Don’t Let Them Free and Don’t Let Them Die

Why the Guantanamo Bay Hunger Strikers Cannot Be Released or Allowed To Starve

by Evan Bernick

It is a story of ongoing pain, humiliation, and justice denied. In an April 13, 2013 op-ed in the New York Times, Samir Naji al-Hasan Moqbel, a citizen of Yemen who has been held at Guantanamo Bay since 2002, describes the reasons why he and several other fellow detainees are refusing food, and how they have been treated over the course of their hunger strike. As he tells it, the detainees at Guantanamo have been held for extended periods of time (Samir has been detained for eleven years and three months) without being charged with a crime. He and his fellow strikers are refusing food in protest of this indignity. They are being painfully force-fed, over their objections, by officials who will not let them seriously endanger their health through starvation.

Guantanamo Hunger StrikeWhat should be done with Samir and his fellows?  As grim as their suffering appears to be, there is no alternative to keeping them detained and force-feeding them if they continue to strike. Samir has fully exercised his legal rights, and he and his fellows should be forced to face justice under our laws.

Samir is being detained as an unlawful enemy combatant. The capture, detention, and trial of unlawful enemy combatants is a proper incident to war. Samir recounts that he was accused of serving as a bodyguard for Osama Bin Laden. Although he denies this accusation, it would, if true, make his capture, detention, and eventual trial an important incident of the AUMF—the 2001 statute that authorized the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” A bodyguard for Bin Laden would have aided both Bin Laden and Al-Qaeda.

According to the laws of war, an enemy combatant can be held as long as hostilities last. While it is unclear just how long the U.S. will be fighting the subjects of the AUMF, the Supreme Court held in Hamdi v. Rumsfeld that enemy combatants are not entitled to be released from detention after five years, ten years, eleven years and three months, or any specific time period. However, in Boumediene v. Bush, the Court held that enemy combatants can successfully challenge their combatant status by filing a petition for habeas corpus in federal district court.

Samir has filed a writ of habeas corpus and thus has fully exercised his legal rights to challenge his detention. He cannot demand that any more be done until a decision is reached. Many of detainees have submitted petitions and are waiting for decisions. The fact that Samir and some of his fellow detainees are willing to suffer a great deal to protest their detention should not earn them preferential treatment.

But even if they have not suffered any legal injustice, one cannot read Samir’s gut-wrenching description of force-feeding without wondering whether the hunger strikers should be allowed to continue their protest.  Samir says that he has been tied hand-and-foot, denied toilet access, and had tubes inserted painfully into his nostrils. He says that he would not wish such treatment on anyone. He says that he would rather starve than continue to endure this treatment.

Why not allow Samir and those similarly minded to starve? Generally, individuals should be free to act in ways that jeopardize their own health. Individuals are the owners of their own lives and must be left free to act in ways that court death, so long as they don’t threaten the lives of others. The proper role of government is to protect individuals from physical force that is initiated by others, because such force threatens their ability to determine their own destiny. But when state actors exercise force solely to prevent individuals from harming themselves, they initiate force and threaten self-ownership. Individuals become, in effect, state property, if they can only live or die by the state’s leave.

However, enemy combatants should not have the freedom of action that a given state’s citizens have under ordinary circumstances. When someone is suspected of violating the rights of a state’s citizens or has been judged a rights violator, the state can exercise force against that person—force that it could never exercise under ordinary circumstances. It can detain them and, ultimately, punish them under its laws. The punishment should be informed by the gravity of the crime, not the preferences of the criminal.

Samir and his fellow strikers are such people. Samir asserts that he is an innocent man, but he is not entitled to that presumption. If he and his fellow strikers have been determined to be unlawful enemy combatants, they should be treated accordingly until they successfully challenge that determination. To give these men the freedom to jeopardize their health would be to risk allowing them to escape the punishment they deserve. What they would personally prefer doesn’t matter.

Samir’s account of ongoing torment is painful to read. But he can’t be given what he wants, and neither can his comrades. The hunger strikers can’t be skipped to the front of the line of detainees who are in a similar position. Until and unless their habeas petitions are granted, they must be treated like any other unlawful enemy combatants. If the only way to make sure that they are properly punished is by force-feeding them, that is what should be done.


Evan Bernick is a Legal Associate at a DC think tank and a Legal Fellow with the Becket Fund for Religious Liberty. 

One Comment

  1. Hungry for Justice says:

    “Samir has fully exercised his legal rights, and he and his fellows should be forced to face justice under our laws.”

    “To give these men the freedom to jeopardize their health would be to risk allowing them to escape the punishment they deserve.”

    Religious Liberty man speaks with forked tongue. #matthew16:23

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