Disgraceful US Justice Department Secretly Blocks Release from Guantánamo of Gravely Ill Hunger Striker Tariq Ba Odah

24.8.15

Guantanamo hunger striker Tariq Ba Odah, photographed at Guantanamo before the long-term effects of his eight-year hunger strike took hold. He now weighs just 74.5 pounds.“Wonderful.” This is the only word that Guantánamo prisoner Tariq Ba Odah said, over and over, as he “looked through photos of vigils and protests, tweets and Facebook posts, and dozens of articles about efforts to free him” from Guantánamo, at a meeting last week with his lawyer, Omar Farah, of the New York-based Center for Constitutional Rights.

Tariq, as regular readers will know, is a Yemeni, and a long-term hunger striker, who has been refusing food since 2007, and is force-fed on a daily basis. He now weighs just 74.5 pounds, and is at risk of death, but the Obama administration refuses to help him. Three weeks ago, I wrote about his lawyers’ efforts to have a US judge order his release because of the very real risk he faces of imminent death.

Tariq’s plight sparked media interest — and gasps of horror from anyone still sensitized enough, after nearly 14 years of the “war on terror” declared by the Bush administration after the terrorist attacks of September 11, 2001, to realize that a man weighing just 74.5 pounds would look like a survivor of — or a corpse at — the concentration camps run by the Nazis.

What makes Tariq’s plight even more revolting, when it comes to the immorality and inhumanity of his captors, is that he was approved for release over five and a half years ago, by the high-level, inter-agency Guantánamo Review Task Force that President Obama established to review all the prisoners’ cases when he took office in January 2009, but is still held, like 43 other men out of the 116 men still held, who were approved for release at the time.

This is a disgraceful state of affairs, as Cliff Sloan, the veteran diplomat who served as the State Department’s envoy for Guantánamo closure in 2013-14, explained recently. “For those who are approved for transfer, the laws passed by Congress permit it and we should be moving forward with those promptly,” Sloan said, adding, “Any month where we’re not seeing significant numbers of transfers undermines the president’s policy and is unfair to the individuals affected.”

In Tariq’s case, he is still held in particular because, like 36 other men approved for release by the task force (and six others approved for release in the last year and a half by Periodic Review Boards) he is from Yemen, and there is, across the US establishment, a shared conviction that no one from Yemen must be repatriated from Guantánamo, because of concerns about the security situation in their home country.

Better, instead, apparently, that they die at Guantánamo, 2,000 days after they were first told that the US no longer wanted to hold them, and would soon be making arrangements for their release.

In Tariq’s case, the Justice Department compounded this monstrous injustice on August 14 by filing — in secret — a challenge to Tariq’s habeas corpus petition seeking his release because of the threat to his life of further force-feeding.

As the Guardian explained:

In an extremely rare legal manoeuvre, the Obama administration has challenged a legal request to free a hunger-striking Guantánamo Bay detainee entirely in secret.

US officials said the objection to freeing Tariq Ba Odah, who is undernourished to the point of starvation, and the decision to challenge his legal gambit outside of public view, are indications that the Obama administration will fight tenaciously to stop detainees from seeking freedom in federal courts, despite Barack Obama’s oft-repeated pledge to close Guantánamo.

Late on Friday, the US justice department submitted a long-awaited filing in Ba Odah’s habeas corpus petition. The filing was kept under seal, a rarity for a challenge to the so-called “great writ,” the underpinning of Anglo-American jurisprudence.

The filing itself simply reads: “Sealed opposition.”

A US official, speaking anonymously, told the Guardian that “hardline elements within the US defense department are convinced that hunger strikes — referred to euphemistically at Guantánamo as ‘non-religious fasting’ — are functionally a method of warfare,” a disgraceful stance that has echoes of Guantánamo’s then-commander, Rear Adm. Harry Harris, causing outrage in June 2006 when he described the alleged suicides of three men as “an act of asymmetrical warfare waged against us.”

According to this distorted view of hunger strikes, the Guardian explained, “permitting Ba Odah’s challenge to his detention to go unanswered would both represent a substantive defeat and would encourage intensification of hunger strikes.”

To repeat, then: it is better to let men die at Guantánamo, 2,000 days after they were first told that the US no longer wanted to hold them, and would soon be making arrangements for their release, than it is to free them and to suggest to their fellow prisoners that starving oneself to the point of death for eight years, and being force-fed every day, is a useful strategy.

The official who spoke to the Guardian also “indicated that the motive for sealing the motion was to shield the government from embarrassment, rather than protecting classified information.”

Tariq’s lawyers responded with dismay and anger to the news. Wells Dixon of the Center for Constitutional Rights called the secrecy “rare and unnecessary,” and Omar Farah said, “We are deeply disappointed by this secret filing. It is a transparent attempt to hide the fact that the Obama administration’s interagency process for closing Guantánamo is an incoherent mess, and it is plainly intended to conceal the inconsistency between the administration’s stated intention to close Guantánamo and the steps taken to transfer cleared men. The administration simply wants to avoid public criticism and accountability.”

National security lawyers told the Guardian that they “could not think of a case where the government had filed a sealed challenge to a habeas petition.” Joshua Dratel, who has represented several Guantánamo prisoners, said, “That would be unique, in my experience. I’ve never heard of that in a habeas context. It’s rare in a criminal context.”

