Navy Weighing Fate of Nurse who Refused To Perform Guantanamo Force-Feeding Procedures

Earlier this month we noted that, in the much-watched Dhiab case, a federal judge refused to grant a preliminary injunction against certain force-feeding procedures used on hunger-strikers at Guantanamo. Now a parallel saga is unfolding---one involving a US Navy nurse who refused to perform some of those very procedures this past summer. It seems to mark the first instance of a military employee refusing, on professional responsibility grounds, to administer treatment of this kind to Guantanamo detainees.

In September, the Navy determined that it would not subject the nurse, whose identity is being kept confidential, to formal court-martial proceedings.  The matter was instead referred to the Chief of Naval Personnel, who will decide whether to require the nurse to appear before a Board of Inquiry and to show cause for retention in the Navy. The Board of Inquiry procedures (Enclosure 8, at p. 91) specify that the respondent, if asked to appear, will be provided with military counsel.  Additionally, at least one member of the three-member Board would have to belong to the same work category as the respondent (in this case, the Nurse Corps). The case has generated a great deal of attention from the medical profession broadly, and from organizations representing nurses---who argue that any further disciplinary measures would unjustly punish an individual who had respected standards of medical ethics.  (Chief among these is the general requirement of obtaining a patient's informed consent for medical intervention.) By way of examples, the American Nurses Association sent a letter to Defense Secretary Chuck Hagel in October, urging the Government to take no further action against the nurse; Physicians for Human Rights released a similar statement yesterday, and stressed that “[n]urses, like physicians, have professional duties to respect the autonomous decisions of their patients and never participate in ill-treatment or torture.” The nurse is being represented by Ron Meister and Serge Krimnus from Cowan, Liebowitz and Latman. Meister, a former Navy JAG, argues that requiring his client to carry out procedures or to take actions that violate ethical standards is itself unlawful; the armed services generally cannot, for example, order military chaplains or attorneys to ignore their professional obligations. The attorney also emphasized that an early discharge from the Navy could result in the nurse being ineligible for a military pension; moreover, Meister argues, if discharged dishonorably the nurse might also confront the denial of GI Bill and other veterans' benefits.  (To be sure, the case isn't just about professional ethics: There's also a procedural question about the extent to which the Navy may close inquiry proceedings to the public, in order to keep the facts surrounding Guantanamo force-feeding confidential.) There is no set timeline for the Chief of Naval Personnel to decide whether to refer the nurse to a Board of Inquiry. Stay tuned.