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Analysis: In force-feeding detainees, Obama has courts on his side

U.S. President Barack Obama listens to Qatar Emir Sheikh Hamad bin Khalifa al-Thaniat (not pictured) at the Oval Office of the White House i
U.S. President Barack Obama listens to Qatar Emir Sheikh Hamad bin Khalifa al-Thaniat (not pictured) at the Oval Office of the White House i

By David Ingram and Jane Sutton

WASHINGTON/MIAMI (Reuters) - As detainees at the U.S. military prison in Guantanamo Bay, Cuba, press ahead with a widening hunger strike nearly three months old, President Barack Obama has come under increasing criticism for his policy of force-feeding them.

But U.S. law is on his side, an analysis of court rulings shows.

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 own 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.

Courts generally view a prison hunger strike as a suicide attempt, and they have ruled wardens have authority to stop suicide attempts as part of their mandate to preserve order.

"If prisoners were allowed to kill themselves, prisons would find it even more difficult than they do to maintain discipline, because of the effect of a suicide in agitating the other prisoners," Judge Richard Posner wrote for a Chicago-based appeals court in 2006 in a case involving a Wisconsin prison that punished a disobedient inmate by refusing him food.

As of Thursday, 94 of the 166 prisoners were on a hunger strike in Guantanamo, meaning they had refused at least nine consecutive meals. According to a military count, 17 had lost enough weight to be force-fed liquid meals through a nasogastric tube, and three were in the hospital for observation.

Army Lieutenant Colonel Samuel House, a spokesman for the detention camp, said none of the detainees in the hospital had a life-threatening condition.

Striking inmates began refusing to eat around early February, alleging rough handling of the Koran during searches for contraband and protesting their prolonged imprisonment. General John Kelly, head of U.S. military forces in Latin America, said assertions about the Koran were untrue.

OPPOSITION VOICED

A New York Times opinion piece last week by Samir Naji al Hasan Moqbel, a Yemeni man detained at Guantanamo since 2002, launched debate over the forced feedings. Like others there, he was captured abroad on suspicion of supporting terrorism.

"I will never forget the first time they passed the feeding tube up my nose. I can't describe how painful it is to be force-fed this way," Moqbel said in the op-ed dictated through an interpreter to his lawyers.

As described by Guantanamo officials, a feeding tube is lubricated and inserted through the nose down to the stomach for the two hours it takes liquid food to pass through. In general, hunger strikers continue to drink water.

Human rights advocates and many doctors decry forced feeding of hunger strikers as a violation of personal liberty and medical ethics with risks of medical complications such as discomfort, bleeding, nausea and throat sores. The 65-year-old World Medical Association, made up of 100 national medical associations, has said it is unethical and never justified to force-feed a mentally competent adult.

Carlos Warner, a federal public defender who represents 11 Guantanamo detainees, including Kuwaiti hunger striker Faiz al Kandari, said detainee lawyers are split on the issue.

Some "have a clear position that the government should not be force-feeding," and have unsuccessfully made their argument in federal court in Washington, D.C., Warner said. "Other lawyers are of the opinion that their clients should not die of hunger before we have a chance to free them."

The Constitution Project, a U.S. legal group that includes Democrats and Republicans, said last week that forced feeding at Guantanamo "is a form of abuse and must end."

George Annas, a Boston University professor of health law who opposes the forced feeding of hunger strikers on medical ethics grounds, said U.S. law is "very permissive" of the practice. He described the attitude of American prisons as: "Do we care about indignity? No, you're a prisoner, we'll treat you the way we want."

BARRIERS TO LEGAL CHALLENGE

The U.S. military argues forced feeding is not only legal but also humane. A federal judge agreed in 2009, ruling against Mohammed Bawazir, a Yemeni national held at Guantanamo since 2002. Bawazir called forced feeding torture.

Bawazir cited pain he experienced and use of a chair with "six-point restraints" that kept in place his forehead, limbs and torso. U.S. District Judge Gladys Kessler in Washington, D.C., said officials acted out of a need to preserve life.

A further barrier to any suit is the Military Commissions Act of 2006 which bars U.S. courts from hearing cases about Guantanamo detainee treatment. Even if they were to hear a challenge to forced feeding, the overriding evidence is the courts would rule against the detainees.

International law, which prohibits the inhuman or degrading treatment of prisoners, is not necessarily any help to Guantanamo detainees either.

The European Court of Human Rights has ruled at least twice that forced feeding amounted to torture, in a 2005 case out of Ukraine and in a 2007 case out of Moldova, but it stopped short of barring the procedure. The court said it may be used to preserve the life of hunger strikers if shown to be medically necessary and not done for punitive reasons.

Other reports of non-U.S. countries using forced feeding are rare, although experts said there is a lack of data. The practice has been described in news reports in Bahrain, China and Greece during the past decade.

Ten British-held Irish Republican Army prisoners, including former IRA commander Bobby Sands, starved to death in the Maze prison in Northern Ireland during a 1981 hunger strike during which they sought recognition as political prisoners. It ended when the families of the remaining hunger strikers authorized doctors to begin life-saving intravenous feeding as soon as the prisoners lost consciousness.

One early U.S. case involved Mark David Chapman, convicted in the 1980 killing of former Beatle John Lennon. Chapman broke a 26-day fast in 1982 only under a New York court-ordered threat he would be force-fed. Now 57, he is serving a prison sentence of 20 years to life.

Chapman had said he wanted to draw attention to starving children, but the court ruled the state's obligations to protect life and maintain order in its institutions outweighed Chapman's rights to free expression and to privacy.

BALANCING TEST

Most federal and state courts have agreed.

In Rhode Island, for example, finding that prisons have a duty to protect inmates' health, the State Supreme Court ruled in 1995 that "it would be in total disregard of this duty to stand idly by while a healthy adult decided to end his or her life by starvation just as it would if he or she decided to end his or her life by some more dramatic means such as hanging, slashing of wrists, or swallowing some type of poison."

Courts in three states - California, Florida and Georgia - have been exceptions, restricting forced feeding on various grounds, Mara Silver wrote in a 2005 Stanford Law Review article on the constitutional question of self-starvation.

California was the most sweeping. Prison officials must demonstrate "a threat to institutional security or public safety," not merely the conjecture of one, before denying an inmate the choice not to eat, the state's high court ruled.

Those are the exceptions however.

"The federal courts analyze the issue by balancing the prisoner's right to autonomy against the prison's right to maintain order, and they nearly always find that force-feeding is constitutional," said Margo Schlanger, a University of Michigan law professor with expertise in prisons.

(Editing by Howard Goller and Claudia Parsons)

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