A Justice Department spokesperson, speaking to the Guardian, tried to deny that the opposition to Ba Odah’s release contradicted the president’s stated goal of closing Guantánamo, claiming that the filing was only made under seal “in accordance with procedures used in the Guantánamo habeas cases when information regarding detainee medical care and related issues is involved,” and adding that a “public version of the filing is being prepared and will be filed on the public record.”

For Omar Farah, this was nothing but another smokescreen, and one devoid of any meaningful justification. “There is nothing sensitive about this pivotal moment that needs to be withheld from the public,” he said. “Mr. Ba Odah’s grave medical condition is not in dispute. Given that he has been cleared since 2009, there is no dispute about whether he should be approved for transfer. All the president has to decide is whether to exercise his discretion not to contest the motion and release Mr Ba Odah so that he does not die.”

Anyone in any doubt of the urgency of Tariq’s request for his release should reflect on Omar Farah’s words after meeting him at Guantánamo on August 18. “When I met Tariq on Tuesday morning, he had just returned from being tube-fed,” Omar wrote. “He insisted on standing to greet me and CCR’s Ibraham Qatabi, but was unsteady on his feet. Veins protruded from his outstretched arm as he shook our hands. Last Friday’s decision is more than a setback to his legal case. The administration’s position is punitive and senseless and a matter of potentially grave consequences for Tariq.”

I hope that, if the Justice Department — which has an appalling record when it comes to delivering either justice or fairness to the prisoners — cannot be shamed into dropping its opposition to Tariq’s habeas petition, other parts of the Obama administration are working overtime to find him a new home before it is too late.

It is disgraceful that such thoughts need to be uttered, but everything about Guantánamo remains profoundly shameful, and, as ever, every day that the prison remains open, its dark stain on America’s notion of itself as a nation that respects justice and fairness grows larger. Tariq Ba Odah should not be another victim of its murderous and life-sapping lawlessness.

POSTSCRIPT AUG. 25: The Justice Department’s 49-page filing has just been unsealed, and in it, as the Miami Herald explained, Justice Department lawyers argue that Tariq Ba Odah “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 US military custody.”

The lawyers state, in a footnote on page 27, “Granting petitioner’s requested relief could have the unintended consequence of encouraging similar actions by other detainees to effectuate court-ordered release.”

The Miami Herald added:

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 Miami Herald also noted that the Justice Department lawyers “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.”

On August 7, the New York Times reported that State Department officials said that “the government should not oppose his release, citing his medical condition and the incongruity of sending diplomats to ask other countries to take in such detainees even as the Justice Department fights in court to prolong their detention,” while Defense Department officials claimed that “not contesting Mr. Ba Odah’s lawsuit would create an incentive for other detainees to stop eating, too, causing problems” at Guantánamo.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album, ‘Love and War,’ was released in July 2015). He is the co-founder of the Close Guantánamo campaign, the co-director of We Stand With Shaker, calling for the immediate release from Guantánamo of Shaker Aamer, the last British resident in the prison, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

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7 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here’s my latest article, catching up on the dreadful news about long-term ‪‎Guantanamo‬ hunger striker Tariq Ba Odah, cleared for release since 2009, whose request for a judge to order his release because he weighs just 74.5 pounds and is at serious risk of death, is being challenged by the heartless Justice Department. It is thought that the DoJ’s filing, which is secret, claims that allowing him to be freed would encourage other prisoners to think that eight years of force-feeding is a good way out of Guantanamo. This really is beyond contemptible!

  2. Andy Worthington says...

    Carol Anne Grayson wrote:

    Thanks Andy… This is ghastly treatment of this poor man and it is exactly this sort of behaviour from US that helps to incite acts of terrorism from groups like IS… Almost beyond belief… Wait for the next IS video which will show someone force fed then left to die in some horrible way…

  3. Andy Worthington says...

    Thanks, Carol. It’s actually quite horrible to have retribution for Guantanamo spelled out in that way. I’m used to meeting Muslims who are sorrowful about the situation, and perhaps even able to express anger about it (although sorrow is much more predominant), but for IS to use Guantanamo makes me feel a bit sick, as they are such contemptible butchers – murderers with a penchant for horrible violence that has nothing to do with Islam, and that, instead, reveals profound psychological problems, looters and misogynists. Guantanamo should be closed, of course, as I have been working towards for nine and a half years now, but not because of IS.

  4. Andy Worthington says...

    Harriet Wong wrote:

    I can’t stand it. How shameful. How inhuman. How heart breaking.

    Thank you for not turning away from these horrors Andy and for making sure that the truth continues to get out. And thank you for sharing the good news that Tariq had the opportunity to see and appreciate the solidarity shown by those fighting his cause – it gives some hope that perhaps he doesn’t feel utterly alone as he endures this abhorrent violation of his rights and humanity.

  5. Andy Worthington says...

    Good to hear from you, Harriet. I hope all is well with you. Thanks for the kind words, and for your ongoing interest in Guantanamo and outrage about the injustice.

  6. Andy Worthington says...

    Lizzy Arizona wrote:

    Free all Gitmo victims.

  7. Andy Worthington says...

    Thanks, Lizzy. Good to hear from you.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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