Federal judge: Guantánamo hunger striker may be entitled to medical review

A screen grab from a military handout video dated April 10, 2013 offers a rare glimpse of a restraint chair used for forced feedings in the prison camps psychiatric ward, called the Behavioral Health Unit, at the U.S. Navy base at Guantánamo Bay, Cuba.
A screen grab from a military handout video dated April 10, 2013 offers a rare glimpse of a restraint chair used for forced feedings in the prison camps psychiatric ward, called the Behavioral Health Unit, at the U.S. Navy base at Guantánamo Bay, Cuba.

A sickly 75.5-pound Guantánamo hunger striker may be entitled to a medical panel review on whether he’s so sick he should be released, a federal judge said Thursday, advising lawyers to ask the Pentagon for the review before the court will intervene in the case.

Lawyers for Tariq Ba Odah wanted U.S. District Judge Thomas Hogan to order the Obama administration to release the Yemeni under Army and Geneva Conventions guidelines for gravely ill prisoners of war. Ba Odah, in his mid-30s, has been at Guantánamo since 2002, on a hunger strike since 2007 and approved for release with security assurances since 2010.

But Justice Department attorney Ronald Wiltsie argued that Ba Odah “was not entitled to the medical repatriation privilege” for prisoners of war that accompanies the medical panel review. He called the captive a properly classified member of al-Qaida and the Taliban who is lawfully detained until the United States arranges his release.

He urged Hogan to stay out of the case, warning that others among the 114 captives at the U.S. Navy base in Cuba might see starvation as a way out.

“It will greatly hurt the efforts at safety and security at Guantánamo as other detainees look for a way to invoke medical relief,” Wiltsie argued.

Part of the Ba Odah problem is that in 2010 an Obama review panel concluded he could return to his native Yemen with security assurances if the security situation improved. It’s gotten worse. Meantime, diplomats have in some instances arranged third-party resettlement for some cleared Yemeni captives, notably to neighboring Oman.

Hogan noted that although Ba Odah was born in Yemen, he was raised from age 2 in Saudi Arabia and wondered aloud whether the U.S. government was trying to send him “to a state where a government can take care of him properly.”

He also spent considerable time wondering whether the detainee’s poor health was a “self-induced illness,” and whether if Ba Odah were diagnosed with a mental illness that should influence consideration of his case.

“I’ve got no question that we have a seriously ill petitioner,” Hogan said.

At issue, in part, is why Ba Odah — who weighed 121 pounds and measured 5 feet, 4  1/2 inches on his arrival at Guantánamo Feb. 9, 2002 — can’t put on weight even though Navy medics snake a tube up a nostril and down the back of his throat daily to pump in 2,600 calories of nutritional supplement.

Government lawyers want him to cooperate with the Navy medical team at Guantánamo that conducts the forced-feedings. Ba Odah’s attorney Omar Farah said the man, held in solitary confinement and sometimes tackled and shackled and taken from his cell to the feedings, does not trust the military medical staff and requires independent outside care.

He also urged the judge to rule “regardless of what another detainee is thinking at Guantánamo.”

Farah called the captive at risk of death because of his overall degraded health, noting he has suffered bedsores and a cyst. The Justice Department lawyer noted that, in recent weeks, Ba Odah’s Guantánamo weight was 75.5 pounds. His lawyer had earlier reported it had dropped as low as 74 pounds.

Hogan said Ba Odah might be entitled to a “Mixed Medical Commission” to evaluate his health and, if the Pentagon didn’t order one or release him, the court might do it. Under the commission formula, Secretary of Defense Ash Carter would authorize a three-doctor panel to evaluate whether Ba Odah’s health condition merits release. The military would name one doctor, the captive’s advocates would chose another and the third would come from the International Red Cross.

Hogan, who Ronald Reagan put on the court, wrote the guidelines for how the court at 333 Constitution Ave. would handle Guantánamo cases a decade ago — after the Supreme Court gave the detainees the right to challenge their detention in federal court. On Thursday, he declared himself “distressed at the failure of Congress and the Executive to effectively provide the legislation to execute that order.”

Instead, he said, detainees declared “no longer a danger to the United States” through executive review processes have been “languishing for years” at Guantánamo, he said.

Farah, the detainee’s attorney, noted that even as the Justice Department opposes the prisoner’s petition for a court order, “the government does not oppose Mr. Ba Odah’s release. The government is here fighting for a principle” — the right to “warehouse him in a cell,” force-feed him and then free him “in the time and manner of its choosing.”

He called it an “alarming and bizarre” interpretation of the Obama administration’s detention authority.

Carol Rosenberg: 305-376-3179, @carolrosenberg