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October 16, 2015

Administration Opposes Release of 75 pound, Cleared Gitmo Detainee

Yesterday in the D.C. District Court, lawyers for Tariq Ba Odah, a Yemeni detainee in Guantanamo, argued before Judge Thomas Hogan that the U.S. government should order Ba Odah’s release on medical grounds.

The hearing should’ve been unnecessary; Ba Odah was unanimously cleared for transfer by all national security and intelligence agencies over five years ago. He has never been charged with a crime. But the Obama Administration still hasn’t released him. As Judge Hogan himself said, Ba Odah has been “languishing” in Guantanamo since 2002.

In 2007, Ba Odah began his hunger strike. He now weighs 75.5 pounds. According an independent medical expert, Ba Odah’s “shocking” weight alone is a warning sign of “organ failure, neurological damage and, inevitably, death.”

In 2010, President Obama’s interagency task force—comprised of the Departments of Justice, State, and Homeland Security, along with the CIA, the Office of the Director of National Intelligence, and the Joint Chiefs of Staff—cleared Ba Odah for transfer. In the lead up to yesterday’s hearing, the State Department reportedly urged the government not to oppose Ba Odah’s petition for release because arguing for the continued imprisonment of a cleared detainee would send the wrong message about the risk posed by cleared Guantanamo detainees generally, making it more difficult to negotiate their transfers to other countries.

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].”

Meanwhile, President Obama recently threatened to veto the annual National Defense Authorization Act over onerous transfer certification requirements that would make it much more difficult to move detainees overseas. Ironically, as Ba Odah’s lawyer noted, if the government had not opposed his petition and simply permitted a court to order his release, it would have exempted Ba Odah from the current less onerous yet still cumbersome transfer requirements.

In fact, the government took this precise route in 2013 when it did not oppose Sudanese detainee Ibrahim Othman Ibrahim Idris’s petition for release on medical grounds. Idris was repatriated shortly thereafter.

President Obama recently said of the prison at Guantanamo: “I am going to do everything I can to close it.”

That statement doesn’t square with the president’s refusal to instruct the Department of Justice not to oppose Ba Odah’s petition for release. The administration needs to stop getting in its own way, transfer the 54 cleared detainees, and fulfill President Obama’s promise to close Guantanamo.

For more on the steps the Obama Administration needs to take to close the prison before the president leaves office, see Human Rights First’s Blueprint: How to Close Guantanamo.