Justice Department lawyers argue in a filing unsealed Monday that a 74-pound Guantánamo hunger striker is not sick enough to require hospitalization or continuous tube feedings and that the Yemeni captive alone bears responsibility for any adverse health consequences in U.S. military custody.
The 49-page filing asks U.S. District Judge Thomas F. Hogan to refuse the habeas corpus petition of 13-year detainee Tariq Ba Odah and to reject his bid for a federal court release order. Ba Odah has been on a hunger strike since 2007. He is among 52 Guantánamo detainees who are approved for release to a foreign country with security assurances.
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.
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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.
The filing described the efforts of Ba Odah, a 5-foot, 4 1/2 inches tall man in his 30s, to thwart the military’s system of monitoring what it calls “nonreligious fasters,” including using sleight-of-hand within his cell to portray himself as drinking a nutritional supplement — from an empty decoy cup. It also said he “occasionally purged his enteral feedings,” an apparent reference to throwing up after he is released from a restraint chair. He also sometimes accept meals from guards, portraying himself as not fasting, only to flush the food down his cell toilet.
His lawyers, in a June 25 filing, argued that unless he was released to “urgent, sophisticated medical care, Mr. Ba Odah may well die in U.S. custody — and possibly in a period of months.” It suggested he go to Saudi Arabia, where he has family.
Both the government’s and Ba Odah’s lawyers agree in their filings that Ba Odah has been a hunger striker since February 2007. That year, he weighed 133.5 pounds. On July 15, he weighed 74 pounds — 56 percent of his ideal body weight.
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.”
While it said his health was “poor,” Navy doctors do not consider him sick enough for hospitalization in the prison’s “Detainee Acute Care Unit” where, according to the prison’s Senior Medical Officer, he’d be confined to a bed with a permanent feeding tube and “a scale under him.”
The doctor also Ba Odah was healthy enough to be “observed walking without difficulty, speaking clearly and fluently ... grooming, cleaning, dressing himself, eating, going to the bathroom, sleeping, praying, singing, reading and talking with his neighbors” — an apparent reference to fellow prisoners locked inside adjacent cells, alone, at Camp 5 maximum-security prison.
In contrast, his lawyers wrote in June that Ba Odah “teeters on the precipice of death — his body struggling, but ultimately failing, to properly absorb the liquid nutrients he is being force fed.”
As a sign of their confidence in his health, Justice Department lawyers wrote, prison doctors had permitted him to voluntarily forgo recommended blood tests. “Involuntary medical testing may be considered if his condition worsens,” they said.
The filing argued that Ba Odah was not entitled to court-ordered release because he had no active habeas corpus petition pending, and that his lawyers erred in arguing that he was entitled to early release under both the Geneva Conventions and a U.S. Army regulation covering sick or wounded prisoners.
In 2010, a government task force cleared Ba Odah for transfer to another country with security assurances as a detainee in the war on terror. But the Justice Department lawyers argued he does not meet the Pentagon’s definition of an Enemy Prisoner of War, entitled to release under the Geneva Conventions.
They also urged the judge to stay out of the executive branch’s efforts to conduct “politically sensitive” diplomacy to resettle captives “prior to the cessation of hostilities” — without mentioning that the State Department had actually disagreed with the Justice Department on the Ba Odah case.
As first reported by the New York Times on Aug. 7, there was internal debate over Ba Odah’s effort to get a court release order. State Department officials didn’t want the Obama administration to oppose his release, according to Obama administration officials without authority to discuss the debate publicly, because it would send mixed messages to nations considering whether to resettle cleared Guantánamo captives.
Beyond that, a court order would let U.S. diplomats undertake a transfer without certification to Congress by Secretary of Defense Ash Carter, who has completed one transfer of six detainess to Oman since taking office in February.
The Justice Department filing also invoked what sounded like reverse reasoning. It said that the courts have been deferential to the White House “on decisions of humanitarian release,” citing the example of the Department of Homeland Security paroling an alien into the United States.
Such a federal release order, the Justice Department filing noted, was “not appropriate for the court.”
The filing noted that the Navy devotes four physicians — two family doctors, an internist/oncologist and a psychiatrist — to treat 101 of the 116 captives, making clear that former CIA detainees in a secret lockup, Camp 7, get separate medical staff.
At the prison Monday, Capt. Chris Scholl said no detainee currently had a cancer diagnosis, the specialty of the internist notwithstanding.
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