Dissenter FeaturedLatest NewsThe Dissenter

Attorneys: U.S. Claims ‘Unchecked Power’ to Keep Gravely Sick Prisoner at Guantanamo

Attorneys for a gravely sick Guantanamo Bay prisoner, who has been on hunger strike for eight and a half years, argue the United States government has “attacked” a federal court’s “Constitutional authority” by claiming “unchecked power” to continue detention and force-feeding.

Tariq Ba Odah, a Yemeni prisoner and resident of Saudi Arabia, has been confined in “solitary conditions” for 13 years, despite the fact that President Barack Obama’s own review task force—comprised of officials from the top US security agencies—cleared Odah for release in 2009. He weighs 74 pounds, and his body can no longer endure the effects of nasal tube feedings.

In June, attorneys at the Center for Constitutional Rights launched a legal push to have Odah released. The U.S. has an “obligation to release seriously wounded and sick prisoners” under the “laws of war,” particularly the Third Geneva Convention, according to the attorneys.

The Obama administration responded with a secret filing in opposition to Odah’s release. A version of that filing was later made public and showed the government believes the fatal health complications he is experiencing are “self-inflicted” because medical personnel advised him not to go on hunger strike.

Rather than release Odah, the government would subject him to continuous force-feeding, which has no reasonable medical basis whatsoever and would amount to torturing Odah even more than he has been abused already.

The government insisted Odah’s continued detention was “lawful,” and he was not “entitled” to a court-ordered release because the courts should not review Executive Branch decisions on sick detainees.

“An attack on this court’s Constitutional authority”

Although the government presented no argument refuting claims that Odah is “gravely sick, at risk of disability and even death, and unlikely to be cured within one year,” his attorneys argue in a reply to the government [PDF], “The government presses for unreviewable authority to detain Mr. Ba Odah, now imprisoned for over thirteen years and cleared for transfer for five, all so it may persist in force-feeding him to prolong his detention even more.

“The sweeping — and senseless — claim of unchecked power is an attack on this Court’s constitutional authority and contravenes the humanitarian principles of the laws of war.”

Incredibly, the government ignores two major Supreme Court decisions to make the case that “medical repatriation decisions under the law of war are categorically beyond judicial authority, as it once argued that detention decisions themselves must be categorically shielded from judicial review.”

In 2008, Boumediene established “a constitutional right to ‘meaningful’ review of the legal and factual bases for executive detention.” In 2004, Hamdi affirmed the “government’s detention authority is subject to judicially imposed constraints.”

“The government makes the remarkable assertion that ‘because the relief requested involves transfer to a foreign country,’ it is politically sensitive and not appropriate for the court to hear,” according to Odah’s attorneys.

To make this argument, the government recalls “Operation Little Switch,” which was “a multilateral prisoner-swap concluded at the end of the Korean War” to defend keeping Odah at Guantanamo. But the attorneys point out Odah’s case is unlike this prisoner-swap because releasing Odah should not require the court to “wade into sensitive international affairs.”

“Odah has now been detained well over four times the duration of the Korean War,” his attorneys add. “After over thirteen years of imprisonment, the judiciary can (and must) review whether the exercise of Executive discretion comports with the law.”

The government maintains Odah should not be medically repatriated because the Third Geneva Convention has an “exception” for “injuries,” which are “self-inflicted.”

Odah’s attorneys contend the government is improperly reading this tenet of international law. What the government references to oppose Odah’s release is in a section for prisoners who have experienced accidents. Nothing happening to Odah is accidental. He is gravely and chronically sick.

“Something unexplained and dangerous is happening”

Even if complications were “self-inflicted,” there is no evidence that what is happening to Odah is merely a result of his hunger strike. He has been force-fed 2600 calories per day and still sustained an “abnormal level of debilitation.”

“Three independent medical experts have attested that something unexplained and dangerous is happening,” Odah’s attorneys explain. “It is implausible that the humanitarian provisions of the Geneva Conventions—promulgated as they were to alleviate the unnecessary suffering of prisoners in war settings—incorporate the government’s narrow, retributive view of Mr. Ba Odah’s suffering.”

