Mohammed Al-Adahi, a Yemeni national who has been detained at Guantanamo for more than 12 years and was approved for conditional release in 2010, has been described by his lawyers as a “very, very sick man.” He suffers from coronary artery disease, metabolic syndrome, diabetes, hypertension, and other chronic ailments. Last Thursday, the District Court for the District of Columbia denied Al-Adahi’s effort to reopen his habeas case to seek his immediate release or repatriation on the basis of his serious illness. With a sedentary and aging detainee population in Guantanamo, chronic health problems will continue to surface and petitions of this type are likely to multiply. Under the international humanitarian law (IHL) framework that informs the scope of detention authority under the AUMF, the government has legal obligations to repatriate detainees who are suffering from serious and chronic illness.

Two other Guantanamo detainees recently filed similar motions on the basis of serious ailments. In October 2013, District Judge Royce Lamberth ordered the government to release Ibrahim Idris, a Sudanese national who was suffering from schizophrenia, obesity, and problems with circulation, digestion, blood sugar and blood pressure. He was transferred to Sudan in December 2013. (The government did not oppose the motion, and Idris had been cleared for release in 2009.) This year, Saudi national and UK resident Shaker Aamer also sought judgment on an old habeas petition on the basis of his post-traumatic stress disorder, depression, edema, headaches and asthma, among other ailments. In June, District Judge Rosemary Collyer denied the petition. (Shaker had also been approved for release in 2007 and 2009.)

Al-Adahi’s Claims

In light of his declining health, Mohammed Al-Adahi’s lawyers argued to the District Court that:

i) he is entitled to release on the basis of Chapter 3, Section 12(l) of Army Regulation 190-8, which requires that seriously ill or wounded prisoners of war whose condition “appears to preclude recovery in spite of treatment within 1 year from inception of disease” be directly repatriated, and

ii) if Army Regulation 190-8 does not require his release, his physical and mental illness “make it virtually impossible for him to participate in future hostilities with the United States,” invoking Hamdi v. Rumsfeld for the proposition that detention pursuant to the 2001 AUMF is only to “prevent captured individuals from returning to the field of battle and taking up arms once again.”

In rejecting these claims, Judge Gladys Kessler relied on the D.C. Circuit’s holding in Ali Awad v. Obama that the “United States’ authority to detain an enemy combatant is not dependent on whether an individual would be a threat to the United States or its allies if released but rather upon the continuation of hostilities.”

Assuming the gravity of Al-Adahi’s medical condition is not contested, the opinion handed down last week does not appear consistent with the specific exception for medical repatriation under IHL that informs interpretation of the AUMF.

Medical Repatriation under the Third Geneva Convention

In Hamdi, the Supreme Court explained: “we understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles.” [emphasis added] Consistent with Hamdi, since 2009 the government has taken the position that the “detention authority conferred by the AUMF is necessarily informed by principles of the laws of war.” It added that“[p]rinciples derived from law-of-war rules governing international armed conflicts, therefore, must inform the interpretation of the detention authority,” and the President has the authority under the AUMF to detain “those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them detainable.”

The international armed conflict principle that enemy fighters may be detained for the duration of the conflict is set forth in the Third Geneva Convention (GC III). It is well known that under Article 118 of GC III, prisoners of war who are not facing criminal proceedings or serving a sentence must be released and repatriated at the “close of hostilities.” The Commentary to the Article explains that “[i]n time of war, the internment of captives is justified by a legitimate concern to prevent military personnel from taking up arms once more against the captor State.” The Supreme Court in Hamdi acknowledged that “the object of capture is to prevent the captured individual from serving the enemy.” Indeed, in an armed conflict, holding individuals without criminal prosecution is meant to be a non-punitive measure carried out for security reasons for as long as a person continues to pose a threat.

Perhaps less well known, however, is the fact that this rule is qualified: GC III also requires medical repatriation of the seriously ill. Article 109 says: “Parties to the conflict are bound to send back to their own country, regardless of number or rank, seriously wounded and seriously sick prisoners of war.” Article 110 provides that among these are the “[i]ncurably wounded and sick whose mental or physical fitness seems to have been gravely diminished” and the “[w]ounded and sick who, according to medical opinion, are not likely to recover within one year, whose condition requires treatment and whose mental or physical fitness seems to have been gravely diminished.” These rules reflect the rationale that there is little danger that a repatriated prisoner of war meeting these criteria might take up arms once again and engage in hostilities. Al-Adahi’s first argument was consistent with these GC III provisions, which have been incorporated into Army Regulation 190-8.

In the case of Al-Adahi, circumstances today are such that he is very ill. If his condition satisfies the requirements of GC III Articles 109 and 110, then the relevant IHL rules that inform the scope of detention authority under the AUMF require his release. The fate of Guantanamo’s aging and chronically ill detainees should be examined in this light.