Case 1:06-cv-01668-TFH Document 283 Filed 08/24/15 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
_______________________________________
)
TARIQ ALI ABDULLAH BA ODAH,
)
)
Petitioner,
)
)
) Civil Action No. 06-1668 (TFH)
)
BARACK H. OBAMA, et al.,
)
)
Respondents.
)
_______________________________________)
NOTICE OF FILING
Attached to this notice are the public version of Respondents’ Opposition to
Petitioner’s Motion to Reinstate His Habeas Petition and For Judgment on the Record
and that brief’s exhibits, which had previously been filed under seal. (ECF No. 281)
(Aug. 14, 2015).
Dated: 24 August 2015

Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
JOSEPH H. HUNT
Branch Director
TERRY M. HENRY
Assistant Branch Director

Counsel for Respondents

__/s/ Ronald J. Wiltsie_______________
RONALD J. WILTSIE (DC Bar #431562)
ROBERT PRINCE
JOSEPH FOLIO
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, DC 20530
202/307-1401
ronald.wiltsie@usdoj.gov

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IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
_______________________________________
)
TARIQ ALI ABDULLAH BA ODAH,
)
)
Petitioner,
)
)
v.
)
)
BARACK H. OBAMA, et al.,
)
)
Respondents.
)
_______________________________________)

Civil Action No. 06-1668 (TFH)
Filed Under Seal

RESPONDENTS’ OPPOSITION TO PETITIONER’S
MOTION TO REINSTATE HIS HABEAS PETITION AND
FOR JUDGEMENT ON THE RECORD
INTRODUCTION
The United States Government remains committed to securing an appropriate transfer
location for Petitioner, who is approved for transfer, consistent with applicable U.S. law and
policy, and with the Executive’s commitment to reduce the detainee population at Guantanamo
Bay and to close the detention facility in a responsible manner that protects national security.
This filing is not intended to impede those efforts. In the meantime, with respect to the detainees
remaining at Guantanamo Bay, the Geneva Conventions reflect important humanitarian
principles of international law, including those for the care of personnel detained during armed
conflicts, principles that the United States strongly endorses. Pursuant to those principles, the
United States has treated Petitioner humanely. Military medical personnel routinely and
extensively have counselled Petitioner about the potentially severe medical consequences of his

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hunger strike, and have attempted over the course of his hunger strike to monitor his physical
and mental condition, attempts he has routinely rebuffed. Despite efforts by medical personnel
at Guantanamo Bay to preserve Petitioner’s life and health by enterally feeding him, his
continual refusal to consume regular nutrition over eight years has unfortunately, but predictably,
resulted in a significant weight loss. That weight loss and its potential consequences do not alter,
however, the lawfulness of Petitioner’s detention and, in turn, do not entitle Petitioner to a court
order requiring his release.1
Petitioner argues that the Government’s authority to detain him under the Authorization
for the Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (“AUMF”), is
constrained by principles reflected in certain provisions of the Geneva Convention Relative to
the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (“Third
Geneva Convention”), that address the repatriation of certain seriously ill prisoners of war in
armed conflicts among State Parties, also known as international armed conflicts. More
particularly, Petitioner argues that section 3-12 of Army Regulation 190-8, which is part of the
United States’ implementation of these provisions of the Third Geneva Convention, “authorizes
1

As a preliminary matter, Respondents object to the form of Petitioner’s filing because he has
not stated an appropriate legal basis to “reinstate” his habeas petition. Over one year ago, the
Court granted Petitioner’s Unopposed Motion to Dismiss Habeas Petition, (Mar. 3, 2014) (ECF
No. 270), albeit without prejudice. See Order (Mar. 11, 2014) (ECF No. 271). Therefore,
Petitioner should be required to file a new petition prior to the Court considering his motion for
medical release (styled here as a Motion for Judgment on the Record). Requiring a new petition
is even more appropriate here, where Petitioner asserts a new claim never raised in his habeas
petition as the basis for the requested order of release. See Al-Odah v. United States, 13-cv1420, Pet. for Writ of Habeas Corpus (D.D.C. Sep. 18, 2013) (ECF No. 2) (second habeas
petition filed by Guantanamo detainee after Court had denied the original petition); cf. Gonzalez
v. Crosby, 545 U.S. 524, 532 (2005) (“A motion that seeks to add a new ground for relief … will
of course qualify [as a new application for habeas corpus].”)

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the habeas relief” Petitioner seeks and entitles him to an order of release from this Court. See
Mot. at 15-16.
To the extent Petitioner grounds his claim for relief in Army Regulation 190-8, the
regulation does not apply to Petitioner by its own terms. Petitioner does not fall within any
category of detainees to which the relevant provision of the regulation applies. Further, even if
the regulation did apply to him, Petitioner could not qualify for repatriation under the regulation
because detainees who refuse medical treatment for their condition are ineligible under the
relevant standard for direct repatriation, which, by its plain terms, requires a certain prognosis in
spite of treatment. Moreover, even in situations where the Geneva Conventions fully apply as a
matter of law, under the express terms of the Third Convention, detainees whose injuries are
self-inflicted are not entitled to consideration for medical repatriation. Here, Petitioner’s
voluntary, persistent hunger strike and his refusal to permit treatment remove him from
consideration under the principles reflected in the repatriation provisions and disqualify him
from eligibility under Army Regulation 190-8. Indeed, his refusal to permit basic medical
testing procedures to ascertain his condition only reinforces that conclusion.
And lastly, aside from the terms of Army Regulation 190-8, the claim for medical release
Petitioner raises would require the Court to make determinations that are not within the province
of the Judiciary. Although the relevant provisions of the Third Geneva Convention governing
repatriation of seriously ill detainees apply to only an international armed conflict, they reflect
important humanitarian principles of international law; nonetheless, how those principles may
operate in a given conflict, including with respect to individual detainees, is not an appropriate
matter for judicial review. In this non-traditional, non-international armed conflict, it is even

