Recycling Repudiated Bush-Era Arguments, Obama Administration Seeks To Deny Humanitarian Release Of Gitmo Prisoner

October 15, 2015
Constitution in Crisis :: BORDC/DDF October 2015 Newsletter
October 19, 2015

According to the Centers for Disease Control, the mean weight for a ten-year old boy is 74.2 pounds. Tariq Ba Odah weighs roughly the same amount. He is 36. For an adult male to weigh so little is a medical anomaly and occurs usually only in end term cancer or AIDS patients. Ba Odah, however, has been imprisoned at Guantánamo since February 2002. Even though he was cleared for transfer five years ago, he remains detained unsure when—if—he will ever leave. As part of a protest against his detention Ba Odah has maintained a hunger strike for eight years. As a result, he has been repeatedly force fed, oftentimes when restrained, something that detainees and their supporters have argued constitutes torture. In spite of being force fed twice a day Ba Odah still lost 56% of his initial body weight and is suffering from the extreme malnourishment that force feeding is allegedly meant to prevent.

Under international humanitarian law, as well as the U.S. army regulations, when a prisoner of war is severely ill they must be repatriated for humanitarian reasons. Ba Odah’s attorneys at the Center for Constitutional Rights filed a habeas petition asking for the government to release Ba Odah without delay. Multiple medical experts who noted that at Ba Odah’s weight he was very likely on the verge of death and that if he did not receive proper medical care he would very likely die in U.S. custody supported CCR’s petition. Amazingly, the U.S. government, even though Ba Odah has already been approved for release, opposed this motion. As a result oral arguments in Ba Odah v. Obama took place in U.S. District Court on October 15, 2015.

CCR’s arguments focused on the desperate state of Ba Odah’s health. The government made a number of arguments as to why Ba Odah should not be released. They argued that none of CCR’s medial experts had examined Ba Odah nor had they examined his medical records and therefore none of their conclusions were within a reasonable degree of medical certainty. As CCR noted the government had denied them access to Ba Odah’s medical records, as well as their medical experts access to Ba Odah himself. Furthermore, CCR asserted that certain medical facts lend themselves to a conclusion. If a “good Samaritan dropped Ba Odah off at the George Washington hospital emergency room” a doctor upon noting Ba Odah’s weight and seeing his physical state—visible bones and veins—would conclude that he was in a serious medical condition. When the judge pressed CCR as to why they had not gone to court to seek Ba Odah’s medical records counsel for CCR cited the urgency of Ba Odah’s medical condition.

Counsel for the government also argued that Ba Odah’s medical situation was self-inflicted—he had gone on hunger strike and had refused to cooperate with military doctors—and thus was barred from relief. Counsel for CCR, however, pointed out that the government had been force feeding Ba Odah 2,000 calories a day and he was still extremely malnourished. In his current state, merely resuming eating solid foods, which may not even be medically possible, would not remedy the health effects of extreme malnourishment. Since the government had barred CCR access to Ba Odah’s medical records it is also difficult determine exactly what is going on and why he is at such a low weight if he is consuming 2,000 calories a day. Finally, the counsel noted that the government’s argument that releasing Ba Odah would further encourage hunger strikes had no merit. The first hunger strikes at Guantánamo began in 2002 and they are based on factors independent of a specific motion being heard in D.C. Circuit Court.

The most shocking argument’s made by the U.S. government though was that army regulations, as well as the provisions under the Geneva Conventions calling for humanitarian repartition did not apply to Ba Odah, because he was an enemy combatant, not an enemy prisoner of war, and had been found by the Executive to have been a member of al-Qaeada and the Taliban, “an organization and a militia” not signatories of the Geneva Conventions. If this argument sounds familiar, that is because it is the exact same argument made by the Bush administration that was rejected by the courts almost a decade ago when the Supreme Court found that laws of war were part of U.S. domestic law and were applicable to Guantánamo detainees.

Even Judge Hogan seemed somewhat surprised asking the counsel for the government wasn’t there binding precedent to the contrary and were they not really trying to re-argue lost cases. The counsel for the government asserted they were not, and the only thing that the courts had found in the past was that Common Article 3 of the Geneva Conventions (which deals with “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties”) applied to “enemy combatants.” What this meant, according to the counsel for the government, was that the government had an obligation to treat enemy combatants humanely, but no obligation to follow any of the other provisions of the Geneva Conventions.

While it is not certain when Judge Hogan will make a ruling on Ba Odah’s habeas petition he made several general remarks after both sides had argued. He mentioned that he had been hearing Guantánamo since the D.C. District Court was first granted review over Guantánamo detainment and that he was disappointed neither the executive nor the legislator had done more to address the issue. He mentioned that there were still 150 people at Guantánamo many of them not charged with any crime. He also expressed further skepticism of the government’s argument about the Geneva Conventions, but did seem more sympathetic to the argument about Ba Odah’s serious medical condition being self-inflicted.

Ba Odah v. Obama highlights several important things. First, after thirteen years Guantánamo continues to be an urgent issue with individuals having languished there without ever knowing if they will leave. Second, it is highly distressing that the Obama Administration would fight the humanitarian release of a detainee who had already been approved for release. What makes it even more distressing is that in order to do so the Obama Administration is resurrecting some of the most reactionary arguments of the Bush administration. Arguments that were long believed to have been thoroughly repudiated