Obama’s New Gitmo Dilemma

President Obama is running out of time to make good on his campaign promise to close the prison at Guantanamo Bay before his legacy is forever tainted by his inability, or his unwillingness, to take a stand in the name of justice and close the curtain on one of the darkest chapters in the U.S. War on Terror. Instead he continues to fall further into the hole dug by his predecessor while the civilized world recoils at the humiliation, debasement and mistreatment now being perpetrated in Cuba in the name of the American people.

As of today, all but 60 of the 166 detainees still being held at Guantanamo Bay are engaged in a hunger strike. Twice a day, roughly 45 of them are being force fed “enterally” through a feeding tube inserted into their stomach through their nose — a practice that has been condemned by numerous medical and religious bodies, including the International Red Cross, the World Medical Association and the U.S. Conference of Catholic Bishops. The UN High Commissioner for Human Rights has declared the force feedings a violation of international law; and in an April 25 letter to Secretary of Defense Chuck Hagel, the American Medical Association said the involuntary feedings violate the “core ethical values of the medical profession.” Three bioethicists writing this month in The New England Journal of Medicine go even further, equating forced nourishment to “aggravated assault.”

Once you understand the mechanics of forced enteral feeding, it’s hard to see their use of the term as mere hyperbole. Earlier this week, actor and hip-hop artist Yasiin Bey — formerly known as Mos Def — demonstrated just how excruciating the procedure can be in a short documentary posted at the Guardian website. It’s pretty grueling to watch; but it’s something every American has a responsibility to see. Here’s how one detainee described the process in an April op-ed for the New York Times, which was dictated over the phone to his attorney:

“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. As it was thrust in, it made me feel like throwing up. I wanted to vomit, but I couldn’t. There was agony in my chest, throat and stomach. I had never experienced such pain before. I would not wish this cruel punishment upon anyone.”

On Monday, the first day of Ramadan, a federal judge refused to hear a civil action brought by Syrian detainee Jihad Dhiab seeking to halt his feedings. District Court Judge Gladys Kessler said that while there is solid evidence Dhiab’s rights are being violated, under U.S. law she lacks jurisdiction to intervene. In an unconventional move, she called on the President to use his executive powers as Commander-in-Chief of the armed forces to personally intervene and put an end to the “painful, humiliating and degrading” practice.  In an empty concession, the administration said that throughout the holy month it will only conduct force feedings at night, in respect for the fast.

The President has made it clear he is not entirely aloof to the significance of what’s happening at Gitmo. During a May 23 speech on national security, he addressed the hunger strike head on, evoking the moral sensibilities one would expect from a Nobel Peace Prize Laureate:

“Look at the current situation, where we are force-feeding detainees who are holding a hunger strike. …  Is that who we are? Is that something that our founders foresaw? Is that the America we want to leave to our children? Our sense of justice is stronger than that.”

Unfortunately his actions remain those of a weak-kneed executive grasping at straws for a politically palatable solution to a dilemma that transcends the realm of politics. Instead of glossing over the problem with cans of Ensure, the President needs to address the grievances that led to the hunger strike in the first place. Since the first detainees arrived in January 2002, a total of 779 men and boys have been brought through Guantanamo, most of whom were released without charge after being held for years. Only six of the remaining detainees have been charged with a crime, while more than half  have been cleared for release or transfer but remain incarcerated anyway (Jihad Dhiab was approved for transfer in 2009).

On his first full day in office in 2009, Obama signed an executive order to close the prison within the year, pledging to “restore the standards of due process and the core constitutional values that have made this country great.” Since then he has faced an onslaught of obstructive legislation from Congress — which has passed laws prohibiting the transfer of detainees to the U.S., halted their transfer to any country where security is potentially an issue (Yemen, for instance), and withheld funding needed to find a workable resolution.

It may seem like the President’s hands are tied, but with a little moral courage Obama still has it in his power to do the right thing.  However it will require some strategic maneuvering, not to mention the guts to publicly admit the injustice being carried out on his watch.  According to Harvard law professor Noah Feldman, it would work something like this: The United States is bound by international treaty to adhere to the Geneva Conventions for the treatment of prisoners of war (which have applied to Guantanamo detainees since 2006, following a Supreme Court ruling). As chief executive of the United States, the president is in charge of managing foreign policy, including the adherence to treaty obligations — a domain over which Congress wields little power.

According to this logic, if the President were willing to admit that the continued detention of Gitmo prisoners under the current conditions violates our treaty obligations (which would hardly be a stretch) he could potentially have broad sway in addressing the situation as he sees fit. That is, assuming he survives an almost certain court challenge. If the President proceeds with determination and conviction, he certainly has a shot. Among other things, he could argue national security interests by claiming that the continued operation of Guantanamo Bay in violation of the Geneva Conventions is detrimental to U.S. interests. Feldman points out that in the 1950s,  Secretary of State Dean Acheson  used just such an argument to successfully lobby for the end of state-based segregation in Brown v. Board of Education.

Whatever the outcome, tackling the problem head on and unilaterally will give the President the authority to truly say he did everything he could to honor his promise to close Guantanamo. President Obama will never run for office again and for the rest of his life will be judged by the successes and failures of the eight years of his presidency. It’s time he put political considerations aside and finally started earning that Nobel Peace Prize.