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more appropriate for the Executive, and not the Courts, to make those decisions. Indeed, even in
conflicts to which these provisions of the Third Convention are binding upon State Parties to the
conflict, we are not aware of any court ever ordering the release of an otherwise lawfully
detained individual under these provisions of the Convention. The Executive Branch respects
the humanitarian principles reflected in the provisions of the Third Geneva Convention
concerning the repatriation of seriously ill detainees and takes them into account when
determining whether it should continue to detain individuals in the circumstances of this noninternational armed conflict; the application of these principles, however, is not for the Judiciary
to decide, especially with respect to particular detainees.
Accordingly, Petitioner’s motion should be denied.
BACKGROUND
Procedural History
Petitioner Tariq Ali Abdullah Ba Odah (ISN 178) is a Yemeni national currently detained
at Guantanamo Bay. Resps.’ Notice Lifting Protected Info. Desig. of Decs. by Guantanamo Bay
Rev. Task Force, Ex. 1, Guantanamo Rev. Dispositions at 10 (July 8, 2013) (ECF No. 261)
(“Guantanamo Review Dispositions Chart”). He initially petitioned for a writ of habeas corpus
on September 28, 2006. Pet. (ECF No. 1). The government responded by filing its Factual
Return (ECF No. 64), justifying Petitioner’s detention under the AUMF, as informed by the laws
of war, on November 25, 2008. Petitioner, however, never prosecuted his petition, filing no
traverse in response to the factual return and seeking no discovery. Instead, on January 12, 2009,
Petitioner sought an indefinite stay of this proceeding, Unopposed Mot. to Stay Habeas Procs.
(ECF No. 83), which Judge Kennedy granted the next day, Order (Jan. 13, 2009) (ECF No. 85).

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The indefinite stay was renewed by this Court over two years ago. Minute Order (July 23,
2013). Subsequently, sixteen months ago, Petitioner moved to dismiss his petition without
prejudice. Unopposed Mot. to Dismiss Habeas Pet. (Mar. 3, 2014) (ECF No. 270). The
Government did not oppose, and the Court granted that request. Order (Mar. 11, 2014) (ECF
No. 271).
Petitioner’s Transfer Status
In January 2009, the President issued Executive Order 13,492, which required the
Executive Branch to undertake a prompt and thorough review of each Guantanamo Bay detainee,
including “whether their continued detention is in the national security and foreign policy
interests of the United States and in the interests of justice.” 74 Fed. Reg. 4897-4899, § 2(d)
(Jan. 27, 2009). The Task Force created pursuant to this Executive Order determined that,
“given the current security situation in Yemen, [Petitioner warranted] conditional detention
pursuant to the Authorization for the Use of Military Force (2001), as informed by principles of
the laws of war.” Guantanamo Review Dispositions Chart at 10; see also Final Report,
Guantanamo Review Task Force (Jan. 22, 2010) (“Task Force Final Report”), available at
www.justice.gov/ag/guantanamo-review-final-report.pdf (last visited July 30, 2015).2 Under that
2

The Task Force gave “careful consideration to the threat posed by [each] detainee,” Task Force
Final Report at i, and determined “whether the threat could be mitigated through appropriate
security measures,” id. at 4. The Task Force examined intelligence concerning the security
situation in Yemen, and observed that “the security situation in Yemen had deteriorated,” and
that “Al-Qaida was gaining strongholds in certain regions of the country, and the government of
Yemen was facing a rebellion in other regions.” Id. at 18. The Task Force also noted that “[t]he
involvement of Al-Qaida in the Arabian Peninsula . . . in the [December 2009] attempted
bombing of an airplane headed to Detroit underscored the continued need for a deliberate
approach toward any further effort to repatriate Yemeni detainees.” Id. The Task Force stated
that a decision to approve a detainee for transfer “reflects the best predictive judgment of senior

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designation, Petitioner “may be transferred if the security situation in Yemen improves[] [or if]
an appropriate rehabilitation program or third-country resettlement option becomes available[.]”
Guantanamo Review Dispositions Chart at 10; see also Task Force Final Report at 12-13.
Petitioner’s Medical Condition
Petitioner has ready access to a comprehensive medical care system. Currently, two
family physicians, an internist/oncologist, a psychiatrist, a psychologist, and a physician’s
assistant—all board-certified—are assigned to care solely for Petitioner and 100 of his fellow
detainees at Guantanamo Bay. Ex. 1, Decl. of Senior Medical Officer at ¶ 4 (“SMO Decl.”).
Additionally

nurses, corpsmen, and medical technicians are also dedicated to

care solely for these detainees. Id. To the extent that additional health-care services are
required, the detainees have available to them the services of the Naval Hospital Guantanamo, as
well as the services of specialists who can be flown to Naval Station Guantanamo as needed. Id.
All medical staff who deal with any of the detainees receive in-depth training on how to provide
quality medical care in a detention setting. Id. ¶ 5. Of note, health-care personnel do not
participate in detention-related activities or operations for any reason other than to provide
health-care services in an approved clinical setting, to conduct disease prevention and other
approved public-health activities, or to advise proper command authorities regarding the health
of detainees. Id. ¶ 6. Medical care is not provided or withheld based on a detainee’s compliance

government officials … that any threat posed by the detainee can be sufficiently mitigated
through feasible and appropriate security measures in the receiving country.” Id. at 17. The
Task Force also noted that it was “important to emphasize that a decision to approve a detainee
for transfer does not equate to a judgment that the government lacked legal authority to hold the
detainee.” Id.

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or noncompliance with detention-camp rules or on his refusal to accept food or drink. Id. ¶ 7.
Medical care and treatment are offered based solely on a detainee’s need for care. Id.
Detainees may access medical care by simply asking a guard at any time or asking the
medical personnel who make daily rounds of the cell blocks. SMO Decl. ¶ 8. Additionally,
medical staff will investigate any potential detainee medical issues that are brought to their
attention by JTF-GTMO guards or staff. In general, medical care requires the consent of the
detainee. Id.
Petitioner is aware of how to access medical care, if he wishes. For example, last
November he initiated treatment for a cyst, consenting to its removal and to post-operative
wound care until it healed (of note, the wound promptly and properly healed despite Petitioner’s
low body weight). Id. ¶ 23. He has also requested medical authorization for and received
thermal shirts, pants, and blankets due to his low body weight. Id. ¶ 25. He has also requested
and received medical approval for a special mattress to alleviate the symptoms of and prevent
future pressure ulcers. Id.
When it comes to medical treatment for his low weight due to his hunger strike, however,
Petitioner refuses virtually all care. Despite routine counseling concerning the medical
consequences of his fast, SMO Decl. at ¶ 12, he continually disregards that advice, instead
actively thwarting attempts to treat him. He refuses nearly all medical appointments to discuss
his condition: records show that he has attended only 3 of approximately 12 of his most recent
health care appointments since the fall of 2014, one of which was for the cyst and one for a
dental appointment. Id. ¶¶ 16-18, 22-23. Attempts by the Senior Medical Officers to engage
him during either his enteral feedings or by visiting his cell have more often than not been

