Attorneys for a 74-pound Guantanamo prisoner who is "on the precipice of death" according to three medical experts today urged a federal court to order his release despite the Obama administration's opposition. Tariq Ba Odah, who is from Yemen but grew up in Saudi Arabia, has been held without charge since 2002 and was cleared for release in 2009. Ba Odah's case has, in many ways been at the center of the inter-agency disputes over the future of Guantanamo.
In its opposition brief, the Obama Justice Department cited a sworn declaration by Guantanamo's Senior Medical Officer (SMO) that Ba Odah's condition is "dangerous" but "clinically stable" and argued, above all, that the entire question of whether Ba Odah should be released because of his declining health is beyond the power of a federal court to review.
Medical experts weighed in anew: "A consistent weight range of 74 pounds is certainly not a sign of clinical stability; rather it is the opposite, as Mr. Ba Odah faces persistent, serious medical risk even without losing any more weight," wrote Dr. Sondra S. Crosby, Associate Professor of Medicine and Public Health at the Boston University School of Medicine. "Were Mr. Ba Odah to lose more weight...there will likely be very few remaining medical options available to spare his life."
Guantanamo's Senior Medical Officer has indicated that if Ba Odah loses any more weight, he may be hospitalized in the prison's "Detainee Acute Care Unit" and subject to slower, around-the-clock enteral feeding. The officer's declaration admits that Ba Odah has not been subject to routine medical examinations, such as an endocrine system assessment, blood-work, and metabolic panels, and offers no explanation for the fact that although he receives up to 2600 calories a day through Ensure supplements, he remains at 74 pounds and seems unable to gain weight.
"[There] is no medical support for delivering calories to a patient via nasogastric tubes for an extended period of time - certainly not for the over 8 years that Mr. Ba Odah has reportedly been on hunger strike," wrote Dr. Mohammed Rami Bailony, Medical Director of Enara Health Group, P.C. "Likewise there is no evidence to support the SMO's plan of continual enteral feeding of Mr. Ba Odah should he lose more weight. Frankly, as an emergency intervention plan, continual enteral feeding is shockingly inadequate and finds no support in the medical literature that I am aware of."
Ba Odah's attorneys had argued that due to his deteriorating condition he is entitled to release under the Geneva Conventions and section 3-12 of Army Regulation 190-8, which allows for the humanitarian release and repatriation of gravely ill prisoners. The Justice Department rejected both claims, arguing that the court does not have the authority to consider whether Ba Odah meets the standards for medical repatriation under Regulation 190-8 and that the regulation does not even apply because Ba Odah's condition is "self-inflicted" and because, in any event, he does not have prisoner-of-war status.
"It's unnerving to see DOJ essentially retracing the Bush-era end-run around the Geneva Conventions by embracing the very "enemy combatant" determinations that President Obama once disavowed and the Supreme Court roundly criticized in Boumediene v. Bush," said Center for Constitutional Rights Attorney Omar Farah. "If the president cannot compel the agencies of his own administration to stand down in this case in order to pave the way for the urgent release of a dangerously weak 74-pound man who was cleared for release more than six years ago, then he will almost certainly fail to close the prison in what remains of his second term."
The DOJ argues that even if Regulation 190-8 did apply to Ba Odah's case, he would not qualify for medical repatriation because he has not accepted all of the medical treatments prison doctors have prescribed. Dr. Jess Ghanam, one of the medical experts who submitted declarations in Ba Odah's case, notes that "medical ethical guidelines are explicit that when a patient expresses mistrust in their caregivers - either directly or through their behavior - it becomes the doctor's professional (indeed moral) responsibility to transfer that patient to another competent, trusted doctor who can properly treat the patient." In their declarations, Drs. Ghannam and Crosby both observe that Ba Odah's relationship with the Guantanamo medical staff is severely compromised by the eight years of force-feeding he has experienced.
Read today's filing and learn more about Tariq Ba Odah's case here.
