On October 15, a federal district court in Washington, DC, will hear argument in Ba Odah v. Obama, a habeas challenge by a Guantánamo detainee whose prolonged hunger strike has left him in a precarious medical condition. The case raises two overarching questions: First, whether principles of international humanitarian law (IHL) governing sick prisoners require petitioner Tariq Ba Odah’s immediate repatriation; and second, if they do, whether a federal judge can order this relief. The briefs are all available here.
A Yemeni citizen, Ba Odah is unquestionably suffering the debilitating physical and psychological effects of an eight-year hunger strike. He now weighs less than 75 pounds, just 56 percent of his ideal body weight. As his lawyers note, three independent medical experts have concluded that Ba Odah “is gravely malnourished and in danger of catastrophic physical and neurological impairment and even death.” The government, despite conceding that Ba Odah’s weight is “dangerously low,” nonetheless maintains that he is “clinically stable.”
Ba Odah should no longer be at Guantánamo. In 2009, the Obama administration approved Ba Odah for conditional transfer, based on an improvement of security conditions in Yemen, his home country, or the availability of resettlement in a third country. As described below, not only is the Justice Department’s legal opposition problematic, but also its vigorous opposition to Ba Odah’s request for relief should raise eyebrows given the administration’s stated commitment to closing the prison.
Ba Odah argues that US Army Regulation 190-8 (AR 190-8) requires his release. Chapter 3, section 12(1) of the regulation implements the United States’s obligation under Article 110 of the Third Geneva Convention (GC III) to repatriate prisoners who are seriously ill and unlikely to recover within one year. The government counters that AR 190-8 does not provide any protection here because Ba Odah’s detainee designation is not one to which the regulation’s repatriation provisions apply since he is a “former combatant,” not a prisoner of war (POW) or “[o]ther [d]etainee” awaiting classification. Additionally, the government argues that Ba Odah is not entitled to protection under either AR 190-8 or the Geneva Conventions because his medical condition is the result of his hunger strike and subsequent refusal of treatment. (He has, for example, opposed forced-feeding.) Such self-inflicted injuries, the government argues, citing Article 114 of GC III, are disqualified from protection under IHL.
Neither side cites direct precedent on the application of Article 110 to prisoners whose deteriorating health is due to a hunger strike. Ba Odah nevertheless has the stronger argument on balance. To defeat the applicability of AR 190-8’s repatriation provisions, the government resurrects the Combatant Status Review Tribunal (CSRT) — the same flawed tribunal that the Supreme Court discredited in Boumediene v. Bush. The CSRT’s purpose was never to determine a prisoner’s status under the Geneva Conventions — POW status, for example, was not an option — but rather to confirm a prior executive branch determination that a prisoner was an enemy combatant. The CSRT, which was arguably part of a larger effort by the Bush administration to circumvent IHL protections rather than implement them, should not preclude application of AR 190-8 in this case.
On the merits of Ba Odah’s claim, the government relies principally on Article 114 of GC III, which, according to the Commentary, was intended to preclude repatriation for prisoners who “willfully inflict injuries on their person.” But nothing in the Geneva Convention’s text or in the Commentary suggests that this bar should apply to someone like Ba Odah, whose medical condition was not self-inflicted in the common sense meaning of the term — like injuries from a self-inflicted knife or gunshot wound — but rather are the secondary effect of a hunger strike undertaken to protest the illegality of his prolonged indefinite detention.
While the law may not be entirely clear, any doubts should be resolved in Ba Odah’s favor. The Commentary on Article 114 states that the fact of willful self-injury “must be clearly established,” suggesting a presumption in favor of repatriation. Further, if Ba Odah remains at Guantánamo, there is a good possibility that his condition will worsen and that he will die. That possibility is difficult to square with relevant IHL principles. The sole legitimate purpose for continuing to detain uncharged prisoners at Guantánamo is to prevent their return to the armed conflict. But in Ba Odah’s case, that purpose no longer holds because he has provisionally been cleared for release based on a future threat assessment. The government cannot continue to claim legal authority to hold a prisoner after 13 years of imprisonment based on IHL principles when those principles now support his release.
The government’s final argument — that the court cannot order relief even if Ba Odah is legally entitled to it — is the weakest of all. This argument is a thinly veiled attempt to turn the clock back and re-litigate the basic claim that the US repeatedly fought and lost in a string of Supreme Court rulings: that determinations regarding prisoners at Guantánamo are reserved exclusively to the political branches. The DC Circuit’s more recent ruling in Aamer v. Obama, finding that courts can hear challenges to conditions of confinement in habeas, further underscores that there should be no dispute about the district court’s authority to decide Ba Odah’s motion. As Marty Lederman notes, this argument is not likely to receive a warm reception from the bench.
Courts have decided various challenges to the legality of detention based on IHL principles, from the category of persons subject to detention (e.g., Hamdi v. Rumsfeld) to, most recently, the continued involvement of the US in the armed conflict itself (Warafi v. Obama) The issue presented in Ba Odah, which involves the intersection of US detention power and IHL rules governing the repatriation of sick prisoners — is no different. Further, the unconventional nature of the current armed conflict — a transnational conflict against non-state actors — makes the government’s invocation of the good-old-days of state-to-state negotiation when both sides had prisoners to exchange — a recipe for inaction.
But what may be most troubling about Ba Odah’s case is that the Obama administration is even fighting it at all. Obama has repeatedly vowed to close Guantánamo and transfer those remaining prisoners whom the US no longer has an interest in detaining. To that end, the administration is still trying to enlist foreign countries to help find homes for the numerous Guantánamo detainees it has cleared for transfer (nearly half of the 114 remaining prisoners).
So why dig in and fight the case of a cleared prisoner, particularly one in such perilous condition? It cannot help the US on the diplomatic front, as the State Department explained in its commendable, but ultimately unsuccessful, effort to persuade the administration not to oppose Ba Odah’s request for relief.
A judicial order directing Ba Odah’s release would have important practical consequences. In addition to aiding resettlement efforts, it would remove Ba Odah from the restrictions Congress has placed on detainee transfers, which exempt judicial orders. Those restrictions are likely to grow more restrictive in the National Defense Authorization Act for FY 2016, underscoring the imperative of judicial action as a counterweight to deliberate and irresponsible obstruction by Congress.
Ba Odah’s case, in short, represents several troubling aspects of the Obama administration’s approach to Guantánamo. It highlights a tendency to see IHL solely through the lens of security, empowering the government to engage in prolonged detention without charge while neglecting its humanitarian goals. Rather than promoting humanitarianism, IHL principles are subverted to serve retributivist ends, a pattern that dates from Guantánamo’s earliest days, where prisoners were And finally, Ba Odah’s case demonstrates Obama’s conflicted — if not borderline schizophrenic — approach to the prison’s closure, where the president’s lofty statements about needing to shutter Guantánamo are undercut by his administration’s court filings in individual cases designed to extend the confinement of its prisoners for no good reason.