Judge Hogan heard arguments last Thursday in the case of Tariq Ali Abdullah Ba Odah, a Guantánamo detainee who has been on a hunger strike for eight years, during which time his weight has dropped from 133 to approximately 75 pounds. Ba Odah voluntarily dismissed his habeas petition in March 2014; but now his lawyers have filed a motion to “reinstate” that petition, seeking an order that would require the government “to take all necessary steps to facilitate his release from Guantánamo without further delay,” in light of his deteriorating medical condition. Ba Odah is a Yemeni national, but moved at the age of one to Saudi Arabia, where some of his family members still reside. According to one of his lawyers, Ba Odah seeks to be “repatriated” to Saudi Arabia or “resettled elsewhere.” For further background and details on the motion, see my earlier post.

Judge Hogan, who has been dealing with GTMO cases now for well over a decade, was quite obviously displeased that it is even necessary for him to resolve this motion. He expressed his “distress” that Ba Odah, like several dozen other detainees, is “languishing” at GTMO long after the government has cleared him for release. The government claims to be working on finding a nation to which it might transfer Ba Odah, but so far it has not made any such arrangements. At the hearing last Thursday, Judge Hogan wondered why the government hasn’t simply transferred Ba Odah to Saudi Arabia, where his family has lived since he was a year old. (He was born in Yemen.) The government did not explain why such a transfer has not occurred; but it’s a good guess that Saudi Arabia simply will not agree to accept Mr. Ba Odah — or many other GTMO detainees, for that matter — and that the State Department has not yet found another nation willing to accept him on terms that are acceptable to the United States.

Of course, if this is correct — that the U.S. government has not yet found another nation willing to accept Ba Odah — then even an order from Judge Hogan would not necessarily precipitate his release from Guantánamo. Such a court order, however, might affect the terms and conditions the U.S. insists upon in its negotiations with other nations, which might in turn lower the obstacles to transfer. (Obviously, this is speculative: We don’t know what effect, if any, such an order would have on the prospects of a transfer deal.)

As for the merits of the motion, it is not entirely clear from the hearing how Judge Hogan will rule, but he did offer some clues about his thinking; and the government offered a bit more insight into why it is opposing the motion.

The government’s arguments

Not surprisingly (see my earlier post), Judge Hogan did not appear at all amenable to the government’s argument that he lacks jurisdiction or power to consider the motion. Nor did he express any inclination to “defer” to the government on whether Ba Odah’s medical condition meets the standard for repatriation under Article 110(2) of the Third Geneva Convention — namely, whether he is unlikely to recover his health within one year, and whether his mental or physical fitness seems to have been gravely diminished. Indeed, and as I discussed in my earlier post, there’s no governmental judgment to which the court might defer: at argument the government in effect disclaimed that it has reached any such judgment, since it has not been able to make any reliable medical examination of Ba Odah. (He refuses to allow government doctors to examine him.) The government reiterated that it remains “very concerned” about Ba Odah’s health — implying that perhaps Ba Odah meets the standard for repatriation under Article 110(2), but there’s no way to tell for certain.

So what is the dispute on the merits? The attorneys and the judge spent a lot of time debating whether Ba Odah is entitled to the repatriation protections of section 3-12 of Army Regulation 190-8. DOJ argues that Regulation 190-8 does not apply to an unprivileged detainee such as Ba Odah in a noninternational conflict. Judge Hogan indicated that he thinks such an argument is precluded by the court of appeals’ ruling in al Warafi, and that Regulation 190-8 therefore applies. As I explained in my earlier post, however, I’m not sure it matters much whether Article 190-8 applies of its own force, because the pertinent articles of the Geneva Convention (Part IV, section 1 of the Convention, dealing with injured and sick prisoners) in any event inform the scope of detention authority under the AUMF — and, generally speaking, those provisions preclude continuing authority to detain an individual if he is no longer physically capable of returning to the service of the enemy in the armed conflict.

So if, as Judge Hogan suggested, the provisions of GCIII apply by analogy, either under Regulation 190-8 or as a gloss on the AUMF’s detention authority, why isn’t Ba Odah entitled to repatriation under the Article 110(2) standard? As I understand it, the government has two responses to this question. First, it doesn’t yet know whether Ba Odah satisfies the 110(2) standard, because it has not been able to examine him.

Second, the government appears to argue that even if Ba Odah satisfies the Article 110(2) standard for repatriation, there would still be no obligation to repatriate him because his medical condition is self-inflicted. In support of this second argument, the government invokes Article 114 of GCIII, which specifies that POWs “who meet with accidents shall, unless the injury is self-inflicted, have the benefit of the provisions of this Convention as regards repatriation or accommodation in a neutral country.” Article 114 reflects what the government characterized as an “important principle of the law of war,” namely, a deterrence rationale: Even if the ordinary justification for continued detention does not apply — because the detainee is physically incapable of returning to the fight — his detention might nevertheless continue to be warranted, so as to avoid creating an incentive for other prisoners to try to harm themselves and thereby establish a ground for release. (In support of this view, the government invoked the Commentary to Article 114, which says that “[i]n this way, [prisoners] will not be encouraged to resort to such practices.”).

What Judge Hogan might do

Judge Hogan stated flat-out that he does not believe Article 114 applies here, since by its terms it deals with self-inflicted “accidents,” not illnesses or other physical ailments. Nevertheless, he indicated that he would be reluctant to order Ba Odah’s release if Ba Odah could voluntarily take steps that would improve his medical condition. (The judge did not identify the legal basis for such a reluctance, but presumably he would be invoking the deterrence principle underlying Article 114’s “self-inflicted injury” exception, perhaps as a gloss on the government’s AUMF detention authority.)

The problem, however, is that the judge does not know whether Ba Odah could voluntarily improve own his medical condition, because he (Ba Odah) has refused to be examined by U.S. government doctors. Relatedly, Judge Hogan stressed that he does not know whether there are other causes besides the hunger strike, mental or physical, contributing to Ba Odah’s condition: the judge made it plain that he believes it is important to ascertain whether Ba Odah is capable of ending his hunger strike now, and whether such a cessation of the strike would, in any event, improve his physical condition.

Therefore, Judge Hogan indicated that in order to obtain further information about such questions, he might order the government to examine Ba Odah using what GCIII Articles 112 and 113 refer to as a “Mixed Medical Commission” — e.g., and as section 3-12 of Regulation 190-8 prescribes, a commission consisting of one U.S. government physician, and two foreign physicians appointed by the ICRC.

It is by no means certain that such an order mandating use of a Mixed Medical Commission would provide the judge with the information he is seeking, for two reasons. First, it remains to be seen whether Ba Odah would consent to examination by such a mixed commission. And second, the Army has not taken any steps to establish such a mixed commission, which presumably would require substantial negotiation with the ICRC, and establishment and implementation of a process by which international physicians would be designated. Unless Judge Hogan imposes a very strict deadline, this will take considerable time — and in Mr. Ba Odah’s case, there may be no time to lose.