By David Ingram
WASHINGTON (Reuters) - A U.S. appeals court showed a potential willingness on Friday to allow Guantanamo Bay hunger strikers to sue over being force-fed, a practice the Obama administration says is necessary to keep order but that critics call inhumane.
At a hearing of the U.S. Court of Appeals for the District of Columbia Circuit, two judges on a three-judge panel asked skeptical questions of a government lawyer who argued that the courts have no jurisdiction over conditions at a military prison such as the U.S. Navy base in Cuba.
While the judges stopped short of agreeing that forced feeding is inhumane, they suggested that Guantanamo detainees might be able to get around a 2006 law that bars them from suing over living conditions in extreme cases that might include forced feeding.
A decision is likely to be weeks or months away, but the skepticism appeared to be a fresh challenge to the administration's control over how it treats Guantanamo detainees.
Most U.S. judges who have examined forced feeding in prisons have concluded that the measure may violate the rights of inmates to control their bodies and to privacy - rights rooted in the U.S. Constitution and in common law. But they have found that the needs of operating a prison are more important.
Fifteen Guantanamo captives are on a hunger strike and all 15 have lost enough weight to be force-fed, said Navy Commander John Filostrat, a spokesman for the detention camp. The detainees receive liquid meals via tubes inserted into their noses and down into their stomachs.
At its peak in July, the latest Guantanamo hunger strike included 106 of the 166 prisoners. Of those, 46 were force-fed at least some of their meals.
They began refusing to eat in February to protest their indefinite confinement and the seizure of their belongings during cell searches. After two men were transferred out in August, the United States holds 164 men at the prison, half of whom have been cleared for transfer or release.
Judge Thomas Griffith asked at the hearing why the court should accept without evidence the military's contention that forced feeding is necessary to maintain order.
"Is that your trump card? As long as you play that, that's the end of the inquiry?" he asked Justice Department lawyer Daniel Lenerz.
Lenerz said a long line of court rulings gave the wardens of civilian U.S. prisons wide latitude to determine what is necessary to maintain order, and that a military prison should have even more deference.
Outside court, military officials have also argued that it is the right thing to do to prevent detainees from starving themselves to death, and that the feeding is done in line with long-established procedures for civilian prisons.
IT'S INHUMANE, LAWYER SAYS
Human rights advocates and many doctors call forced feeding a violation of personal liberty and medical ethics. A Guantanamo detainee who sued over the procedure and lost in 2009 called it torture.
"Forced feeding is unethical, it's inhumane, it's a violation of international law and it's a violation of medical ethics," detainee lawyer Jon Eisenberg told the appeals court.
After the hearing, Andrés Conteris, an activist on a hunger strike to protest the Guantanamo prison, was force-fed on the courthouse steps. About 30 other protesters watched as food was pushed through a tube that went into his nose.
President Barack Obama, who has pledged to close the prison but has so far failed to do so, defended forced feeding at a news conference in April, saying, "I don't want these individuals to die."
One difficulty for detainees is the law Congress passed in 2006 making it impossible for them to sue over their living conditions. The appeals court argument on Friday followed rulings by lower courts that the prisoners had no case.
Their lawyers brought the latest challenge as a request for a writ of habeas corpus, the centuries-old right in English law to challenge unlawful detention. Congress did not suspend habeas suits.
Judge David Tatel appeared open at Friday's hearing to letting Guantanamo detainees use habeas suits to protest their conditions. He said the U.S. Supreme Court had "left it an open question" and said U.S. courts had allowed at least four similar suits in civilian prisons.
Lenerz, representing the Obama administration, responded that the four suits all involved inmates seeking a transfer to another location, not inmates seeking changes in medical treatment or feeding.
"Congress clearly intended to prohibit Guantanamo detainees from challenging the conditions of their detention," he said.
Even if the appeals court allows the habeas suits, detainees would face another difficulty: convincing the judges or a lower court that the U.S. military has no penological reason to forcibly feed detainees.
Tatel said there was a "whole series of federal and state court cases" ruling that civilian prisons had legitimate reasons for forced feeding, primarily to maintain order.
He added that in at least one case a prison was required to show through evidence how a hunger strike was disruptive, something the U.S. military has not needed to prove about Guantanamo.
The third member of the court, Judge Stephen Williams, said it may be asking too much to ask judges to delve into prison policy. "That seems an astonishing judgment to put onto the courts," he said.
(Additional reporting by Jane Sutton in Miami; Editing by Howard Goller and Douglas Royalty)