Justice Department: Do Not Oppose the Habeas Corpus Petition of Tariq Ba Odah

The story of Yemeni Guantanamo detainee Tariq Ba Odah is, in many ways, all too familiar: he has been imprisoned without trial or charge since 2002, despite the fact that the interagency Guantanamo Detainee Task Force had cleared him for release in 2009.

In one way, though, Ba Odah is markedly different: he hasn’t voluntarily eaten since 2007.

Ba Odah started a hunger strike to protest his detention, as many at Guantanamo have done. Now, though, he weighs less than 75 pounds. He is force fed twice each day. Medical experts have said that his condition represents “a level of physical deterioration typically seen in a late-stage cancer or AIDS patient, as it is usually indicative that someone is on the precipice of death due to severe malnutrition, organ failure, and systemic collapse.” Any additional stress, such as an infection or fever, could cause his death. Simply eating food again will not resolve his condition.

Ba Odah has filed a habeas corpus petition, arguing that he should be released from Guantanamo, based on his poor health. This is not unprecedented: in 2013, Ibrahim Othman Ibrahim Idis, a Sudanese man, was sent back to Khartoum after filing a habeas petition based on “severe long-term mental illness and physical illness” that, his lawyers argued, meant that he did not pose a threat to the United States. The U.S. government declined to oppose his petition and his claim was granted.

However, there are now reports that the government is prepared to oppose Ba Odah’s petition, despite his exceptionally poor health and the determination that he poses no threat. Last Friday the government asked for an extension of one week to consider the case; they must make a decision about whether to go forward by tomorrow. The New York Times suggests that there is concern that allowing Ba Odah’s claim to go forward unchallenged will incentivize other prisoners to hunger strike.

Moral implications of this position aside, this is an extremely tenuous, not to say ridiculous, concern. First, Ba Odah’s lawyers have pointed out that the severity of his condition is likely due to an underlying medical condition, not solely to his hunger strike. Second, even if this were not the case, Ba Odah has now been on a hunger strike for eight years. President Obama has repeatedly reiterated his intention to close Guantanamo; if these pledges are sincere, there should be little risk of another eight-year hunger strike.

Furthermore, failure to transfer detainees like Ba Odah undermines efforts to resettle Guantanamo detainees with third countries, a necessary part of the process to close the detention facility. The New York Times reports that State Department officials also would like to see Ba Odah’s petition go unopposed for this reason. It certainly highlights the government’s hypocrisy when diplomats negotiate for resettlement while Justice Department officials refuse to allow detainees to be released.

If the government opposes Ba Odah’s petition, it will be working against itself. If it does not allow him to be released under a court order, it may have to meet cumbersome, congressionally-imposed restrictions to transfer him at a later date. Further, Ba Odah is almost an ideal candidate for resettlement—he has been cleared for release and he is extremely ill. What are those pushing for the closure of the facility to think if the government opposes Ba Odah’s petition? Presumably that President Obama’s pledges to close Guantanamo are little more than words.

As Human Rights First has laid out in a policy blueprint, increasing the transfers of detainees—particularly those who have been cleared for transfer—is crucial to closing Guantanamo. Opposing Ba Odah’s petition will undermine these efforts, as well as the government’s overall commitment to human rights.

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Published on August 13, 2015

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