Al Jazeera America – 2015-08-17 13:36:48
US Will Not Release Hunger-striking Guantanamo Detainee
Al Jazeera America
(August 15, 2015) — Lawyers from the US justice department have blocked a legal request, made on health grounds, to release a Guantanamo Bay detainee who weighs just 34kg [75 pounds — EAW] after an eight-year hunger strike. Yemeni detainee Tariq Ba Odah, 36, has been force-fed by nasal tube since he stopped eating solid food in 2007. His weight loss over the last 18 months has raised fears among his lawyers that he could die of starvation. Pentagon officials said he was receiving proper care.
US intelligence and military officials cleared Ba Odah for release six years ago from the Guantanamo detention centre, where 116 men are imprisoned on a US navy base in Cuba, 14 years after the September 11, 2001 attacks.
The case of Ba Odah, who was transferred to Guantanamo in 2002, has created divisions within the US administration. Officials from the Defence Department, which administers the centre, called for government lawyers to oppose a habeas corpus petition, which Ba Odah’s lawyers filed in June, requesting his release on health grounds.
Pentagon officials said transferring Ba Odah could create an incentive for future hunger strikes. State Department officials supported his release.
Omar Farah, Odahâ€™s defence lawyar, said the decision indicated that President Barack Obama is unable to control growing divisions in his administration and achieve his goal of closing the Guantanamo detention facility before he leaves office in 2017.
Farah, said the filing, which was sealed, reflected the White House’s inability to develop a coherent approach to transfer Ba Odah and 51 other detainees cleared for release.
“It is a transparent attempt to hide the fact that the Obama administration’s inter-agency process for closing Guantanamo is an incoherent mess,” said Farah, a laywer with the Centre for Constitutional Rights. “And it is plainly intended to conceal the inconsistency between the administration’s stated intention to close Guantanamo and the steps taken to transfer cleared men.”
Amnesty International USA also condemned Friday’s decision. Lawyers specialising in national security said they were unable to think of a case where the government had filed a sealed challenge to a habeas petition.
A Justice Department representative said the filing was sealed because it contained medical information. The filing was not intended to slow the transfer of Ba Odah out of Guantanamo and a public version of the filing would be released, the representative said.
Defense Secretary Waiver
Lawyers for Ba Odah, who was captured by the Pakistani Army along the Afghan border and was accused of receiving weapons training in order to fight with the Taliban, said Obama could have instructed government lawyers not to oppose the habeas petition.
There are as many as a half dozen other habeas petitions that the government could choose not to contest.
The lawyers said Ba Odah was a test case for how the president could transfer more of the 52 detainees who have been cleared from release but remain in Guantanamo. Such releases avoid a congressionally mandated requirement that the Secretary of Defence personally sign a waiver approving each transfer.
The signed waiver requirement, and intense opposition to releases from top military commanders, has resulted in successive defence secretaries being slow to transfer detainees cleared for release.
Obama has said he is determined to close the camp, which has been condemned internationally because of the harsh treatment of detainees, but Republicans in Congress have passed laws preventing the president from transferring any inmates to US soil.
Guantanamo Hunger Striker Nearing Death
Jenifer Fenton / Al Jazeera America
(August 12, 2015) — Tariq Ba Odah is 1.62 metres tall [5.3 feet tall — EAW], but weighs only 33.7 kilogrammes.
He does not want to die. But in peaceful protest of his detention, Ba Odah has not eaten voluntarily since 2007, maintaining one of the longest-running hunger strikes at the US prison in Guantanamo Bay, Cuba. For the 36-year-old man, these may be his final days.
Ba Odah was picked up in Pakistan and turned over to the US, who sent him to Guantanamo, where he has been held since 2002. Ba Odah does not know why he was initially arrested by Pakistani authorities, according to the Center for Constitutional Rights (CCR), and according to his lawyer, he has never been charged with a crime.
If his body can take it, Ba Odah is force-fed twice a day. He is strapped down and liquid is pumped through his nose into his stomach, according to his lawyer, Omar Farah. But the force-feeding is not working. “His body appears unable to properly absorb calories or micronutrients,” according to Farah.
Joseph Margulies, counsel of record in the Supreme Court case Rasul v Bush, which involved detentions at Guantanamo Bay, also described Ba Odah’s deteriorating health situation, writing that medical experts believe “his body has begun to cannibalise itself to survive, slowly consuming his organs”.
When the lawyer last visited his client, Ba Odah barely looked human, remembered Farah. Ba Odah lifted his prison smock to reveal a rail-thin body, just “skin and bones”, and almost no muscles or tissues.
Farah finds it “shocking” that the US government is not “doing everything in its power to treat him”, which, in Farah’s opinion, would involve giving him an immediate transfer from the prison.
In June, Farah, a staff attorney at the CCR, asked a federal judge to order his client’s release by reason of his progressive physical and psychological deterioration. Gravely ill prisoners can be legally repatriated, or sent to another country willing to receive them, argued Farah.
There is precedence for such a transfer. Sudanese detainee, Ibrahim Othman Ibrahim Idris, whose lawyers argued had suffered from mental and physical illness, was ordered to be released by a judge in December 2013 and transferred to Sudan.
In Ba Odah’s case, the US Department of Justice (DoJ) has asked — for the third time — to extend its response to Ba Odah’s request until August 14, 2015. The reason for requesting the extension, the DoJ said, is that it needed to “further consider internally its response to petitioner’s motion”.
Ba Odah, who is a citizen of Yemen and a resident of Saudi Arabia, was unanimously cleared for transfer more than five years ago by six federal agencies with a stake in national security.
Al Jazeera understands that the US Department of State would like to see Ba Odah released. However, The New York Times has reported the US Department of Defense (DoD) is concerned that releasing Ba Odah “would create an incentive for other detainees to stop eating”.
The DoD would not comment to Al Jazeera on the case.
Possibility of Death
Farah has pointed out that there is possibly a separate medical condition that is affecting Ba Odah and could be part of the reason for his poor state of health, his weight, and the reason behind his body’s inability to absorb nutrients. “No other conclusion is viable, unless one presumes the government intends to maintain him at just 56 percent of his ideal body weight while he is on hunger strike,” stated Farah.
Yet, the fact that he remains in Guantanamo and has no access to proper medical care and expertise to diagnose his condition puts his life in danger.
He is kept in solitary confinement because his behaviour is viewed as “noncompliant”. In solitary confinement, he has almost no human contact, and although he is allowed to go outside for a few hours a day, he is usually too weak to take advantage of the opportunity.
His state of health is so precarious that he is vulnerable to the slightest dangers in the environment around him. A cold, a fever, a small injury — like one sustained from a fall — could overwhelm his system, leading to possible death, according to Farah. Yet Ba Odah is defiant.
“Protesting by hunger striking is the only way to communicate [to those with freedom] what it means to be unjustly detained, to be put in a cell for over a decade without charge,” Ba Odah has explained of his situation, according to CCR.
Regardless of whether Ba Odah’s release could inspire other prisoners to starve themselves in hopes of getting out of Guantanamo, the DoD’s position is “breathtaking in its moral bankruptcy”, wrote Margulies.
“Anyone who supposes the Obama administration — at least in the particulars of its counterterror policy — is morally superior to the Bush administration should reflect on [the] DoD’s position.”