One day, when we’re looking back on Guantánamo and apportioning blame to those who contributed most powerfully to its cruelty, and to keeping it open long after the most senior officials in two governments conceded that it should be closed, a spotlight will be shone on the lawyers in the Civil Division of the Justice Department who have worked so assiduously to prevent prisoners from being released.
I have criticized these lawyers occasionally, but I have rarely heard any criticism of them in the mainstream media, and yet, from the moment that the Supreme Court granted the prisoners habeas corpus rights in Rasul v. Bush in June 2004, they have been making life difficult for lawyers representing the prisoners, micro-managing their meetings with their clients and their travel arrangements, and often, it is impossible not to conclude, in an effort to obstruct the lawyers’ ability to represent their clients.
In addition, as I noted in an article in August, the Civil Division lawyers “have fought tooth and nail against every single habeas petition submitted by the prisoners, with just one exception — the severely ill Sudanese prisoners Ibrahim Idris, whose petition was granted unopposed in 2013.” I added, “Disgracefully, the Justice Department lawyers have repeatedly challenged habeas petitions submitted by prisoners whose release has already been approved by the Guantánamo Review Task Force,” the high-level, inter-agency task force set up by President Obama shortly after taking office in January 2009, which issued its final report a year later, recommending 156 men for release, 36 for trials and 48 others for ongoing imprisonment without charge or trial, on the alarming basis that they were “too dangerous to release,” but that insufficient evidence existed to put them on trial.
In my article in August, I listed eleven cases in which a lack of joined-up thinking — in the Civil Division, but also, it must be said, in the offices of the president and the Attorney General — meant that men approved for release by the task force either had their habeas petitions successfully challenged by the Justice Department, or had successful petitions overturned by the court of appeals in Washington D.C., home to a number of ideologically biased judges whose obstruction of justice will also be remembered after Guantánamo finally closes.
My article in August followed a decision by the Civil Division to challenge the habeas petition of Tariq Ba Odah, a Yemeni prisoner, who was approved for release to Yemen by the task force, with 29 other Yemenis, on a “conditional” basis, dependent on security concerns being addressed. Now that the situation has worsened in Yemen, the entire US establishment is unwilling to repatriate any Yemenis, but as a result Ba Odah — and these 29 other men — could be released without any problems if a third country could be found that would take him in, as has happened with 18 Yemenis over the last two years.
Ba Odah’s lawyers submitted the habeas petition because they fear for his life, as I explained in an article in June. He weighs just 75 pounds — the weight one would expect a ten-year old to weigh, not a grown man — as a result of being on a hunger strike since 2007, and although he is regularly force-fed with a liquid supplement, the feedings are failing to ensure that he is putting weight on. He weighs just over half what he should to be healthy, and faces chronic organ failure and death.
The government, however — or the Civil Division, at least — disagrees, and last week argued against Ba Odah’s lawyers in the District Court in Washington D.C.
A hearing for Tariq Ba Odah
The judge, District Judge Thomas Hogan, is clearly not happy with Tariq Ba Odah’s situation, or with how the government has been dealing with the prisoners’ habeas rights.
That is, perhaps, not surprising. As the Miami Herald noted, Judge Hogan “wrote the guidelines for how the court at 333 Constitution Ave. would handle Guantánamo cases” after the Supreme Court revisited the prisoners’ habeas rights in Boumediene v. Bush in June 2008, and overturned Congressional efforts to erase Rasul v. Bush by denying the prisoners their rights. In Boumediene, the Supreme Court ruled that Congress had acted unconstitutionally, and granted the prisoners constitutionally guaranteed habeas corpus rights.
That decision led to 38 victories for the prisoners, most of whom were released, until the appeals court — the D.C. Circuit Court — intervened for dark ideological reasons, effectively gutting habeas corpus of all meaning for the Guantánamo prisoners by insisting, ludicrously, that every claim, however risible, that was put forward by the government had to be regarded as presumptively accurate, unless the prisoners, generally shorn of resources in Guantánamo, could disprove it.
Adding insult to injury, the Supreme Court then refused to revisit Boumediene, to add necessary safeguards for the prisoners, and since July 2010 no prisoner has had their habeas petition granted, and most have abandoned trying, adding to the gloom of Guantánamo, where it often seems that it is close to impossible to get released, and that the law has completely failed.
As the Miami Herald described it, Judge Hogan, speaking about Boumediene and the prisoners’ right to challenge their detention in federal court, declared that he was “distressed at the failure of Congress and the Executive to effectively provide the legislation to execute that order.”
Instead, he said, prisoners who had been declared to be “no longer a danger to the United States” through executive review processes have been “languishing for years” at Guantánamo.
This indignation is worthy and just, and it is a great shame that the Supreme Court has not embraced the sentiments and decided to act upon them.
