Justice Department considers release of hunger striker from Guantanamo

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Marco Werman: On the opposite end of the island from Havana, there’s been an American flag flying for more than a hundred years at the US military facility at Guantanamo Bay. And Guantanamo is in the news today, as well. That’s because of the case of one detainee there, a man named Tariq Ba Odah. He’s from Yemen and has been on a hunger strike since 2007. He’s currently down to just 74 pounds. David Rohde has looked into this case for Reuters. First of all, David, how did Tariq Ba Odah come to be at Gitmo in the first place?


David Rohde: He was captured by the Pakistani army on the border with Afghanistan and accused of being a member of the Taliban and maybe receiving some weapons training; he and his lawyers deny that. But he’s been in Guantanamo for nearly 14 years, or in CIA detention for nearly 14 years.


Werman: And this hunger strike of his has gone on for 8 years. How come he hasn’t starved to death?


Rohde: Well, he’s force-fed; I mean, this is the protocol in the camp, there have been many hunger strikes down there. And he’s essentially strapped into a chair and a nasal tube is inserted and he’s then fed. The concern of his lawyers is that he’s sort of lost weight over the last 18 months and they’ve filed this legal petition arguing that he actually may die of starvation, and they’ve asked the Obama Administration to release him on health grounds.


Werman: So he’s been force-fed for 8 years? What is his hunger strike about?


Rohde: He was cleared for release 5 years ago. This is a very cumbersome and thorough process though, where 5 different American government agencies, including the CIA and the Pentagon, review every prisoner at Guantanamo and see if their release would pose a risk to the United States. Again, he was cleared 5 years ago but the Secretary of Defense has not signed his papers that would actually release him. It’s a congressional restriction that requires the Secretary of Defense to sign a special waiver, and that’s been the real log jam in emptying the camp. Fifty-two of the 116 men in Guantanamo have been cleared for release by the CIA and the Pentagon and other agencies, but they’re still there because the secretary will not sign the release order.


Werman: And that’s why there’s a hold up? That release order won’t get signed?


Rohde: There is. There’s enormous pressure from the uniformed military, a former military official told me, on defense secretaries. It’s essentially this belief that he will somehow re-engage in the fight and then threaten American forces. This happened with Secretary Gates, definitely Secretary Panetta, and then it really came to a head under Defense Secretary Chuck Hagel. He was very slow to sign these release forms, and I was told by a defense official recently it was the primary reason Hagel was forced to resign by the White House, was because he wasn’t signing these releases fast enough.


Werman: So if Tariq Ba Odah is greenlighted to get released, would the Pentagon just stop it anyway?


Rohde: What is going on and what many different lawyers for detainees in Guantanamo say there’s another way to release prisoners that gets around this congressional requirement for the defense secretary’s waiver. And if it’s a court-ordered release--so if there’s a Habeas Corpus petition has occurred in Ba Odah’s case--if the government will simply not contest that petition, that’s called a judicial release, a judge then orders Ba Odah to leave, and this congressional requirement doesn’t cover judicial releases. And so these lawyers are saying, “This is a mechanism, this is a test case for how Obama could remove prisoners from Guantanamo faster,” and they’re seeing this as sort of a pivotal indication of whether Obama will use all of his executive powers to empty the camp.


Werman: Yeah, I was going to say, what does all this say about how hard it’s going to be for Obama to make good on his pledge to empty Guantanamo before he leaves office, what, 18 months from now?


Rohde: I mean, administration officials say he’s determined to do it. But more and more of these detainee lawyers, as the day pass and these men aren’t removed, they say the president is not serious about his commitment. They’re saying he does have the powers to do this, he could put more pressure on Defense Secretary Ash Carter to sign these releases--the defense secretary reports to the president and serves at his discretion. So, there’s a growing clamor from people that want Guantanamo closed, from lawyers that represent detainees that Obama is not doing enough; he has more tools here and he’s not using them.


Werman: Is the sense there that this is not going to happen before he leaves office?


Rohde: Yes. There’s another critical step in the next few months that there’s even further restrictions that Congress is trying to impose on closing Guantanamo as part of the Annual Defense Budget Authorization Act. For the past two years, Obama has threatened--this has happened and the restrictions have been included in the act--Obama threatened to veto them and he didn’t do that. He’s insisting this year he will veto the defense bill if the restrictions are in it. At the same time, the White House says it’s going to release a new plan to close the base. So, I think you’ll see a lot of this in the news in the next month or two.


Werman: David Rohde with Reuters. Good to have you on The World again.


Rohde: Thank you.