US President Barack Obama should move swiftly to fulfill newly repeated promises to end indefinite detention without trial at the US military prison at Guantanamo Bay.
At a White House press briefing on April 30, 2013, Obama said the prison at Guantanamo “needs to be closed” and committed to reviewing administrative steps and reengaging with Congress to do so. The president’s remarks came amid reports that more than 100 prisoners at Guantanamo were participating in a hunger strike and that the military is force feeding many of them.
“President Obama’s call to end indefinite detention at Guantanamo is encouraging after his long silence on the issue,” said Laura Pitter, counterterrorism advisor at Human Rights Watch. “Though he blamed Congress for the problems at Guantanamo, there are actions he could have taken and can still take now to end indefinite detention there.”
When Obama first took office in 2009, he promised to close the prison at Guantanamo Bay within one year. More than four years later, 166 prisoners remain imprisoned, only a handful of whom face charges.
Obama has pointed to congressional restrictions on transfers of prisoners from the Guantanamo Bay prison as an obstacle to closure of the prison, but he himself has repeatedly signed those restrictions into law, Human Rights Watch said. And the restrictions are not a complete bar – instead, they require the Defense Secretary to ensure certain conditions have been met in the transfer countries.
Of the prisoners now at Guantanamo, the Obama administration has in the past designated 86 for transfer to their home or third countries if security conditions could be met. But a majority of those 86 detainees are Yemeni, and the Obama administration imposed a freeze on all transfers to Yemen following the attempted bombing of a Detroit-bound airliner in December 2009 by a man who claimed to have been in contact with US-born Yemeni preacher Anwar al-Awlaki. Last week, Senator Dianne Feinstein, chair of the Senate intelligence committee and an early supporter of the ban, urged the Obama administration to revisit its moratorium on transfers to Yemen.
Of the remaining detainees, only six are in trial proceedings in fundamentally flawed military commissions, with three others serving sentences.
Another 46 detainees – deemed too dangerous to release but against whom the administration claimed it either did not have sufficient admissible evidence to prosecute or whose acts did not amount to a chargeable crime – were designated for indefinite detention early in Obama’s first term.
That ongoing designation is inconsistent with the president’s statements on April 30, in which he noted that “the idea that we would still maintain forever a group of individuals who have not been tried –that is contrary to who we are, it is contrary to our interests, and it needs to stop.” Obama did not make clear whether or how he would justify keeping a category of people in indefinite detention in light of his statements.
Prolonged indefinite detention without charge or trial violates international human rights law, Human Rights Watch said. All detainees at Guantanamo should either be charged in federal courts or released. US federal courts have long proven capable of effectively handling cases involving terrorism charges.Earlier this year, the Department of State shut down the office of the special envoy charged with closing the prison at Guantanamo.
In recent weeks, increasing numbers of prisoners at Guantanamo have engaged in a hunger strike. Lawyers for the prisoners, as well as some US military officials, say that they have grown desperate in light of what appeared to be dwindling interest on the part of the Obama administration in ending their indefinite detention.
The media has reported that the military has deployed “medical reinforcements” to the prisons to assist with feedings of at least 21 of the hunger strikers who have refused sustenance. Five prisoners are reportedly hospitalized.
Force-feeding detainees who are on a voluntary and informed hunger strike is contrary to international standards, Human Rights Watch said. The World Medical Association’s Declaration of Malta on Hunger Strikers, which has been endorsed by multiple United Nations human rights experts, states that physicians should respect individuals’ autonomy, and that forced feeding contrary to informed and voluntary refusal is unjustifiable. In a letter to Secretary of Defense Chuck Hagel last week, the president of the American Medical Association, Dr. Jeremy Lazarus, reiterated the point, noting that “forced feeding of detainees violates core ethical values of the medical profession.”
“A detainee’s voluntary decision to engage in a hunger strike may seem extreme, and it could have fatal consequences, but the authorities are bound to respect it,” Pitter said. “For the US military to engage in across-the-board force feeding of persons who freely choose to refuse food simply compounds the harm and injustice of indefinite detention without charge or trial.”
Any determination that a hunger striker is acting under coercion, such as from another inmate, should be made on a case-by-case basis by independent experts, Human Rights Watch said. The US military policy to force feed all detainees based solely on the basis that feeding is necessary “to prevent death or serious harm” violates their right to autonomy, while the manner in which it is done may amount to ill-treatment, Human Rights Watch said.