Dhiab Preliminary Injunction Hearing Read-Out, Part Two

We continue with our coverage of a preliminary injunction hearing in the case of Guantanamo detainee and intermittent hunger-striker Abu Wa’El (Jihad) Dhiab. As before, we recount the prior day’s proceedings in summary fashion. In short, the day saw further cross-examination of one of the detainee’s experts, Dr. Stephen Xenakis; direct and cross-examination of another expert, Dr. Steven Miles; and the commencement of the government’s evidence. The latter called no witnesses. Its presentation instead comprised only documents, portions of which were highlighted by the United States’ lawyers. And, as before, there was a brief classified session---which only court, counsel and witnesses attended. Additional Evidence By Dhiab in Support of Preliminary Relief Dr. Stephen Xenakis Dr. Stephen Xenakis, a physician and retired Army Brigadier General, returns to be questioned by a lawyer for the government, Ron Wiltsie. The latter is no less aggressive in his interrogation than he was the day prior---when he was, suffice it to say, quite aggressive in questioning the expert. The lawyer is visibly disturbed by Xenakis’ suggestion, in written testimony, that Dhiab may be incapable of violence, and thus poses no security risk during force feedings. Thus Wiltsie asks whether or not Xenakis believes kicks, headbutts, and splashing feces and vomit could be fairly characterized as “violent;” but Xenakis won’t answer in categorical fashion, instead insisting that the “devil’s in the details,” and that such a characterization depends on context. What if Dhiab’s actions---those mentioned by the GTMO commander in his declaration, and cited by Wiltsie---were defensive in nature, or provoked by the GTMO guard force?  The witness concedes that he was unaware of any alleged violence by Dhiab, but faults the government for keeping him in the dark about necessary details. Consequently, Xenakis says he cannot make a value judgement on whether Dhiab indeed has acted violently, based solely on unproven allegations in a declaration. When pushed to assume that Dhiab didn’t act in self-defense, or in the face of provocation, the witness  says he simply doesn’t know whether Dhiab truly could be called violent. There's more on this theme from Wiltsie, who observes that a Guantanamo medical provider felt threatened while trying to give Dhiab an exam. Dhiab kicked the fellow, despite complaints of the lack of feeling in his leg, and the provider was unable to go forward with the exam. Xenakis: well, the provider should have responded to the patient’s initial agitation by seeking to de-escalate the situation. Again Xenakis refuses to make any judgments about Dhiab’s behavior. An irritated Wiltsie interrupts sharply, saying “I did not ask for your judgment, I asked for your knowledge. And you do not have any.” Xenakis repeats that care must be individualized, whether we’re talking about a patient or a detainee. Wiltsie winds up shortly thereafter, pushing Xenakis to admit that, despite contrary claims, Xenakis really believes, deep down, that detainees have an unfettered right to die by hunger striking.  The witness insists that he doesn’t hold such a view, and that hunger striking folks much be approached on a delicate, case-by-case basis. The angry lawyer abruptly halts his questioning, insisting that Xenakis essentially has admitted that Guantanamo doctors have no choice but to allow competent hunger strikers to expire. Re-direct time: One of Dhiab’s lawyers, Alka Pradhan, takes up Wiltsie’s suggestion that Xenakis does not have “knowledge,” and walks the witness through a written declaration by a GTMO commander, regarding Dhiab. Pradhan notes the dates involved, as well as the claims advanced in the document---the attorney all the while suggesting that the commander himself lacked knowledge of any violence on Dhiab’s part, owing to the commander’s not having been at Guantanamo at the time of the alleged events. The attorney has two final themes: Dhiab’s distrust of GTMO medical personnel, and the witness’s lack of bias. On the former, she asks how a broken doctor-patient relationship might be restored; Xenakis says this would require “considerable effort,” but could be accomplished by referring to patients like Dhiab by their names (rather than by their detainee numbers), by acceding to reasonable requests, such as requests for a wheelchair, and by allowing for personal care items.  On the latter, Xenakis disclaims any bias arising from his having spoken out against the abuse of military detainees.  