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rejected, sometimes vehemently so. Id. ¶ 18. Of note, he has never consented to meet with or
even discuss his medical condition with the current Senior Medical Officer, who also is
designated as his primary care manager. Id. ¶¶ 16, 18. Since February 2013, he has refused at
least three requests for blood tests needed to assess his condition (tests including complete blood
counts, comprehensive metabolic panel, thiamine, and pre-albumin), the last refusal occurring
just last month. Id. ¶ 16.
Though Petitioner now complains in his brief of multiple symptoms allegedly stemming
from his continued fast, including:
exhaustion, decreased vision, swollen feet, stiff joints, migraine-like headaches,
nervousness, agitation, muscle and nerve shivering, needle-like pain in his heart,
racing heartbeat, loss of sensation in his extremities, dizziness, back pain, and
decreased ability to mentally focus [Mot. at 7],
he has brought few of these complaints to the attention of Guantanamo medical staff (most
notably, he has complained of back pain), though not recently. Id. ¶ 22-23. And even when he
did complain of back pain in December, 2014, he subsequently refused to let the staff assess or
treat that complaint. Id. ¶ 23.
Most troubling, he appears to be circumventing the protocols put in place to maintain him
at a healthy weight and to ensure he receives appropriate nutrition. Based on his declining
weight and refusal to eat, a medical determination was made in February 2007 to approve
Petitioner for enteral feeding, if necessary. SMO Decl. ¶ 14. That approval continues to this
day, with Petitioner approved for twice daily enteral feedings to attempt to provide him with
nutrition should he refuse to consume it on his own. Id. ¶ 21. Recently, however, he has

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occasionally purged his enteral feedings, either while still being fed or later in his cell. Id. ¶ 1819.
Additional circumventions include deceiving Guantanamo personnel to avoid the enteral
feedings themselves. Though Petitioner is approved for enteral feeding, protocol provides that a
detainee may usually avoid one or both enteral feedings a day either by eating sufficient solid
food from the meals that are delivered to his cell three times per day, or by voluntarily drinking
the liquid supplement used in his enteral feedings. Id. ¶ 13. Petitioner, however, has recently
been detected flushing food (and additional honey and olive oil that he has specially requested)
from the delivered meals down the toilet and otherwise hiding food in his cell. Id. 18, 21.
Similarly, Petitioner has been actively concealing his failure to drink his nutritional supplements:
staff have observed him accepting a full cup, placing it on the ground, but then picking up and
drinking from an almost empty cup he had previously placed on the floor, and presenting the
substitute for inspection; he has also been detected pretending to drink from an empty cup and
pouring the supplement into the toilet. Id. ¶ 21. All of these actions suggest attempts to have
Guantanamo personnel credit Petitioner with consuming food he did not eat so that he may
bypass the next enteral feeding.3
The Guantanamo Senior Medical Officer assesses Petitioner’s current health as poor.
SMO Decl. ¶ 14. Since beginning his fast in 2007, Petitioner’s weight has fluctuated, but
3

Relatedly, in September 2014, a concern about a sudden weight loss led a former Senior
Medical Officer to suspect Petitioner was not actually consuming the food or supplements that he
was being credited with. SMO Decl. ¶ 20. Consequently, the former SMO suspended
Petitioner’s ability to avoid his enteral feedings by otherwise consuming nutrition. Id. Petitioner
soon gained back some of the lost weight, and he was subsequently permitted to again bypass
enteral feedings by consuming sufficient nutritional supplement. Id.

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consistently has followed a downward trend, falling from 133 pounds to his current weight of
approximately 74 pounds. Id. ¶ 14 & n.2. But because Petitioner routinely refuses to allow
Guantanamo medical personnel to properly examine him, and refuses to consent to needed
blood-chemistry analyses, the assessment of Petitioner’s health is based primarily on his weight
loss. To gather what information that he could without involuntarily subjecting Petitioner to
medical tests, the Senior Medical Officer recently had Petitioner placed on line-of-sight
continual observation to monitor his daily activities. Id. ¶ 18. In addition to noting his
surreptitious discarding of food, observers noted Petitioner functioning normally in his daily life,
conducting activities such as walking in his cell, talking to his neighbors, praying, singing, and
regularly sleeping. Id. ¶. Petitioner’s energy level appeared normal. Id.
Nevertheless, the Senior Medical Officer remains very concerned about Petitioner’s
health. SMO Decl. ¶ 26. Should his health worsen, medical personnel are prepared to admit him
to the Detainee Hospital and place him on continuous enteral feeding, to allow slower feeding
and, so, limit Petitioner’s ability to purge the nutrition. Id. Additionally, involuntary medical
testing may be considered if his condition worsens. Id.
ARGUMENT
As explained below, Petitioner’s motion fails for two reasons. First, Army Regulation
190-8 cannot serve, by its own terms, as a source for this Court to grant a motion for Petitioner’s
release: Petitioner does not fit within any of the possible designations for detainees to whom the
relevant provisions would apply. Even if they did apply, the source of his alleged physical
condition disqualifies him from consideration, and he does not meet the necessary prerequisites
concerning the need for him to have sought treatment for the condition. And second, the treaty

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framework, historical practice, and relevant case-law analogies all demonstrate that
determinations regarding the medical repatriation of law-of-war detainees involve matters in
which the Executive is uniquely competent and for which the Executive should be accorded great
deference and are not within the province of the Judiciary. In fact, no court has ever ordered the
release of a law-of-war detainee under the circumstances presented here.
I.

Legal Background

A.

The Third Geneva Convention
Generally, in an international armed conflict, Articles 109 through 117 of the Third

Geneva Convention address the direct repatriation and accommodation in neutral countries of
certain seriously sick and seriously wounded prisoners of war.4 Specifically, Articles 109 and
110 provide that certain types of sick and wounded prisoners of war—individuals who are
“gravely diminished” and incurable; individuals who are “not likely to recover within one year,
whose condition requires treatment and whose mental or physical fitness seems to have been
gravely diminished”; and individuals “who have recovered but whose mental or physical fitness

4

The Third Geneva Convention sets forth rules concerning the treatment of prisoners of war. To
qualify for the full panoply of protections afforded prisoners of war, the Third Geneva
Convention sets forth certain criteria that must be met by the forces involved in the armed
conflict. To determine whether an individual qualifies for prisoner of war status, the Third
Geneva Convention first looks to determine whether the conflict at issue is an international
armed conflict or a non-international armed conflict. Pursuant to Article 2 of the Convention,
the full protections of the Third Geneva Convention apply to “all cases of declared war or of any
other armed conflict which may arise between two or more of the High Contracting Parties, even
if the state of war is not recognized by one of them.” GC III, Art. 2. In contrast, Article 3 applies
to non-international armed conflicts, and states that “[i]n the case of armed conflict not of an
international character occurring in the territory of one of the High Contracting Parties, each
party to the conflict shall be bound to apply, as a minimum, the following … [detained persons]
shall in all circumstances be treated humanely.” Id. Art. 3.

