Tariq Ba Odah, in his mid-30s, has been at Guantánamo since 2002, on a hunger strike since 2007 and was approved for release with security assurances since 2010.
WASHINGTON — An ailing 75.5-pound hunger striker at Guantánamo may be entitled to a medical-panel review on whether he’s so sick he should be released, a federal judge said Thursday, advising lawyers to ask the Pentagon for the review before the court will intervene in the case.
Lawyers for Tariq Ba Odah wanted U.S. District Judge Thomas Hogan to order the Obama administration to release the Yemeni under Army and Geneva Conventions guidelines for gravely ill prisoners of war.
Ba Odah, in his mid-30s, has been at the detention facility in Guantánamo Bay, Cuba, since 2002, on a hunger strike since 2007, and was approved for release with security assurances since 2010.
But Justice Department attorney Ronald Wiltsie argued that Ba Odah “was not entitled to the medical-repatriation privilege” for prisoners of war that accompanies the medical-panel review.
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He called the captive a properly classified member of al-Qaida and the Taliban who is lawfully detained until the United States arranges his release.
He urged Hogan to stay out of the case, warning that others among the 114 captives at the U.S. Navy base in Cuba might see starvation as a way out.
“It will greatly hurt the efforts at safety and security at Guantánamo as other detainees look for a way to invoke medical relief,” Wiltsie said.
Part of the Ba Odah problem is that in 2010, an Obama review panel concluded he could return to his native Yemen with security assurances if the security situation were to improve. It has gotten worse. Meantime, diplomats have in some instances arranged third-party resettlement for some cleared Yemeni captives, notably to neighboring Oman.
Hogan noted that although Ba Odah was born in Yemen, he was raised from age 2 in Saudi Arabia, and wondered whether the U.S. government was trying to send him “to a state where a government can take care of him properly.”
The captive got to Guantánamo in 2002 and has been force-fed since 2007.
Hogan also spent considerable time wondering whether the detainee’s poor health was a “self-induced illness,” and whether if Ba Odah were diagnosed with a mental illness that should influence consideration of his case.
“I’ve got no question that we have a seriously ill petitioner,” Hogan said.
At issue, in part, is why Ba Odah — who weighed 121 pounds and measured 5-foot-4 ½ on his arrival at Guantánamo on Feb. 9, 2002 — can’t put on weight even though Navy medics snake a tube up a nostril and down the back of his throat daily to pump in 2,600 calories of nutritional supplement.
A Ba Odah attorney, Omar Farah, said his client, 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.
He also urged the judge to rule “regardless of what another detainee is thinking at Guantánamo.”
Hogan 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.
Under the commission formula, Secretary of Defense Ash Carter would authorize a three-doctor panel to evaluate whether Ba Odah’s health merits release. The military would name one doctor, the captive’s advocates would choose another and the third would come from the International Red Cross.