By David Ingram
WASHINGTON, Feb 11 (Reuters) - A U.S. appeals court declined on Tuesday to halt the forced feeding of hunger strikers in Guantanamo Bay but ruled that the prisoners have the right to sue over the procedure and other aspects of how the U.S. military treats them.
The 2-1 decision by a panel of the U.S. Court of Appeals for the District of Columbia Circuit reversed two decisions by lower court judges. Those judges ruled last year that Congress had stripped them of the ability to hear lawsuits about conditions at the U.S. Navy military prison in Cuba.
Human rights advocates and many doctors call forced feeding a violation of personal liberty and medical ethics. Designed to keep hunger strikers alive, the procedure involves feeding them liquid meals via tubes inserted into their noses and down into their stomachs.
President Barack Obama has defended the practice at Guantanamo, telling a news conference last year, "I don't want these individuals to die."
Last year, during a Guantanamo hunger strike in which as many as 46 of 166 inmates were force-fed at least some of their meals, several of them sued. They included Shaker Aamer, a Saudi detainee with family in London, and Algerian captive Ahmed Belbacha. Both were taken prisoner by U.S. forces after the invasion of Afghanistan in 2001 and have since been cleared for transfer out of Guantanamo.
In rejecting the strikers' request for a preliminary injunction, the appeals court said it was bound by a series of U.S. court precedents that give wardens wide leeway to run prisons as they see fit as long as their policies relate to "legitimate penological interests." Keeping inmates alive counts as an interest, the court said.
"Absent exceptional circumstances prison officials may force-feed a starving inmate actually facing the risk of death," Judge David Tatel wrote for the appeals court. He added elsewhere in the opinion, "This is a court of law, not an arbiter of medical ethics."
He and another judge, Thomas Griffith, rejected a separate argument from the Obama administration that a 2006 federal law, the Military Commissions Act, barred civilian courts from hearing suits about Guantanamo living conditions.
Suits about conditions fall under the writ of habeas corpus, the centuries-old right in English law to challenge unlawful detention, Tatel wrote. He cited a 1970 court ruling about a jail inmate in Washington, D.C., who was allowed to bring allegations that he was beaten. "We cannot now disregard this holding," he wrote.
A third member of the appeals panel, Judge Stephen Williams, said the detainees' suits should be dismissed. He wrote in a dissent that the writ of habeas corpus cannot be enlarged "to encompass a novel theory in the face of such clear congressional intent" in the 2006 law.
Reprieve, a London-based prisoners' rights group that represents several Guantanamo hunger strikers, said the ruling would enable lawyers to go on challenging forced feeding in the lower court, the U.S. District Court in Washington, D.C.
"This decision puts a large crack in the edifice of lawlessness that has surrounded Guantanamo Bay since 2002," Jon Eisenberg, a lawyer who argued the case for Reprieve, said in a statement.
The U.S. Justice Department, which represents the military in civilian courts and sought an end to the lawsuits, was reviewing the opinion, spokeswoman Allison Price said.
Guantanamo detainees have been on hunger strike to protest their continued detention, some of them without charges. There are 155 prisoners at Guantanamo now, but the military has stopped saying how many are on hunger strike, said Colonel Gregory Julian, a spokesman.
The case is Shaker Aamer, et al, v. Barack Obama, et al, U.S. Court of Appeals for the D.C. Circuit, No. 13-5223. (Editing by Howard Goller and Tom Brown)