Instead he insists that his views are “not on the fringe” and that he “stands up for the military;” he is, after all, a Brigadier General. Xenakis also notes that he stands in good company: he was one of fifty senior military commanders who criticized the horrors of Abu Ghraib. Prompted by Dhiab’s counsel, the witness closes by saying his focus is on “patients” and “healthcare,” not “detainees” and “prisoners.” Dr. Steven Miles Dhiab’s third and final expert is Dr. Steven Miles, the Maas Family Foundation Chair at the Center for Bioethics at the University of Minnesota. The witness has extensive experience with nasogastric and intravenous feeding. The government does not object to his qualification as an expert in bioethics and medicine---and he is quickly deemed to be one. Attorney Eric Lewis questions Miles.  The pair quickly establish that Miles’ testimony goes not to his views on force-feeding generally, but instead on the standards that govern the process---that is, the fit between international instruments like the Convention Against Torture, the views of the International Committee of the Red Cross, and so forth, and the medical policies in play at Guantanamo.  The fit, it seems, is bad---at least in Miles’ view. When asked by Lewis, Miles says he thinks it is “patently false” that, as the government has suggested, there are no guidelines/standards regarding force feeding---the decision to resort to it, and rules governing it thereafter. And like Dhiab’s other experts, Miles stresses that in a detention setting, individualized care is an absolute necessity---a contrast to the programmatic, commander-driven care furnished to Dhiab and other detainees.  In Miles’ opinion, GTMO staff repeatedly commences force-feeding without first confirming that Dhiab in fact confronts any life-threatening malnutrition. Guantanamo personnel, according to the witness, do not use standard indices of malnutrition; moreover, lab tests Miles reviewed do not suggest a level of malnutrition that might trigger nasogastric feeding. Of course, Guantanamo personnel have cited body weight---the percentage below a certain ideal weight---as a guiding factor in making force-feeding decisions. But Miles says that body weight in isolation is not a proxy for nutrition or even general health. Lewis observes that, after arriving at Guantanamo, Dhiab’s body weight fell from 179 to somewhere in the 150s. Miles observes nevertheless that Dhiab has been hovering at 150 lbs. for a while now; the weight loss, accordingly, might have its roots in reduced exercise, lack of bone mass, and so forth, and not in persistent, emergent health problems threatening death. What about the use at Guantanamo, for a time, of olive oil to lubricate nasogastric tubes inserted into the bodies of hunger striking detainees?  Miles disapproves strongly. Olive oil should never be used as a lubricant, he testifies. Only water-soluble lubricants should be. (The court asks Miles whether olive oil’s use is contrary to the applicable standard of care; Miles answers that there is “no debate” about this.)  The witness is “deeply concerned” over the use of olive oil, because it can cause hydrosis, chronic shortness of breath, as well as severe and chronic inflammation and a unique kind of pneumonia. Though the government has discontinued olive oil’s use, it previously used the substance regularly during force feedings; it even had a checkbox on forms for making sure olive oil was used. Miles is just as unsparing about three more medical procedures at Guantanamo: blowing air bubbles into inserted feeding tubes, so as to confirm their placement; removing and re-inserting tubes twice daily, rather than leaving them in for extended periods; and employing five-point restraint chairs during force-feedings.  (The latter preclude movement in five places: all four limbs, and the head.)  Miles observes that the air bubble process has a 2% error rate; moreover, there are far better, more commonly used tests available to confirm that a tube has landed in the stomach rather than, say, the lungs or even the brain. X-rays, for example, are vastly superior; Miles is dismissive of the government’s suggestion that such procedures might expose detainees to intolerably high radiation levels. Such levels would certainly be reduced in any case, if GTMO personnel were to observe standard nasogastric procedure---and leave inserted tubes inside hunger-striking detainees’ stomachs, rather than removing and re-inserting the tubes repeatedly. The latter poses heightened infection risks, and can make for needless pain. But tubes can safely remain inserted for many weeks at a stretch; that’s the standard procedure at hospitals, according to Miles. As for the restraint chairs, Miles characterizes them as “extremely distressing” and a potential cause of muscular atrophy. (The witness says he has long opposed such chairs, and that the movement to abolish them has seen “tremendous progress.”)  With prompting from Lewis, he reminds the court that according to a 1977 UN report on treatment of prisoners, restraint should not be used unless absolutely necessary; he adds that forcible cell extraction breaches that and other international standards.  