Today’s post is from Dr. Jan Goldman, an adjunct professor at Georgetown University and the editor of Ethics of Spying, Volumes 1 and 2. Dr. Goldman is the world’s leading expert on intelligence ethics, which made him the perfect person to weigh in on a currently troubling ethical situation: hunger strikes at Guantanamo.
Even this week, I noticed as I graded students’ final exams, that people mistake “laws” for “ethics.” This is a conversation Jan and I have had several times; as a lawyer, I can say definitely that what is legal is not necessarily ethical, and vice versa. Jan’s analysis does a fine job of reaching beyond the false assurance of legality to ask what a basic moral code requires of the United States in response to the prisoners’ actions. I fear that the repercussions of Guantanamo will continue long after the facility is closed. Intelligence-wise, it will present some of the most historically cogent and troubling questions regarding what should and should not be allowed in collections and information gathering.
Ethics of Force-Feeding
At the military detention facility at Guantanamo Bay, Cuba, 100 of the 166 detainees are on a hunger strike. President Obama has already announced, “I don’t want these individuals to die.” The result has been the forced feeding of these individuals strapped to a chair for 1 to 2 hours as a tube gets shoved up their noses with a feed-drip of Ensure while either a nurse or someone from the military watches. This has been going on since February, although, there are reports that for a few detainees they have been on a hunger strike (and undergoing this painful operation) since 2005.
From an ethical viewpoint, it must be asked, “Is it ethical to force-feed a detainee?” What obligation or responsibility does the government have to keep these men alive in their cells?” On the other-hand, would it be more ethical for the government NOT to be involved in keeping these men alive against their will.
First, let’s look at the experts and see what they have to say….the American Medical Association has taken no direct stance, except to say that international standards have upheld a prisoner’s right to refuse food and drink. More explicit is the international standards at the World Medical Association,
“Where a prisoner refuses nourishment and is considered by the physician as capable of forming an unimpaired and rational judgment concerning the consequences of such a voluntary refusal of nourishment, he or she shall not be fed artificially. The decision as to the capacity of the prisoner to form such a judgment should be confirmed by at least one other independent physician. The consequences of the refusal of nourishment shall be explained by the physician to the prisoner.”
According to the the International Red Cross, medical staff should not be involved in the forced feeding of inmates, “which would be a gross violation of medical ethics.”
However, if the medical profession sees forced-feeding as an unethical act, assuming the person is mentally competent, is it still possible to for the government to be moral in its claim to force-feed an individual to keep them alive? If it was in the interest to keep these men alive, it must be asked, to what end? The hunger strikes exist because the men live in a never-never world of neither black nor white. They are not prisoners of war or criminals (both of which would have rights under the Geneva Convention or the US Constitution.) These “enemy combatants” live in a world that have been detained years AFTER the Obama administration approved their release. The hunger strike is a recognizable peace protest of their continual imprisonment without charges, but because of politics they remain in prison. They have become desperate individuals, in which they are forced to live forever… without knowing if there will ever be an end. Clearly, to some, death is the certainty they crave. The difference between how we treat prisoners in relation to human dignity, still is in contrast with other prisoners held in the United States. Convicted prisoners serving time, that go on hunger strikes, are provided a sense of dignity. At least in some federal prisons they handle hunger strikes far less coercively, then what’s happening at Guantánamo. For example, in 2007, federal prisoner Sami al-Arian went on a water-only hunger strike for 60 days. Near the end of the strike, he was unable to walk, and trembled constantly. He was transferred to a medical prison, but was not force-fed, though prison officials considered doing so. In contrast, based on court documents and press reports about the Guantanamo hunger strikes, detainees have been force-fed in a matter of days or weeks after they start refusing meals — long before their lives were in serious danger. Clearly, when it comes to hunger strikes, not all prisoners are created equal.
Human dignity is the hallmark of the founding of this country. However, if we cannot rely on past wars, or interpretations of our laws, we must recognize these limitations as it applies to the “war on terror.” In 1985, Associate Justice of the Supreme Court of the United States William J. Brennan, Jr. wrote,
If our free society is to endure, those who govern must recognize human dignity and accept the enforcement of constitutional limitations on their power conceived by the Framers to be necessary to preserve that dignity and the air of freedom which is our proudest heritage. Such recognition will not come from a technical understanding of the organs of government or the new forms of wealth they administer. It requires something different, something deeper–a personal confrontation with the wellsprings of our society.
It’s not ethical, but, rather rational to keep them alive. From an intelligence perspective, if any of these men die, it is highly likely we will see indications of increased violence and a possible upsurge in terrorist recruitment. When Irish Republican Army Bobby Sands starved to death in a British prison in 1981, it led to an increase in recruitment in the IRA and consequently, intense violence that extended that conflict. Without a doubt, the deaths of these individuals in government facilities will be watched outside the walls of this facility and will need watching. Force-feeding may prevent this type of martyrdom, but it also leaves the United States open to further accusations of state torture and prolongs an enviable ending…..or does it?