WASHINGTON –- On the fourth floor of a federal courthouse just blocks from the Capitol, two very different pictures are being painted of a 43-year-old Syrian man who has been held by the U.S. military for over 12 years more than 1,300 miles away.
In hearings this week, lawyers for Guantanamo detainee Abu Wa’el Dhiab are trying to persuade U.S. District Judge Gladys Kessler to issue a preliminary injunction stopping the military’s practice of force-feeding their client. Dhiab has been held at the Guantanamo prison facility since August 2002 after being arrested in Pakistan. Several government intelligence agencies agreed years ago that Dhiab could be released from Guantanamo, but he's still there with no departure date.
On one side of the current arguments are Dhiab's lawyers, who portray him as a peaceful father of four whose only way to protest against his indefinite detention is by refusing food and participating in hunger strikes. They allege that authorities in Guantanamo have withheld medical care to punish him. They point to documents that seem to show medical officials abandoning their care-taking roles and directing punitive actions against Dhiab -- removing his wheelchair and back brace, and even ordering that he no longer have access to boxer shorts and cotton socks.
On the other side are lawyers representing the federal government, who are in the awkward position of defending practices at a detention facility that President Barack Obama ordered closed in his first days in office. They describe Dhiab as an aggressive and mentally unstable man who is faking his injuries. They are also attempting to undermine the credibility of the expert witnesses who examined Dhiab and testified on the state of his physical and mental health.
It’s a debate the government didn’t want the public to see, citing national security concerns and requesting that nearly all of the arguments take place behind closed doors. But Judge Kessler denied the request to hold hearings out of the public eye, calling it “deeply troubling.” Instead, classified materials have been discussed in shorter closed sessions when necessary.
Some of the closed sessions have centered on videos of Dhiab's being forcefully extracted from his cell and force-fed, which a doctor who examined Dhiab and who has seen the videos described as “disturbing.” The government wanted to keep those videos secret as well, but Kessler has ordered edited versions of the videos to be released. The videos are classified as “secret,” and Dhiab’s team expects it to take weeks, if not months, for the government to edit them in a way that obscures the identities of Guantanamo personnel. The government could also appeal Kessler’s ruling.
In court, lawyers for the government and the detainee sometimes seem to be discussing completely different situations. They even use different terms: The defense attorneys talk about “force feeding,” while the government uses the phrase “enteral feeding” (though a Justice Department lawyer slipped up and said “force feeding” while cross-examining one of the doctors). The divide was on display during opening statements Monday, when Dhiab attorney Eric Lewis called the government's treatment of his client "unworthy of us as a nation,” while Justice Department attorney Andrew Warden said the American military has offered "high-quality medical care" to the man.
Lewis, a lawyer in private practice, said in his opening statement that his client “does not want to die” and that he “wants to be treated like a human being.” He contended that authorities in Guantanamo routinely chose the more coercive and degrading option, instead of trying to solve conflicts reasonably, and that his client was a victim of a “get-tough strategy to get rid of the hunger strikes.”
Warden alternatively said that Guantanamo personnel treated Dhiab in a “humane and medically appropriate fashion” and that force-feeding was “not a painful procedure.” A restraint chair, he insisted, was “not used as a punishment.” Warden asserted there was “no medical reason” that Dhiab couldn’t walk, accusing him of faking medical conditions. Yet he also noted that a doctor had issued an order last month allowing Dhiab to use a wheelchair until February, suggesting it was unnecessary for the court to get involved.
Both doctors who testified on Monday -- Sondra Crosby, who has specialized in treating refugees, and retired Gen. Stephen Xenakis -- said that medical authorities in Guantanamo had been inappropriately involved in disciplining Dhiab.
Crosby, who described Dhiab as cooperative when she met him, said there were a number of instances in which she believes medical personnel stepped over the line. The distinction between medical treatment and disciplinary action “has been blurred,” she said.
“I cannot think of any medical reason why a doctor would issue an order to discontinue medical items” in Dhiab’s case, Crosby testified. “On the surface, it seems punitive.” She said Guantanamo has a “system that is not set up to care for complex patients” like Dhiab.
Xenakis, who focused mostly on Dhiab’s mental state, said he saw his examination of the detainee and his testimony as an “extension” of his military service. He said he did not believe that the government’s treatment of Dhiab furthered the safety of the United States.
While the government maintains that Dhiab is malingering, Xenakis testified he didn’t think that was so, referencing his experiences during the Vietnam War. He said that he had seen a “lot of young men who didn’t want to be in the Army” who had been malingering, but that he didn’t see signs of that in Dhiab’s case.
Xenakis testified that Dhiab had made “very reasonable” requests that were denied by authorities in Guantanamo, who he said even overruled the recommendations of medical officials. He said that Dhiab gets depressed about his life in Guantanamo, but that he didn’t think the detainee wanted to hurt himself and didn’t think he was capable of striking out at the guards. Dhiab is “being provoked” by the way the guards treat him, Xenakis said.
On Tuesday, Dr. Steven Miles testified that forcible extractions of detainees from their cells are “a form of punishment” and that the overall treatment of hunger strikers was part of a “punitive strategy to deter hunger striking,” according to an account from the human rights group Reprieve, which is helping to represent Dhiab.
"Three medical experts have now testified that there is something rotten at the core of Guantánamo -- treatment of hunger strikers is not proper medical care but a punitive strategy to try to break them,” Reprieve attorney Cori Crider said in a statement. “We've forced the government to give Mr. Dhiab his wheelchair back, but they still won't promise not to take it away tomorrow. The authorities have shown time and again that without the Court stepping in, they will abuse our client, and we are here trying to put a stop to it."
As of his last weigh-in, the 6-foot-5-inch Dhiab weighed 152 pounds, which the government claims is roughly 40 pounds below his ideal weight.