prisoners to some other location would change little.
As my fellow Verdict columnist John Dean noted in a recent column describing the Constitution Project report on American detention policy since 9/11, that policy has been deeply flawed from the outset. In particular, the relevant portion of the report tends to confirm that military officials at Guantanamo Bay have used excessive force against hunger strikers.
President Obama’s foreign policy has been slowly unwinding the Bush Administration’s misadventures in Iraq and Afghanistan. The time is long overdue to completely rethink detention policy as well.