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seems to have been gravely and permanently diminished”—shall be repatriated directly. GC III,
Arts. 109, 110. Articles 109 and 110 also provide that other types of sick and wounded prisoners
of war—prisoners whose recovery may be expected within one year, or whose mental or
physical health is seriously threatened by continued captivity but accommodation in a neutral
country might remove that threat—may be accommodated in a neutral country. GC III, Art. 109,
110. Articles 111 through 116 address the internment of certain sick and wounded prisoners of
war in neutral countries; logistics regarding the implementation of Articles 109 and 110; and
special considerations for implementing Articles 109 and 110, including, as provided in Article
114, that “[p]risoners of war who meet with accidents shall, unless the injury is self-inflicted,
have the benefit of the provisions of this Convention as regards repatriation or accommodation in
a neutral country.” GC III, Arts. 111-116. Finally, Article 117 also independently obligates the
receiving state to ensure that “[n]o repatriated person may be employed on active military
service.” GC III, Art. 117.
In implementing these Convention obligations in international armed conflicts, Article
110 expressly contemplates that parties to the conflict have flexibility to interpret the standards
for repatriation set by that Article by concluding special agreements “to determine the cases of
disablement or sickness that would entail direct repatriation or accommodation in a neutral
country.” GC III, Art. 110. In the absence of such an agreement, such determinations are to be
made “in accordance with the principles laid down in the Model Agreement,” which is Annex I
to the Third Geneva Convention. Id. The Convention then requires medical professionals to
determine whether sick or wounded prisoners of war suffer from the type of condition or ailment

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determined by the parties to the conflict (or by reference to the Model Agreement) to meet the
standards for repatriation set forth in Article 110.
B.

Army Regulation 190-8
Army Regulation 190-8 is one of several regulations addressing detainee operations. The

general purpose of Army Regulation 190-8 is to “establish[] policies and planning guidance for
the treatment, care, accountability, legal status, and administrative procedures for Enemy
Prisoners of War, Civilian Internees, Retained Persons, and Other Detainees.” Army Regulation
190-8 at i. By promulgating Army Regulation 190-8, the Secretaries of the Army, Navy, and Air
Force5 exercised their authorities and responsibilities to provide the United States armed forces
with guidance regarding the treatment of detainees, including ensuring that the United States
military personnel (through military disciplinary mechanisms) act in accordance with
international law, in particular the 1949 Geneva Conventions. See Army Regulation 190-8 at i
(“This regulation implements Department of Defense Directive 2310.1 [currently, DODD
2310.01E (Aug 19, 2014)] and establishes policies and planning guidance for the treatment, care,
accountability, legal status, and administrative procedures for” detainees); id. at 1 (“This
regulation implements international law . . . relating to” the administration, treatment,
employment and compensation of detainees).

5

Army Regulation 190-8 was also issued by the Navy, see OPNAVINST 3461.6; by the Marine
Corps, see MCO 3461.1; and by the Air Force, see AFJI 31-304. Because the Army serves as
the Executive Agent for detainee operations policy within the Department of Defense, AR 190-8
§ 1-4(b), these four instructions will collectively be referred to as Army Regulation 190-8.

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Petitioner’s motion relies on section 3-12(l) of Army Regulation 190-8, which reflects
one aspect of the United States’ implementation of the medical repatriation provisions of the
Third Geneva Convention, and provides:
The following EPW [Enemy Prisoners of War] and RP [Retained Personnel] are
eligible for direct repatriation:
(1) EPW and RP suffering from disabilities as a result of injury,
loss of limb, paralysis, or other disabilities, when these disabilities
are at least the loss of a hand or foot or the equivalent.
(2) Sick or wounded EPW and RP whose conditions have become
chronic to the extent that prognosis appears to preclude recovery in
spite of treatment within 1 year from inception of disease or date of
injury.
Petitioner all but ignores, however, the remaining pertinent provisions of section 3-12,6
provisions that govern the establishment of a Mixed Medical Commission to evaluate sick and
injured individuals potentially subject to the regulation and that address procedures to guide that
Commission:
a. Sick and wounded prisoners will be processed and their eligibility determined
for repatriation or accommodation in a neutral country during hostilities. Both
will be according to the procedures set forth below.
(1) Sick and wounded prisoners will not be repatriated against their
will during hostilities.
(2) Procedures for a Mixed Medical Commission will be
established by HQDA [Headquarters, Department of the Army],
according to this regulation and Annex II of the GPW [Third
Geneva Convention]. The purpose of the Commission will be to
determine cases eligible for repatriation. The Mixed Medical
Commission will be composed of three members. Two of the
6

Petitioner relegates a passing reference to the Mixed Medical Commission procedures to a
footnote in his brief, suggesting there that his alleged poor physical condition should excuse him
from submitting to the requirements of the regulation that he invokes. Mot. at 18 n.5.

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members, appointed by the ICRC [International Committee of the
Red Cross] and approved by the parties to the conflict, will be
from a neutral country. As far as possible, one of the neutral
members will be a surgeon and the other a physician. The third
member will be a medical officer of the U.S. Army selected by
HQDA. One of the members from the neutral country will act as
chairman.
b. If for any reason the use of neutral doctors cannot be arranged for by the ICRC,
the United States, acting in agreement with the Protecting Power concerned, will
set up a Medical Commission. This Commission will perform the duties of the
Mixed Medical Commission.
c. The Mixed Medical Commission will:
(1) Examine EPW, and RP who have applied for repatriation.
(2) Inspect clinical records pertaining to these EPW.
(3) Determine those cases eligible for repatriation or
hospitalization in a neutral country.
d. Decisions made by the Mixed Medical Commission will be a majority vote
and cannot be changed to the detriment of the EPW and RP examined, except
upon concurrence of the Commission.
...
f. The United States will carry out the decisions of the Mixed Medical
Commission as soon as possible and within 3 months of the time after it received
due notice of the decisions. [AR 190-8 §§ 3-12 a-d, f].
Army Regulation 190-8 also defines Enemy Prisoner of War7 and Retained Personnel,8 as
used in the regulation. The regulation also provides for a category of “Other Detainee,” a

7

Army Regulation 190-8 defines “Enemy Prisoner of War” as:
A detained person as defined in Articles 4 and 5 of the Geneva Convention
Relative to the Treatment of Prisoners of War of August 12, 1949. In particular,
one who, while engaged in combat under orders of his or her government, is
captured by the armed forces of the enemy. . . . [AR 190-8, App. B, § II – Terms].

