In a maneuver blasted by constitutional rights experts as "rare and unusual," the Obama administration late on Friday submitted a long-awaited filing urging a federal judge not to order the release of a hunger-striking prisoner at Guantánamo Bay, whose condition has been described by his lawyers as deteriorating rapidly.
The filing was kept under seal, though the Justice Department said a public version will be released later.
According to the Guardian's Spencer Ackerman, "U.S. officials said the objection to freeing Tariq Ba Odah, who is undernourished to the point of starvation, and the decision to challenge his legal gambit outside of public view, are indications that the Obama administration will fight tenaciously to stop detainees from seeking freedom in federal courts, despite Barack Obama's oft-repeated pledge to close Guantánamo."
Thirty-six-year-old Ba Odah has been held at Guantánamo since he was 23, and has been on hunger strike for eight years in protest of his indefinite detention. He has never been charged with a crime and he was cleared for release by a multi-agency review board in 2009. He has been subjected to force-feeding and he reportedly weighs about 75 pounds.
The Center for Constitutional Rights (CCR), which filed the motion requesting Ba Odah's immediate release on medical grounds, said the Obama administration's strategy is"plainly intended to conceal the inconsistency between the administration’s stated intention to close Guantánamo and the steps taken to transfer cleared men."
The full statement from CCR reads:
Because today’s filing is under seal, we cannot comment on its substance. However, we are deeply disappointed by this secret filing. It is a transparent attempt to hide the fact that the Obama administration’s interagency process for closing Guantánamo is an incoherent mess, and it is plainly intended to conceal the inconsistency between the administration’s stated intention to close Guantánamo and the steps taken to transfer cleared men. The administration simply wants to avoid public criticism and accountability.
It is also unnecessary. There is nothing sensitive about this pivotal moment that needs to be withheld from the public. Mr. Ba Odah’s grave medical condition is not in dispute. Given that he has been cleared since 2009, there is no dispute about whether he should be approved for transfer. All the president has to decide is whether to exercise his discretion not to contest the motion and release Mr. Ba Odah so that he does not die.
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Reporting on Ba Odah's case for The Intercept on Thursday, Murtaza Hussain wrote:
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.
Responding to the Justice Department's sealed filing on Friday, Naureen Shah, director of Amnesty International USA's Security and Human Rights Program, said the case was a "bellwether for what's to come and a blow to President Obama's legacy."
"Tariq Ba Odah may die at Guantanamo without ever having been charged with a crime," she said. "If that happens, it will be because the White House was unwilling to step up and make good on President Obama’s pledges to close Guantanamo."
The New York Times reported earlier this month that Defense Department officials "say that not contesting Mr. Ba Odah’s lawsuit would create an incentive for other detainees to stop eating, too, causing problems at the military-run prison."
Of these alleged concerns, Shah said: "That’s an outrageous reason for depriving anyone of their liberty and it has no basis in international law."
"President Obama has long said that his hands are tied by Congress on Guantanamo," Shah added. "But Ba Odah's release was in his power to ensure. President Obama has effectively decided to continue detaining a desperately ill man that the government has never publicly indicated any intention of charging with a crime."
There is precedent for releasing prisoners in grave medical condition, The Intercept pointed out this week. In 2013, Ibrahim Othman Ibrahim Idris was released from Guantánamo on medical grounds, after the government chose not to oppose a 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," Hussain wrote. "Despite force-feeding Ba-Odah for years, he is wasting away, with doctors stating that his body is cannibalizing its own internal organs for sustenance."