Guantanamo's Legal And Medical Challenges

By César Chelala and Alejandro Garro

06/30/06 "Information Clearing House" -- New York -- The U.S. Supreme Court ruling that Guantánamo’s military commissions violate U.S. law and the Geneva Conventions governing the treatment of war prisoners is a strong rebuke to the Bush Administration policies on treatment of detainees. From the legal and human rights point of view, it is one of the most significant decisions of its kind since WWII.

One of the arguments for denying constitutional protection to the Guantánamo prisoners rests on the allegation that Guantánamo is off American soil. Yet, respect for basic human dignity fostered by the Bill of Rights is not limited by nationality and territory. And if the U.S. Constitution were not enough, international human rights law (customary and treaty-based), extends such protection.

The U.S. Supreme Court decision follows one by a British judge, who recently allowed three British prisoners at Guantánamo to pursue legal action for their release. Judge Andrew Collins’ position on this issue is in line with that of the European Parliament that in Strasbourg, France, which also condemned the treatment of prisoners at Guantánamo and renewed its calls for the detention center to be closed.

A U.N. report confirms that prisoners were subjected to cruel and inhuman treatment, including forced feedings to hunger strikers, painfully jabbing food tubes through their noses. These practices amount to torture, according to the International Committee of the Red Cross (ICRC) and Physicians for Human Rights has consistently stated that force feeding of hunger strikers violates standards of medical ethics.

Many of the responses from commanding officers of the U.S. army have been ethically troubling. General Bantz J. Craddock, head of the United States Southern Command, admitted that detainees had been strapped into “restraint chairs” and force-fed. Detainees would urinate or defecate on themselves, often vomiting and bleeding due to the forced insertion of the feeding tubes. General Craddock indicated, however, that the hunger strikers had in fact been indulged to the point that they had been allowed to choose the color of their feeding tubes.

Equally troubling from the medical and ethical perspective is the collaboration of US Army doctors in the torture of prisoners. In 2004, Dr. Robert Jay Lifton reported “increasing evidence that doctors, nurses and medics have been compliant in torture and other illegal procedures in Iraq, Afghanistan and Guantánamo Bay.” The ICRC charged that US interrogators engaged the participation of medical personnel in what the committee called “a flagrant violation of medical ethics.”

Doctors’ participation in torture can take several forms, from assessing a prisoner’s health status before torture is initiated to determining how much longer torture may be continued without immediate danger to the prisoner’s life. Complicity also includes reviving torture victims who have fainted from pain, and active participation in the interrogation process. Many prisons in those countries have medical and paramedical personnel on their staffs, and so is likely to be the case in the dungeons of Guantánamo Bay.

Doctors aiding and abetting torturers confront the medical profession with one of its most crucial ethical dilemmas, which the Declaration of Tokyo, agreed in 1975 by the World Medical Association, sought to confront with a firm ethical prescription: “The doctor shall not countenance, condone or participate in the practice of torture or cruel, inhuman or degrading procedures, whatever the offence of which the victim of such procedures is suspected, accused or guilty, and whatever the victim’s beliefs or motives, and in all situations, including armed conflict and civil strife.” For the medical profession the challenge is not to collaborate with torture.

The U.S. Government should not only close Guantánamo, but it should seriously investigate and prosecute all allegations of torture and cruel and inhuman treatment of Guantánamo inmates –not because of the international outcry it has provoked, but because it is the right thing to do.

How to face the Guantánamo issue offers the United States a chance to live up to the ideals of respecting and ensuring human dignity framed in the Bill of Rights that are part and parcel of the U.S. Constitution.

Dr. César Chelala is an international public health consultant and a co-winner of an Overseas Press Club of America award. Alejandro M. Garro teaches Comparative Law at Columbia University and is a Senior Research Scholar of its Parker School of Foreign and Comparative Law.

Click on "comments" below to read or post comments - Click Here For Comment Policy

|