Omar Farah, a staff attorney at the New York-based Center for Constitutional Rights, who represents Ba Odah, pointed out that, although the Justice Department opposes his client’s petition for a court order, “the government does not oppose [his] release.” As he explained, “The government is here fighting for a principle” — and a disgraceful one, as Farah proceeded to describe: “the right to ‘warehouse him in a cell,’ force-feed him and then free him ‘in the time and manner of its choosing.’” Farah added that this was an “alarming and bizarre” interpretation of the Obama administration’s detention authority.
Judge Hogan was also not impressed by the government’s failure to release Ba Odah, given that it has had nearly six years to do so. As Human Rights First described it:
Judge Hogan seemed exasperated when he asked the government’s lawyers why Ba Odah hadn’t yet been transferred. While Ba Odah was born in Yemen, he lived in Saudi Arabia since he was two years old. Judge Hogan asked why he hadn’t been transferred there. It was a question very much worth asking, given that the Obama Administration has safely transferred seven detainees to Saudi Arabia already. Here, the administration could transfer a detainee unanimously cleared for release to a country that has proven it can provide the necessary security assurances to ensure his safe resettlement. Judge Hogan was not persuaded by the government’s claim that it is making efforts to find places to resettle all cleared detainees, saying he is “not quite sure what the government is really doing about transferring [Ba Odah].”
Important analysis by Jonathan Hafetz
Turning to the question of whether or not, under Army regulations and the Geneva Convention’s guidelines for the release of gravely ill prisoners of war, Ba Odah should be released because of how ill he is, which is at the heart of the argument, Jonathan Hafetz, Associate Professor of Law at Seton Hall University School of Law, provide a detailed analysis for Just Security. I’m posting passages from this article below, because Hafetz very clearly explained why the government’s case is so weak, and why the Justice Department lawyers involved should be ashamed, and also asked why the Obama administration specifically has spent too much time sitting on its hands.
Hafetz began by stating, “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.”
As he then explained:
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 ‘wilfully 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.
Hafetz also noted, “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.”
He explained how the D.C. Circuit’s 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.” That case, named after Shaker Aamer, the last British resident in the prison, ended up being used by Abu Wa’el Dhiab, a Syrian prisoner, to embark on a struggle with the government to get videotapes of his force-feeding and abusive cell extractions released — a case that continues, with media organizations seeking public release of those videotapes, while Dhiab himself has been released and resettled in Uruguay.
Judge Hogan was unwilling to order Ba Odah’s release, but he did not sidestep the responsibility to do something. As the Miami Herald put it, he said Ba Odah “might be entitled to a ‘Mixed Medical Commission’ to evaluate his health and, if the Pentagon didn’t order one or release him, the court might do it.” The newspaper added, “Under the commission formula, Secretary of Defense Ash Carter would authorize a three-doctor panel to evaluate whether Ba Odah’s health condition merits release. The military would name one doctor, the captive’s advocates would chose another and the third would come from the International Red Cross.”
Justice Department attorney Ronald Wiltsie was unimpressed. He argued that Ba Odah “was not entitled to the medical repatriation privilege” for prisoners of war that accompanies the medical panel review,” and called Ba Odah “a properly classified member of al-Qaida and the Taliban who is lawfully detained until the United States arranges his release.” He also urged Judge Hogan “to stay out of the case,” warning that the prisoners “might see starvation as a way out,” in the Miami Herald‘s words. “It will greatly hurt the efforts at safety and security at Guantánamo as other detainees look for a way to invoke medical relief,” Wiltsie suggested.
That shows a heartlessness that was not echoed by Judge Hogan, who, while pondering Ba Odah’s state of mind, stated, “I’ve got no question that we have a seriously ill petitioner,” at one point in the proceedings. As the Miami Herald also noted, he also “wondered aloud whether the US government was trying to send him ‘to a state where a government can take care of him properly,’” and “also spent considerable time wondering whether [his] poor health was a ‘self-induced illness,’ and whether if [he] were diagnosed with a mental illness that should influence consideration of his case.”
The government’s lawyers take the position that they “want him to cooperate with the Navy medical team at Guantánamo that conducts the forced-feedings,” but Omar Farah pointed out that Ba Odah, “held in solitary confinement and sometimes tackled and shackled and taken from his cell to the feedings, does not trust the military medical staff and requires independent outside care.”
While we await the government’s presumably inevitable challenge, it is also worth noting that Jonathan Hafetz criticized the Obama administration, not just the Justice Department, for failing to pursue a different course of action.
As Hafetz put it, “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” (currently 54 of the 114 remaining prisoners).
He proceeded to ask, “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.
He also stated, “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.”
In closing, Hafetz wrote that “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.”
Here at “Close Guantánamo” we wholeheartedly agree, and call for there to be some grown-up and responsible oversight of the Civil Division, to speed up, rather than slowing down the closure of Guantánamo, as we approach President Obama’s last year in office, and the dwindling time still available to him to fulfill the promise to close Guantánamo that he made on his second day in office back in January 2009.
I wrote the above article for the “Close Guantánamo” website, which I established in January 2012 with US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.