8

Army Regulation 190-8 defines “Retained Personnel” as:

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temporary category for individuals who are awaiting a determination whether they qualify for
any of the other categories of detainees to whom the regulation applies:
Persons in the custody of the U.S. Armed Forces who have not been classified as
an EPW (article 4, GPW), RP (article 33, GPW), or CI [Civilian Internee] (article
78, GC [Geneva Convention Relative to the Protection of Civilian Persons in
Time of War]),9 [who] shall be treated as EPWs until a legal status is ascertained
by competent authority.” [AR 190-8, App. B, § II – Terms].
Of note, Army Regulation 190-8 provides that “[i]n the event of conflicts or
discrepancies between this regulation and the Geneva Conventions, the provisions of the Geneva
Conventions take precedence.” AR 190-8 at ¶1-1(b)(4).

Enemy personnel who come within any of the categories below are eligible to be
certified as retained personnel (RP).
a. Medical personnel who are members of the medical service of
their armed forces.
b. Medical personnel exclusively engaged in the—
(1) Search for, collection, transport, or treatment of, the
wounded or sick.
(2) Prevention of disease.
(3) Staff administration of medical units and establishments
exclusively.
c. Chaplains attached to enemy armed forces.
d. Staff of National Red Cross societies and other voluntary aid societies
duly recognized and authorized by their governments. The staffs of
such societies must be subject to military laws and regulations. [AR
190-8, App. B, § II – Terms].
9

A Civilian Internee is a person “who is interned during armed conflict or occupation for
security reasons or for protection or because he has committed an offense against the detaining
power.” Army Regulation 190-8, Appendix B, Section II – Terms. This category of detainee is
not relevant here.

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II.

Petitioner Is Not Entitled To A Court Order
For Release Under Army Regulation 190-8.
As noted above, section 3-12(l) of Army Regulation 190-8 makes “eligible for direct

repatriation” certain “[s]ick or wounded” individuals “whose conditions have become chronic to
the extent that prognosis appears to preclude recovery in spite of treatment within 1 year from
inception of disease or date of injury.” Army Regulation 190-8 § 3-12(l)(2). Petitioner may not
invoke Army Regulation 190-8 to win release, however, for at least two reasons. First, he does
not belong to one of the three detainee designations to which the repatriation provisions might
apply. In particular, contrary to his claim, he is not an “Other Detainee” awaiting a status
determination under the regulation. And second, even if the provision could apply to him,
because Petitioner has caused his medical condition by his intentional long-term fasting, he is not
entitled to consideration for medical repatriation. Moreover, because he refuses to permit
treatment, or even basic medical examinations and tests, he would be disqualified for relief under
the relevant terms and protections of Army Regulation 190-8.
A. Petitioner Is Not a Detainee to Whom Section 3-12(l) Applies.
Section 3-12(l) of Army Regulation 190-8 does not apply to Petitioner by its very terms.
That section applies only to detainees classified as either Enemy Prisoners of War or Retained
Personnel. AR 190-8, § 3-12(l) (“The following EPW [Enemy Prisoners of War] and RP
[Retained Personnel] are eligible for direct repatriation: ….”). The section also applies to Other
Detainees insofar as Other Detainees are to be “treated as EPWs until a legal status is ascertained
by competent authority.” AR 190-8, App. B, § II – Terms. Thus, an Other Detainee, by virtue of
his interim treatment as an Enemy Prisoner of War, could temporarily fall within the scope

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section 3-12(l). Therefore, to be eligible for direct repatriation under section 3-12(1), Petitioner
must be an Enemy Prisoner of War, a Retained Person, or an Other Detainee pending a status
determination.
Here, Petitioner does not claim to be—and, as set out below, in fact is not—a Retained
Person or an Enemy Prisoner of War. Nor is he an Other Detainee awaiting a status
determination. Consequently, section 3-12(l) does not apply to him and, so, cannot provide the
underlying authority for an order of release.
1.

Petitioner is not a Retained Person.

Retained Personnel are essentially military medical and religious personnel, and some
non-governmental-organizations personnel. See GC III, Art. 33; AR 190-8, Appendix B, Section
II – Terms. 10 Petitioner has never asserted—and does not assert here, see Mot. at 17—that he
fits any of the categories of individuals who could qualify him as Retained Personnel.
2.

Petitioner is not an Enemy Prisoner of War.

Similarly, Petitioner does not claim to be an Enemy Prisoner of War. Nor is he. As
defined in Army Regulation 190-8, an Enemy Prisoner of War is a detained person in an
international armed conflict who meets the requirements defined in Article 4 of the Third Geneva
10

Retained Personnel are afforded “special immunity” in traditional armed conflicts. See Int’l
Comm. of the Red Cross, Commentary on First Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick In Armed Forces in the Field, at 219 (Pictet, ed. 1952) (“GC
I Commentary”); see also Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T 3217, 7 U.N.T.S. 85
(“GC I”), Art. 24. As pertinent there, Retained Personnel may be “retained only in so far as the
state of health, the spiritual needs and the number of prisoners of war require.” GC I, Art. 28,
para. 1 (emphasis added). If retained, they are decidedly not prisoners of war. Id. And if they
are not necessary to care for prisoners of war, they must be repatriated as soon as is practicable.
Id. Art. 30, para. 1,

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Convention.11 See AR 190-8, Appendix B, Section II – Terms. Here, the President previously
determined that Taliban and al-Qaida forces are not entitled to designation as Enemy Prisoners of
War under the Third Geneva Convention,12 and a Combatant Status Review Tribunal determined
11

Article 4 of the Third Geneva Convention defines which detainees in an international armed
conflict may qualify for prisoner-of-war status, providing in pertinent part:
A. Prisoners of war, in the sense of the present Convention, are persons
belonging to one of the following categories, who have fallen into the power
of the enemy:
(1) Members of the armed forces of a Party to the conflict as well as members
of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps,
including those of organized resistance movements, belonging to a Party to
the conflict and operating in or outside their own territory, even if this
territory is occupied, provided that such militias or volunteer corps, including
such organized resistance movements, fulfill the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and
customs of war. [GC III, Art. 4]

