The former warden of the Guantánamo Bay detention facility should not be hauled into court to “defend against our enemies’ legal challenges” because it could lead to low morale among soldiers under his command who may question his leadership skills, the Justice Department argued in court documents.
Moreover, the government’s court papers state, the senior medical officer at Guantánamo should not have to “sacrifice his well earned military leave” to testify about a hunger-striking detainee’s medical needs and the detention facility’s force-feeding practices.
“It would be fantastic to suggest that alien enemies could haul our military leaders into judicial tribunals to account for their day to day activities on the battlefront,” the government’s court filing states, citing a case from 1950 to justify its arguments.
The government made those arguments late Monday in response to a motion filed last month by attorneys representing a hunger-striking Guantánamo prisoner who is challenging the legality of his force-feeding and asked a federal court judge to compel the testimony of three high-ranking Guantánamo officials the attorneys allege are responsible for implementing the controversial protocols.
Syrian national Abu Wa’el Dhiab has been cleared for release or transfer since 2009. His attorneys with the human rights charity Reprieve have been waging a lengthy legal battle over Guantánamo’s force-feeding practices as part of a broader challenge over Dhiab’s 12-year imprisonment.
Last month, Dhiab’s attorneys won access to 28 videos shot between April 2013, at the height of a mass hunger strike, and February of this year that showed him being forcibly removed from his cell by guards and led to a restraint chair, where he was force-fed a liquid nutritional supplement with a nasogastric tube.
After the videos were produced, a different detainee, Ahmed Rabbani, told the lawyers that guards would not allow Dhiab, who they say is disabled, to use his wheelchair to attend his daily force-feedings. In court papers filed in U.S. District Court in Washington, D.C., Dhiab’s attorneys Jon Eisenberg and Eric Lewis alleged that Col. John Bogdan, who until a couple of weeks ago was the commander of Guantánamo’s Joint Detention Group, was responsible for confiscating Dhiab’s wheelchair.
Dhiab’s medical records released last month suggest that the decision to take his wheelchair was a punitive measure. According to a note written by a Guantánamo nurse and dated April 25, Dhiab was told his "dis[ciplinary] status with guard force is affecting his ability to have a wheelchair.”
“If you take a disabled man’s wheelchair away, you ought to have to answer for it under oath,” said Cori Crider, an attorney with Reprieve and a member of Dhiab’s legal team. “Colonel Bogdan’s new ‘no wheelchairs’ policy reveals at best a callous indifference to suffering, and at worst an abuse of the total power he exercises over prisoners in his care. This is the ugly reality of Guantánamo, and it is just the tip of the iceberg.”
Dhiab also sought to depose the current and former senior medical officers at Guantánamo who are responsible for the force-feeding protocols. But the government on Tuesday urged federal court Judge Gladys Kessler, who is presiding over the case, to deny Dhiab’s motion. The identities of the senior medical officers were not disclosed.
“The three military officers that Petitioner seeks to depose all have significant responsibilities that require them to be present at their posts without the burdensome disruption of preparing and sitting for depositions,” wrote Andrew Warden, a Justice Department attorney, in court papers. “These military officers cannot successfully fulfill their important responsibilities if they are required to leave their posts, travel to Washington, D.C., and sit for depositions.”
In addition, the government, citing previous detainee cases involving Iraq and Afghanistan, said senior military officials “should not be compelled to leave their active posts for depositions,” because “Military discipline and morale surely would be eroded by the spectacle of high-ranking military officials being haled into our own courts to defend against our enemies’ legal challenges, which might leave subordinate personnel questioning the authority by which they are being commanded and further encumber the military’s ability to act decisively.”
Bogdan rotated out of Guantánamo late last month. During his two-year tenure as Guantánamo’s warden, one prisoner committed suicide; an Army investigation determined that on his watch there was a widespread breakdown of guards adhering to standard operating procedures; a prisoner was shot with a rubber bullet in a recreation yard; a mass hunger strike broke out; and new policies were introduced, like genital searches before meetings with attorneys, which a federal court judge said was “religiously and culturally abhorrent” and aimed at deterring prisoners from meeting with their lawyers.
At a change-of-command ceremony at Guantánamo in June, Bogdan characterized Guantánamo prisoners as “evil” and said the guards who watch over them “set the example for the world to see.”
"You walk the blocks, stand the posts, man the perimeter, guard the sally ports and access points in order to safeguard and protect the worst our enemy has to offer,” Bogdan said, according to a report published in Guantánamo’s official magazine, The Wire.
“You spend over half your time here in constant contact with the enemy, looking evil in the eyes without blinking and, regardless of what they do, you respond with dignified professionalism because we are American soldiers. This is what we do. This is what we believe.”
Bogdan now heads the Force Protection and Mission Assurance Division for the United States Northern Command (USNorthCom) at Peterson Air Force Base in Colorado and also serves as the USNorthCom commander’s expert on force protection and antiterrorism matters.
Reprieve’s motion filed last month also made sweeping, expedited requests for additional documents, including emails and memorandums, revolving around Guantánamo’s hunger strike and force-feeding protocols and Dhiab’s medical records, which the government said amounted to a “fishing expedition” and should be denied.
Warden’s response said conducting such a sweep would be “amorphous and burdensome” for the Department of Defense and would involve a search of an “incredibly large universe of documents, potentially including medical records of every detainee who has ever been detained at Guantanamo Bay who was enterally fed, as well as every [forced cell extraction] video of these detainees.”
The problem with that, according to the government’s court filing, is that “the Department of Defense does not have a centralized database to search for such email or memoranda; thus, Respondents would have to perform burdensome individual searches of email accounts, electronic computer files, and hardcopy documents (both from classified and unclassified sources) for scores of current and former officials.”
“Even the process of identifying whose records to search would be extremely challenging, as the Department of Defense does not have a roster of officials who worked on enteral feeding issues over the last decade,” Warden argued.
The government said Dhiab’s attempt to gain access to government records is an attempt to get the court “to re-write the procedures for enteral feeding at Guantanamo Bay and in the process gather all the evidence [he] would need to radically transform the status quo, on an expedited basis.”
Judge Kessler is expected to issue a decision on the depositions in the weeks ahead. A full hearing on Dhiab’s force-feeding challenge is expected around Labor Day.