A momentous victory for justice and transparency at Guantánamo

“Fairness” is not a word often associated with Guantánamo Bay, with its hope-starved prisoners who have sat in steel cells, away from their families, for 12 years. “Openness” is not a concept typically applied to the infamous camp, about which President Barack Obama’s administration has hidden more information than even the George W. Bush administration did — down to the current number of hunger strikers protesting their continued detention without charges.

Last week my hunger-striking client Abu Wa’el Dhiab — with the help of an engaged public — managed to win victories for both openness and fairness at Guantánamo. In a pitched court battle, on Thursday we stopped a last-minute bid by the government to hold the first-ever trial of abusive force-feeding at the prison almost entirely in secret. Per Judge Gladys Kessler’s decision on Thursday, the public has the right to hear in court on Monday about the suffering our client endures every day.

Then on Friday afternoon, in perhaps the most significant Guantánamo decision in years, Kessler ordered the release of videotapes showing the cell extractions and force-feedings of Dhiab. For the first time, public knowledge of Guantánamo will not be restricted to U.S. government press releases. Everyone will be able to view and judge for themselves the daily treatment of innocent men such as Dhiab.

It was a long road to get here. More than a year has passed since Dhiab first went to court to try to stop horribly abusive force-feeding techniques used to punish him for his peaceful hunger strike. Arrested in Pakistan in 2002 and eventually transferred to Guantánamo, Dhiab has never been charged with a crime and has been cleared for release since 2009. During his 12 years of imprisonment, one of Dhiab’s sons died, and his family fled the violence of their homeland, Syria. Abu Wa’el means “father of Wa’el,” his preferred name after his son’s passing. Dhiab does not want to die and does not oppose being fed if his health demands. But he will not stop protesting his unjust detention by hunger strike and should not suffer in silence the inhumane methods of his force-feeding.

From the start, Dhiab’s legal fight to stop this abuse has been a roller coaster. First the government argued the judge had no power to review procedures at Guantánamo — an argument Dhiab’s judge initially accepted, although she also found it “perfectly clear … that force-feeding is a painful, humiliating and degrading process.” We appealed, and in a landmark judgment won the right to challenge Guantánamo prisoners’ daily abuse. Later we sued to obtain videotapes of Dhiab’s force-feeding and forcible cell extractions: daily bodily removal from his cell — needlessly — by a group of five guards in full riot gear. We sued to try to prevent the Guantánamo Bay commander, a man with no medical knowledge, from taking away Dhiab’s wheelchair, which he has used for years because of crippling pain in his back, kidneys and legs. We sued to get a court order for independent medical experts (an internist and a psychiatrist) to go to Guantánamo Bay and evaluate Dhiab, since after 12 years of abuse, he understandably no longer trusts the Gitmo medics. And then we had to sue for the independent doctor to be able to use a stethoscope from the fully equipped Gitmo medical facility instead of having to carry her own medical tools to the base.

In this final week before Dhiab’s hearing on the merits of his force-feeding challenge, the government tried one last trick: It asked the court to hold the hearing in secret, without any press or public spectators. The Obama administration, which the president declared the “most transparent” in U.S. history, is terrified that the American public will finally see that nothing about Guantánamo Bay lives up to its motto of “Safe, humane, legal, transparent.” Dhiab’s force-feedings and cell extractions endanger his health, degrade his spirit, violate fundamental rights and are best kept, the government believes, under a thick veil of secrecy.

We, Dhiab’s lawyers, can be forgiven for worrying that the Department of Justice would prevail. Everything about Guantánamo Bay is so heavily guarded by arbitrary claims of national security that the courts are typically hesitant to intervene. This is why Kessler’s order to keep Dhiab’s hearing open was so important. She wrote:

The government seems to have forgotten the words of the Supreme Court … “Openness enhances both the basic fairness of the … trial and the appearance of fairness so essential to public confidence in the system.”

It is also why Kessler’s order to release the videotapes of Dhiab’s abuse is such a remarkable departure from judicial deference to executive prerogatives:

Even when the government's reasons for classification point to a substantial probability of harm, the court must assure itself that the justifications given are “rational and plausible” … In reviewing [those reasons], the court finds — as it will now detail — that most of them are unacceptably vague, speculative, lack specificity or are just plain implausible.

After this stunning pair of decisions, the public will be able to hear three experts testify about what really happens in Guantánamo. The American people will be able to see for themselves evidence of Dhiab’s claims of being forcibly extracted from his cell every day by five guards, denied his wheelchair and crutches, strapped into a five-point restraint chair, painfully intubated and then returned to his cell to wait for the next force-feeding. 

We are looking forward to the next battle. On Monday morning in Washington, we’ll begin a legal proceeding on Dhiab’s behalf that has long been stacked, in terms of available evidence and classification restrictions, against the victim. But now Dhiab will at least be able to say that his case was presented in full view of the world, and we will all have moved one step forward toward justice.