12

The United States’ armed conflict against al-Qaida forces is a non-international armed conflict,
subject as a matter of the Third Geneva Convention only to the protections afforded in Article 3,
because al-Qaida is a terrorist organization and not a State that is a High Contracting Party to the
Third Geneva Convention. See White House Press Secretary Announcement of President Bush’s
Determination Re Legal Status of Taliban and Al Qaeda Detainees (Feb. 7, 2002), available at
http://www.state.gov/s/l/38727.htm (Al Qaida “is an international terrorist group and cannot be
considered a state party to the Geneva Convention[s].”) (“President’s Determination”).
Consequently, al-Qaida’s “members . . . are not covered by the Geneva Convention, and are not
entitled to POW status under the treaty.” Id. As for Taliban forces, the President determined
that they would not be entitled to prisoner-of-war status under Article 4 of the Third Geneva
Convention because the Taliban forces did not comply with that provision’s prerequisite
conditions, in particular that they did “not effectively distinguish[] themselves from the civilian
population of Afghanistan,” did “not conduct their operations in accordance with the laws and
customs of war,” but rather “knowingly adopted and provided support to the unlawful terrorist

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that Petitioner is detainable under the AUMF because he was a member of or supported Taliban
or al-Qaida forces.13
Thus, because the Executive, through the Combatant Status Review Tribunal, has
determined that Petitioner is properly detainable under the AUMF as member of al-Qaida or
Taliban forces, Petitioner is not entitled to the status of an Enemy Prisoner of War. See Hamdan
v. Rumsfeld, 415 F.3d 33, 43 (D.C. Cir. 2005), rev’d on other grounds, 548 U.S. 557 (2006)
(“The President found that [petitioner] was not a prisoner of war under the Convention. Nothing
in [Army Regulation 190-8], and nothing [petitioner] argues, suggests that the President is not a
‘competent authority’ for these purposes.”); see also United States v. Hamidullin, 2015 WL
4241397 (E.D.Va.) at *19-*20 (holding member of Taliban associated force was not entitled to
prisoner-of-war status).
3.

Petitioner is not an Other Detainee.

Contrary to his assertion, see Mot. at 17, Petitioner also does not qualify for the interim
designation of Other Detainee. As explained above, the Executive has already determined that

objectives of al Qaeda.” President’s Determination. Nevertheless, pursuant to Common Article
3, the Third Geneva Convention still requires the United States to treat detained Taliban
members humanely. GC III Art. 3; see also Hamdan v. Rumsfeld, 548 U.S. 557, 629-31 (2006).
The United States’ armed conflict against the Taliban in Afghanistan currently is considered a
non-international armed conflict. See, e.g., ICRC, International Humanitarian Law & The
Challenges of Contemporary Armed Conflicts, at 725 (Sept. 2007), available at
https://www.icrc.org/eng/assets/files/other/irrc-867-ihl-challenges.pdf.)
13

Specifically, in 2004, a Combatant Status Review Tribunal (“CSRT”) determined that
Petitioner was a “member of, or affiliated with, the Taliban and al Qaida and participated in
military operations against the United States or its coalition partners.” Ex. 2, Excerpts from
CSRT Record at 0005, ¶ 3 (CSRT Decision Report Cover Sheet).

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al-Qaida and Taliban forces do not qualify for Enemy Prisoner of War status and has determined
that Petitioner was a combatant for Taliban or al-Qaida forces. Accordingly, his status is one of
a detainee not entitled to Enemy Prisoner of War status and, consequently, he is not entitled to
the protections afforded those entitled to the designation. Rather he is a detained former
combatant entitled to the protections of Article 3.
Petitioner cites no case that would compel a different result. At best, Al Warafi and
Aamer both stand for the proposition that a Guantanamo Bay detainee may invoke Army
Regulation 190-8 in his habeas proceedings if the circumstances warrant. See Al Warafi, 716
F.3d 627, 629 (D.C. Cir. 2013); Aamer v. Obama, 58 F. Supp. 3d 16, 26-27 (D.D.C. 2014). But
in neither of those cases was the regulation found to warrant relief. In petitioner Al Warafi’s
case, the Court of Appeals had initially remanded that case so that the district court could
determine whether the petitioner could qualify for repatriation as a Retained Person as, he
claimed, permanent and exclusive medical personnel. Al Warafi v. Obama, 409 Fed. App’x 360,
361 (D.C. Cir. 2011). But because the district court subsequently found and Court of Appeals
affirmed that the petitioner did not meet the requirements for such personnel, both courts found
that Army Regulation 190-8 did not offer relief.14 716 F.3d at 629-631. Similarly, in Aamer,
14

Additionally, in Al Warafi the Court of Appeals held that a Guantanamo detainee may invoke
Army Regulation 190-8 only insofar as it “explicitly establishes a detainee’s entitlement to
release.” 716 F.3d at 629. On the facts presented in that case, the petitioner there might have
been explicitly entitled to release had he been found to be full-time, exclusive medical personnel,
given that provision of medical care at Guantanamo by the United States arguably may have
obviated the need to retain detainee medical personnel, see supra note 10. Here, however, even
if Petitioner could be classified as an Other Detainee, then he still would not be able to establish
his explicit entitlement to release. Rather, the provisions of Army Regulation 190-8 invoked by
Petitioner require the Department of the Army first to establish procedures for a Mixed Medical
Commission, and then arrange for appointment of members of the Commission. Once

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Judge Collyer expressly did not decide that the petitioner there was entitled to treatment as a
prisoner of war through the placeholder status of Other Detainee. Rather, she ruled that,
assuming he could show he should be so designated, Petitioner’s claim was not ripe because he
had neither applied for repatriation nor requested an examination by a Mixed Medical
Commission, 58 F. Supp. 3d at 26-27.15 Accordingly, at best both al Warafi and Aamer stand

established and provided with governing procedures and criteria, it would be for the Commission
to determine which detainees, if any, “are eligible for direct repatriation.” AR 190-8 § 3-12(l);
see also Aamer, 58 F. Supp. 3d at 26 n.9 (noting that “[t]he applicability of Section 3-12 to
Petitioner is distinctly unclear” because “Section 3-12(l) speaks only in terms of eligibility for
repatriation whereas Al Warafi[] requires an explicit showing of an entitlement to release”). In
essence, Petitioner asks this Court to make a determination, and order relief (repatriation or
resettlement), that the regulation leaves to the operation of a Mixed Medical Commission in
appropriate circumstances. Having sought to invoke the protections of Army Regulation 190-8,
Petitioner should not be permitted to avoid the procedures and process detailed therein and
obtain a release order outright. See Aamer, 58 F. Supp. 3d at 26-27 (denying motion for medical
release for failure to have first applied to a Mixed Medical Commission).
15