Dr. Rami Bailony submitted a declaration [PDF], along with the reply to the government, which treats the assessment of a senior medical officer at Guantanamo as questionable. For example, Bailony argues the officer should not acknowledge certain aspects of Odah’s health and still label him as “clinically stable.”

“As used in the medical community,” Bailony suggests in the declaration “clinically stable” would typically mean “a clinician has satisfactorily performed certain common, threshold diagnostic tests” in order to conclude the “patient faces no imminent risk of further deterioration and death absent urgent remedial intervention.” However, the officer did not carry out any such analysis. Odah’s vital signs were checked some time four months ago, and the officer’s conclusions came from merely observing Odah’s behavior.

Here is Bailony’s rebuttal to such perversion of medical practice at Guantanamo:

… [A] physician would not assess a patient to be clinically stable based merely on the outward appearance of “normal” behavior or functioning. There are numerous diseases — particularly in cases of chronic, severe malnourishment — that do not appear to interfere with normal human functioning until they progress to their final, lethal stages. This is why, for example, patients with severe, undiagnosed heart disease can perform routine daily activities such as walking, talking, grooming – the very activities that have assured the SMO that Mr. Ba Odah is stable – right up until the moment they collapse and expire. That Mr. Ba Odah is able to talk on occasion to a neighboring prisoner, does not rule out the presence, for example, of potentially permanent, even fatal, vitamin deficiency (particularly thiamine or B- 12) that would explain the numbness in his extremities as reported to his counsel, or protein deficiencies, imminent heart failure, kidney failure, or other serious illness.

And while it seems unlikely to me that an adult male at 74 pounds is functioning normally, the medical reality is that in his current state, Mr. Ba Odah could appear to function normally in most outward respects right up until the moment he dies. But no doctor charged with caring for Mr. Ba Odah could justify failing to intervene to avoid that outcome by pointing to episodic observations of the patient grooming, sleeping, or singing. [emphasis added]

Omar Farah, who represents Odah, met with him twice in mid-August [PDF]. Odah shared how he experiences “extreme fatigue,” which has led to collapses. His right leg has gone numb. His digestive system has been “overwhelmed during force-feeding sessions, which causes him to vomit.” He is losing his memory and comprehension abilities. He has had “bloody stools and extreme constipation.” Yet, a military doctor would have a court believe Odah is “clinically stable.”

Emergency force-feeding has no basis in “medical literature”

In his declaration, Bailony also criticizes the plan to subject Odah to continuous force-feeding.

“Frankly, as an emergency intervention plan, continual enteral feeding is inadequate and finds no support in the medical literature that I am aware of,” Bailony states. The medical officer “offers no medical basis to conclude that feeding Mr. Ba Odah more slowly will enhance his ability to efficiently absorb those additional nutrients.”

More nutritional supplements will not help Odah if he is currently receiving 2600 calories each day but is not gaining weight.

“It bears emphasis that refeeding-syndrome was first discovered during World War II when prisoners of war who appeared stable—though frail—died precipitously, as their systems were overwhelmed by well-meaning efforts to rehabilitate them through increasing their caloric intake,” Bailony reminds. “In my clinical opinion, Mr. Ba Odah’s deterioration has long passed the point where merely upping his calories is an appropriate remedial course.”

Joe Margulies, counsel for Abu Zubaydah, a prisoner at Guantanamo who was subjected to some of the worst CIA torture, sums it up rather appropriately. The Obama administration’s fear is “if the United States were to release this 75-pound, starving prisoner, it might have to release every prisoner who starved himself to a shadow, and who knows where that might lead?”

“Other prisoners might put themselves through the torture that Tariq has endured and submit to being force-fed every day, twice a day, for more than eight years, simply so they could pass within sight of death and thereby secure their release,” Margulies continued.

Like Margulies said, this position is “breathtaking in its moral bankruptcy.” In fact, it becomes even more breathtaking as the Obama administration holds this position while simultaneously claiming it remains committed to closing the Guantanamo Bay prison.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."