Now Judge Kessler interjects, having in mind Miles’ repeated insistence on individualized treatment: how should a big institution, like a law of war detention facility, apply individualization and related standards, given its security imperatives and the distress, anger and misery felt by detainees?  Miles acknowledges Guantanamo’s legitimate security needs.  But he’s firm in his conviction that such needs do not justify disespect of basic human rights. He adds that trained doctors are taught to de-escalate dangerous situations, and that, moreover, hunger strikes are typically meant to protest poor quality care. After lunch, the baton passes to Department of Justice lawyer Patrick Davis.  He questions Miles, and starts with a theme that recurs throughout the cross-examination: Miles’ testimony and expert report is derived from sources dealing with hospitals and prisons---not law of war detention centers.  The lawyer asks, and Miles agrees, that he has never visited Dhiab, and that an expert who has---Crosby---found Dhiab to be malnourished. The witness says he didn’t know of this, but adds that, as an internist, he routinely took steps to address nutrition problems (and thus, seemingly, could deduce one from records he reviewed). Miles also accepts that a successfully force-fed detainee might not exhibit signs of malnutrition, precisely because of nourishment introduced during force-feeding. Davis asks about the air-bubble process. Didn’t Miles cite, in his report, a document that asserts that this process merits some consideration?  The witness observes that the same document laments bubble-blowing; indeed, its title is “Old Habits Die Hard.”  Davis then pivots to another item Miles relied upon, in making arguments about tube re-insertion; he gets the witness to accept that, yes, the article in question didn’t have to do with a Guantanamo-like detention camp, but instead concerned hospital practices. But Miles thinks little of the Guantanamo-is-different claim; the continual use of a five-point restraint chair, for example, would promote bad behavior whatever the care environment. In 20 years, he has never had to continually restrain patients for the safety of medical personnel, and Miles dealt for a time with the likes of criminal gang members. The lawyer pushes: criminal gangsters are hardly the same thing as terrorism detainees, right? Miles thinks there is some overlap there, for sure. And he accepts that restraints are appropriate in some circumstances---he just rejects the programmatic use of restraints. Do detainees have a right to die?  Miles finds the issue “tough,” and worries that one allows as to ferret out possible coercion, when hunger-striking is in play. He isn’t aware of any coercion, based on his document review---but notes that the government decided what materials he could and could not read in preparing his expert report. Now to Davis’ punch line: Miles is deeply biased. He authored a book called “Oath Betrayed,” and therein charged that Guantanamo doctors had been complict in detainee abuse; and he has a website called “doctorswhotorture.com,” which alludes to the need to call out GTMO medical personnel for their misdeeds. For his part, Miles rejects any suggestion of bias, insisting that he never singles out bad practices by the United States, and instead seeks accountability for such practices in all nations. Lewis conducts a brief redirect examination, and asks how hard it would be for GTMO staff to measure malnutrition using metrics other than bodyweight.  Not hard, according to Miles; the needed lab tests are “not fancy,” and cheap. When asked, Miles tells Lewis that his testimony and Crosby’s, regarding malnutrition, are consistent: Crosby, like Miles, didn’t say that Dhiab confronted a life-threatening, severe form of manutrition warranting force-feeding. Lewis then returns to individual treatment standards, and the need to calm risky situations.  Have GTMO staff sought to de-escalate situations in response to detainee confrontations, or to display overwhelming force? In this regard, Miles says Dhiab’s 1,300 forcible cell extractions speak for themselves. He adds that the government has been programattic in its approach to tube insertion---an evident effort to punish detainees.  That’s wrong, he testifies; the detainees are not “permanent sinners.” The Government’s Evidence Against Preliminary Relief With Dhiab’s in-court presentation concluded, the government turns to its proof.  It won’t be offered through any witnesses, apparently; instead, government lawyers will highlight, and read aloud from, documents bearing on the key themes in their case against the petitioner’s motion for a preliminary injunction.  (This somewhat unusual procedure is an editorial challenge for us, as your correspondents must summarize materials that are themselves summarized aloud, in open court. For the reader’s convenience, we will review the government’s documents in thematic, broad fashion---rather than seeking to pull out details from the documents themselves.) First up is Department of Justice lawyer Patrick Davis, who says his share of the government’s documents will dispel some myths about GTMO. In particular, he’ll seek to rebut claims that force-feeding at the camp is ever medically unnecessary, or that it is done solely at the behest of the Guantanamo commander and without regard for the views of Guantanamo medical officials.  This and similar characterization by Davis draws objections. The petitioners’ lawyers thus wonder aloud: are we doing argument here or document review? The former is off-limits, according to Dhiab lawyer Eric Lewis, and in any case will follow the close of the government’s case; only the latter is permissible now. Kessler mulls the protest but allows Davis to proceed with his witness-free review---though she cautions him to keep to the agreed-upon practice of highlighting key pieces of government proof. First up: GTMO medical policies. Documents issued by the Department of Defense obligate Guantanamo personnel to “preserve the lives of detainee patients.” And while that duty generally requires a detainee’s prior consent to medical treatment, there is a narrow exception when such treatment is required in order to “prevent death or serious harm.” The exception’s invocation, though, must be medically necessary, involve a thorough interview with the detainee about possible risks, an effort to obtain voluntary consent, and, eventually, the sign-off of the Guantanamo commanding officer. It also seems weight is not the only factor informing the decision to begin force-feeding; according to materials the government put in the record (and to Davis’ recitation), senior medical officials review each case individually, using weight as but one of several medical criteria. (Davis notes other statements by medical officers, to the effect that weight may be the sole criterion only when other measures are not available.) Based on the documents, Davis also tells the court that commander approval is essentially a formality; force-feeding decisions are informed by the views of Guantanamo’s senior medical officer, to whom the commander largely defers. Davis turns to Dhiab’s own conduct. In the spring, records show that Dhiab was eating somewhat regularly, according to him in order to shore up his health in anticipation of a transfer to a third country. During one medical exam, for example, the detainee allegedly said he wasn’t fasting at all, but that he didn’t want that fact to get out to other detainees; indeed, Dhiab only began hunger-striking once more after petitioners’ counsel filed their motion for preliminary relief.  This obvious advocacy moves Lewis once more to object, and the court to steer the government’s lawyer back to the evidence and nothing more.  At any rate, it seems Dhiab was force-fed thereafter, as soon as a temporary restraining order, issued by Kessler later in the spring, was dissolved.  Medical records, moreover, indicate officials’ worries that discontinuing force-feeding might subject Dhiab to heightened risk---of things like seizure and electrolyte drops. The detainee, moreover, had dropped to 85% of his ideal body weight while fasting. Davis returns to counsel table, tagging in his colleague Andrew Warden.  The latter refers to several charts and demonstratives, themselves derived from medical records in Dhiab’s file and the declarations of Guantanamo medical staff. Entries in the demonstratives echo evidence cited by Davis, as well as larger themes in the government’s case: one says insertion of a nasogastric tube must be medically necessary, for example; another observes that detainee pain can be eliminated during tube insertion, through use of a lubricant or a topical anaesthetic. Per the demonstrative and underlying documents, olive oil was last used at Guantanamo, for tube lubrication purposes, on June 25.  Warden also passes around several tubes, of varying diameters, and refers to a Brown University guide, regarding the proper diameter tube to insert given a patient’s characteristics. His seeming suggestion is that Guantanamo personnel only use a quite small, and therefore less irritating, tube size. Warden also observes that a prominent Children’s Hospital has instructed parents on how to insert feeding tubes into their own, small children---and that the Children’s Hospital literature says that tube feeding “isn’t painful.” The distribution of tubes raises Lewis’ eyebrow; can the detainee’s lawyer interrupt the government’s evidence ever briefly, so as to recall Steven Miles to the stand and push back on the government’s tube evidence?  The request is unusual but it seems he can, and thus Dhiab’s final expert returns for five minutes of supplementary testimony. The meaning here is hard to grasp; it seems that in Miles’ view, some tubes referred to by the government are not for feeding at all, but instead for suction. The government declines to cross-examine Miles further; the day therefore comes to a close.