External Affairs

Hunger-Striking Detainee Tests Obama’s Will to Close Guantánamo

Reprinted with permission from The Intercept

Gitmo Bay. Cleared for release... yes? Credit: medilldc/Flickr, CC BY 2.0

Cleared for release… yes? Credit: medilldc/Flickr, CC BY 2.0

Since the age of 23, Tariq Ba-Odah has been detained at the U.S. prison facility at Guantánamo Bay. Never charged with a crime, Ba-Odah went on hunger strike eight years ago to protest his indefinite detention, as well as the brutal treatment he is alleged to have suffered at the hands of his captors.

Now a 36-year-old man, Ba-Odah weighs less than 75 pounds. Despite having been cleared for release by a multi-agency review board in 2009, he remains behind bars with his release still a subject of legal wrangling by the Obama administration. In response to his rapidly deteriorating physical condition, his lawyers recently filed a petition for habeas corpus, citing the U.S. government’s legal obligations to free seriously ill prisoners.

Last week, Justice Department lawyers asked for an extension in the deadline to respond to his habeas filing. A New York Times article published at the time cited an interagency conflict between the State Department and Department of Defense as contributing to Ba-Odah’s continued legal predicament. Anarticle published Monday by the Daily Beast, citing anonymous White House sources, purported to explain the nature of this dispute further, suggesting that Defense Secretary Ash Carter is refusing to sign release orders for the 52 Gitmo prisoners who have been cleared for repatriation or resettlement, not wanting to take responsibility for their possible future actions.

Both the Department of Justice and the Department of Defense declined to comment to The Intercept on the specifics of Ba-Odah’s case, while the DoD stated, “We are taking all practicable steps to reduce the detainee population at Guantánamo. … Unfortunately, this process can be slowed unnecessarily by burdensome legislative provisions.”

Omar Farah, a lawyer with the Center for Constitutional Rights, which is representing Ba-Odah, says that the responsibility for his continued incarceration lies with President Obama. “For so long the president has complained that Congress has tied his hands on Guantánamo, but this is a case where he could directly and unilaterally instruct the Department of Justice to not contest Ba-Odah’s habeas petition and he has refused to do it,” Farah says. “We will know how serious Obama is on Friday when the Department of Justice either agrees not to contest Ba-Odah’s case, or fights on Obama’s behalf to hold him at Guantánamo even longer despite his desperate condition.”

The Pentagon Monday said that it was planning to submit a proposal for the closure of Guantánamo for congressional approval, following the August recess. Any such proposal, however, would have to be predicated on rapidly releasing prisoners, like Ba-Odah, who have already been cleared for release. The dispute over Ba-Odah calls into question this plan.

The heart of the dispute in Ba-Odah’s case is believed to be his physical deterioration, which is the result of a hunger strike. Like several other Guantánamo prisoners, Ba-Odah has refused to eat or drink, in protest of his continued indefinite detention. In response, the government has for years subjected him to a force-feeding procedure that it maintains is both healthy and medically appropriate. The government has also fought tenaciously to keep it from public scrutiny.

Last month, a frustrated judge ordered the government to release video footage of the feeding sessions, characterising repeated government appeals on this issue as “frivolous.”

There is precedent for releasing prisoners in grave medical condition. In 2013, Ibrahim Othman Ibrahim Idris was released from Guantánamo on medical grounds, after the government chose not to oppose a habeas petition by his lawyers that cited his “severe long-term mental illness and physical illness.” However, to do the same in Ba-Odah’s case would amount to an admission by the government that its controversial force-feeding program is ineffective at keeping hunger-striking prisoners in proper physical health. Despite force-feeding Ba-Odah for years, he is wasting away, with doctors stating that his body is cannibalising its own internal organs for sustenance.

Farah says that on his last visit to see him in July, Ba-Odah was in “disastrous” physical condition, and that continued government contestation of his habeas petition could end up being tantamount to a death sentence. “The government has maintained that it can maintain the health of hunger-striking prisoners by force-feeding them, something that Ba-Odah’s condition clearly disproves,” Farah says. “His case in particular brings to light some of the darkest failings of Guantánamo.”

Reprinted with permission from The Intercept