The U.S. Department of Justice has argued to a federal judge that a hunger-striking Guantánamo inmate who weighs just 74 pounds "is not sick enough" to be hospitalized and that his petition for release must be rejected because, if granted, it could encourage other detainees to also starve themselves to near death in protest of their endless detention at the offshore prison.
According to new reporting by the Miami Herald's Carol Rosenberg, citing a recently unsealed court filing, the DOJ argued that Tariq Ba Odah, who has been held at the U.S. Navy-run prison for over 13 years without charge or trial, should be held longer even as his weight has dropped from 135 pounds, when he first started his strike in 2007, to approximately 74 pounds as of July 15 — just 56 percent of his ideal body weight.
Ba Odah is among those who have been force-fed as a result of their multi-year hunger strike. Doctors and human rights experts have called the force-feeding process a form of torture.
In June, Rosenberg reports, Ba Odah's lawyers wrote to a fedeal judge that their client "teeters on the precipice of death — his body struggling, but ultimately failing, to properly absorb the liquid nutrients he is being force fed."
The DOJ, however, countered by saying the man was solely responsible for his condition, brought about by his voluntary refusal to eat. The government cast his "underlying medical condition" as "self-inflicted" and said his "current possible consequences are all due to his seven-year hunger strike."
Citing the court filing, Rosenberg continued:
Justice Department lawyers argued that a release order was not legally justified and could cause other captives to try to starve themselves at the remote detention center.
“Granting petitioner’s requested relief could have the unintended consequence of encouraging similar actions by other detainees to effectuate court-ordered release,” U.S. government attorneys wrote in a footnote on page 27 of their brief filed Aug. 14 and released by the court Monday.
Ba Odah is the public face of a long-running hunger strike at the Pentagon prison, whose commanders refuse to disclose how many of its 116 detainees are currently protesting by refusing to eat. In the summer of 2013, more than 100 captives were on hunger strike and 46 of them were designated for restraint-chair forced-feedings by U.S. Navy medical staff.
At the time the DOJ's filing was submitted, the Center for Constitutional Right's Omar Farah, who represents Ba Odah, slammed the government for its continued mistreatment of his client and the overall secrecy surrounding the treatment of those on hunger strike.
The government's action in the case, said Farah in a statement, "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."
Calling the government's secrecy surrounding the government's petition against Ba Odah unnecessary, Farah continued by saying "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."
Reporting on the case of Ba Odah earlier this month, The Intercept's Murtaza Hussain discussed some of the deeper dynamics that have left the 30-year-old Yemeni national under lock and key despite never being convicted of a crime and the fact that he is now among more than fifty other detainees who have received approval to be release to a foreign country:
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, characterizing 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 cannibalizing 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."