One other Judge of this District has been presented with a motion similar to Petitioner’s,
seeking an order of release based on a Guantanamo detainee’s alleged poor health. In Al-Adahi
v. Obama, No. 05-280, Mem. & Order, (D.D.C. Aug. 7, 2014) (ECF No. 653), Judge Kessler
denied the motion, holding that such relief is foreclosed by the Court of Appeals decision in
Awad v. Obama, 608 F.3d 1 (D.C. Cir. 2010). See Awad, 608 F.3d at 11 (“Whether a detainee
would pose a threat to U.S. interests if released is not at issue in habeas corpus proceedings in
federal courts concerning aliens detained under the authority conferred by the AUMF.”); see also
Anam v. Obama, 696 F. Supp.2d 1, 4 (2010) (noting that the Executive can detain those who are
part of al-Qaida “even if that individual does not presently pose a threat to the security of the
United States.”). Judge Kessler explained that Awad rejected an argument by a Guantanamo
petitioner that the district court erred in denying his petition without a specific factual finding
that he, with an amputated leg, would be a threat to the United States or its allies if released. AlAdahi, Mem. & Order at 2. “The Court of Appeals went on to make it clear that ‘[w]hether a
detainee would pose a threat to U.S. interests if released is not the issue in habeas corpus
proceedings in federal courts concerning aliens detained under the authority conferred by the
AUMF.’” Id. at 3 (quoting Awad, 608 F.3d at 11). Petitioner here, accordingly, correctly
disclaims that his alleged inability to pose a threat were he released provides a basis for his
motion for release. See Mot. at 19 n. 6.

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for only the proposition that a detainee may invoke Army Regulation 190-8 if the circumstances
warrant, not that every (or even any) Guantanamo detainee necessarily fits within one of the
regulation’s designations or necessarily is eligible for relief based on the regulation.
Petitioner’s argument is further flawed in two other respects. First, seeking to discredit
the determination that he is not an Enemy Prisoner of War, he mischaracterizes the status of the
Combatant Status Review Tribunal. The Third Geneva Convention provides that, in certain
cases of doubt, questions surrounding a detainee’s status as a prisoner of war are to be decided
by a “competent tribunal.” GC III, Art. 5; see AR 190-8 § 1-6. Under Army Regulation 190-8,
that tribunal is to consist of a military tribunal, made up of three commissioned officers, at least
one of whom holds a field-grade rank. AR 190-8 § 1-6(c). Even under Petitioner’s argument,
his Combatant Status Review Tribunal was so constituted, and its decision that he was a member
of Taliban or al-Qaida forces is a valid determination of Petitioner’s status by the Executive.
See Ex. 2, at p. 0004 (Appointment of CSRT #18, identifying the members for Petitioner’s
CSRT as an Air Force Colonel, an Air Force Lieutenant Colonel, and a Navy Lieutenant
Commander); see also Mem. for the Sec. of the Navy re Order Establ’g CSRT (Jul. 7, 2004),
available at http://www.defense.gov/news/Jul2004/d20040707review.pdf. Compare id. at (e)
(“A [CSRT] shall be composed of three neutral commissioned officers of the U.S. Armed Forces
… [t]he senior member (in the grade O-5 or above) shall serve as President of the Tribunal”)
with Hamdan, 415 F.3d at 43 (military commission qualifies as a “competent tribunal” under
Army Regulation 190-8 § 1-6(c) because it includes three commissioned officers, one of whom
is of field grade). Therefore, because the President already had determined that al-Qaida and
Taliban forces were not entitled to prisoner-of-war status, and a CSRT then determined that

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Petitioner was part of those forces, Petitioner is not an Other Detainee under Army Regulation
190-8 whose status has not yet been determined.
Second, Petitioner’s suggestion that since he has been determined not to be an Enemy
Prisoner of War then he must remain qualified as an Other Detainee, Mot. at 17-18, is illogical.
Essentially, Petitioner is arguing that having been found not to be an Enemy Prisoner of War, he
nevertheless remains entitled to the protections of that designation as an Other Detainee. But
that argument creates a false choice, one that leaves no room for the detention of individuals
fighting for forces that do not adhere to the laws of war. This error is made clear by the recently
reissued Department of Defense directive pertaining to its detainee program, Department of
Defense Directive 2310.01E (Aug. 19, 2014), available at
http://www.dtic.mil/whs/directives/corres/pdf/231001e.pdf. That Directive defines DoD policy
for detainee operations, and in doing so, it distinguishes between detainees who must receive a
“minimum” standard of protections, including, among others, those set forth in Article 3 of the
Third Geneva Convention, id. ¶ 3(a), and detainees who qualify for prisoner-of-war status and
who “enjoy protections and privileges beyond the minimum standards of treatment established in
this directive,” id. ¶ 3(g).
Petitioner’s approach also would undermine a core purpose of the Geneva Conventions,
namely to incentivize belligerents to comply with the laws of war by offering increased
protections. See DoD Law of War Manual § 4.3.1 (“States have been reluctant to conclude
treaties to afford unprivileged enemy belligerents the distinct privileges of POW status or the full
protections afforded civilians.”); cf. Al-Warafi, 716 F.3d at 632 (“Without compliance with the
requirements of the Geneva Conventions, the Taliban’s personnel are not entitled to the

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protection of the Convention.”). Distilled to its essence, Petitioner’s approach would afford, as a
matter of law, prisoner-of-war status—a privilege afforded only to state forces and certain
combatants who adhere to the laws and customs of war in the context of international armed
conflict—to individuals determined to be members of forces that decidedly do not adhere to the
laws of war. Army Regulation 190-8 does not support Petitioner’s attempt to contort the rules
for his benefit.
***
In summary, Petitioner does not qualify as a Retained Person, an Enemy Prisoner of War,
or an Other Detainee whose status is pending a determination. Absent one of those designations,
Army Regulation 190-8 does not require that the military consider him for medical repatriation
under Section 3-12(l). Consequently, that section may not provide any basis for this Court to
supplant the military and order Petitioner’s release.
B.

Petitioner Fails to Satisfy the Requirements of Army Regulation 190-8.
Even if the relevant provisions were applicable, both Army Regulation 190-8 and the

provisions of the Geneva Conventions that the regulation helps implement do not contemplate
Petitioner’s condition as providing a basis for medical repatriation. First, Article 114 of the
Third Convention specifies that direct repatriation is not available to a detainee whose
underlying injury is self-inflicted. GC III, Art. 114; see also GC III Commentary at 534 (“An
exception [to entitlement to medical repatriation] is made, for reasons which are easy to
understand, in the case of prisoners who willfully inflict injury on their own person . . .. In this
way, they will not be encouraged to resort to such practices.”). And second, the relevant
standards in both the Third Convention and Army Regulation 190-8 (in the very provision

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invoked by Petitioner, see Mot. at 17) require that the detainee accept treatment for his alleged
injury. See GC III, Annex I § I(A)(3) (direct repatriation is available to “[a]ll sick prisoners of
war whose condition has become chronic to the extent that prognosis seems to exclude
recovery—in spite of treatment—within one year from the inception of the disease”) (emphasis
added); AR 190-8 §3-12(l)(2)(providing for eligibility for direct repatriation “[s]ick or wounded
EPW and RP whose conditions have become chronic to the extent that prognosis appears to
preclude recovery in spite of treatment within 1 year from the inception of disease or date of
injury.”) (emphasis added). Here, Petitioner cannot satisfy either requirement. Accordingly,
even if section 3-12(l) could apply to Petitioner as an Other Detainee, that provision still could
not serve as a basis for an order requiring Petitioner’s release.
First as to the self-inflicted nature of Petitioner’s underlying medical condition, Petitioner
does not contest, but rather vigorously asserts, that his weight loss and the current possible
consequences are all due to his seven-year hunger strike. E.g., Mot. at 2 (“Mr. Ba Odah is on a
prolonged hunger strike . . .. Despite being force fed, Mr. Ba Odah is suffering from an array of
dangerous symptoms attributable to severe malnutrition.”); at 6 (“For years, Mr. Ba Odah has
suffered a variety of symptoms of undernourishment—surely not uncommon among other longterm hunger striking Guantanamo prisoners . . ..”); at 7 (“Other symptoms of Mr. Ba Odah’s
undeniable starvation signal that his body is overwhelmed.”). And the medical opinions
submitted with his motion are all predicated on the fact that the weight loss attributable solely to

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his hunger strike is the primary contributing factor to the possible medical complications he
might be suffering.16
Any remaining doubt as to the intentional nature of Petitioner’s weight loss should be
dispelled by his attempts to deceive the guard force into crediting him with eating food or
drinking his liquid nutritional supplements. SMO Decl. ¶¶ 18, 22 By flushing solid food down
the toilet and switching full cups of liquid supplement for empty cups, id., Petitioner has been
observed trying to be seen as consuming sufficient calories to skip needed enteral feedings. Such
actions confirm Petitioner’s intention to thwart even the basic attempts of Guantanamo Bay
medical personnel to ensure that he receives proper nutrition. Any harm resulting from his
weight loss being the result of an intentional course of conduct, Petitioner’s condition cannot
provide a basis for medical repatriation.17

16

Mot. Ex. 2, Decl. of Dr. J. Ghannam ¶ 3 (“Given Mr. Ba Odah’s roughly 75-pound body
weight, and Mr. Farah’s descriptions of his condition, I believe Mr. Ba Odah’s mental and
physical health is in grave jeopardy”); Ex. 3, Decl. of Dr. M. Bailony at ¶¶ 5-6 (“Nevertheless,
there is one dispositive fact that leads me to conclude that Mr. Ba Odah’s medical condition is
critical: the U.S. government has represented that his weight is 74.5 pounds as of April 20, 2015,
and that he is approximately 56% of his ideal body weight. ”); Ex. 4, Decl. of Dr. S. Crosby ¶ 5
(“Nevertheless, I am able to make certain diagnostic and prognostic assessments based on
information the government has made available that Mr. Ba Odah weighs only 74.5 pounds—
approximately 56% of his normal body weight . . . and on reported symptoms from Mr. Ba Dah’s
[sic] counsel.”).
17

Petitioner argues that his current medical condition entitles him to repatriation even if the
condition were self-inflicted. Mot at 22, n. 8. But rather than cite any legal authority for that
proposition, provide any legal analysis, or even merely distinguish Article 114, Petitioner simply
labels any counter-argument as “cynical.” Id. Perhaps, this “resort to . . . rhetoric reveals the
weakness of . . . [the] legal argument[].” Glossip v. Gross, No. 14-7955, slip op. at 29 (U.S. June
29, 2015). Granting Petitioner’s requested relief could have the unintended consequence of
encouraging similar actions by other detainees to effectuate court-ordered release.

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Second, related to the self-inflicted nature of Petitioner’s underlying condition,
Petitioner’s current medical condition cannot serve as a valid basis for medical repatriation
because he has refused treatment. Although in his motion he now complains of multiple
symptoms—extreme exhaustion, decreased vision, swollen feet, stiff joints, migraine-like
headaches, nervousness, agitation, muscle and nerve shivering, needle-like pain in his heart, a
racing heartbeat, loss of sensation in his hands and feet, dizziness, back pain, and decreased
ability to focus mentally, Mot. at 7—he has brought few of these symptoms to the attention of
Guantanamo medical personnel, and he has not permitted them to treat any of them. SMO Decl.
¶ 23. Most fundamentally, he has refused nearly all treatment for what he now claims is the
underlying cause of these ailments, his hunger strike. Since his hunger strike began in 2007,
Petitioner has been counseled repeatedly concerning the possible medical consequences of his
actions, advice he has ignored. Id. ¶ 12. He has been regularly asked to submit to medical
examinations and tests necessary to ascertain and treat his physical condition, requests he has
almost uniformly been rejected. Id. ¶¶ 16-19, 22-23. And has been repeatedly offered medical
appointments to assess his condition, offers he has routinely rebuffed. Id.
Under the relevant provision of Army Regulation 190-8, as well as the provisions of the
Third Geneva Convention it implements, Petitioner would not be currently eligible for medical
repatriation because he has declined fully to cooperate in the diagnosis and treatment of his
ailments. Before any determination regarding medical repatriation could be properly considered,
Petitioner would be required to cooperate in his medical treatment. Furthermore, to overlook
that requirement in these circumstances would encourage other Guantanamo detainees to refuse

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needed medical care or hunger-strike or otherwise attempt self-harm, and thus could significantly
affect the ability of the military to operate the detention facility at Guantanamo appropriately.
III.

Determinations about the Medical Repatriation of a Detainee Prior to
the Cessation of Active Hostilities Are Not within the Province of the Judiciary.
Insofar as Petitioner additionally asserts that the Executive’s detention authority under

the AUMF is informed by principles of the law of war and, thus, the humanitarian principles
underlying Article 110 of the Third Geneva Convention support his claim for release, see Mot. at
14-15, the Court should reject Petitioner’s claim. Article 110 of the Third Geneva Convention
reflects important humanitarian principles of international law, and the Executive Branch
respects those principles and takes them into account when determining whether it should
continue to detain individuals in the circumstances of this non-international armed conflict.
Assessments about the circumstances warranting the repatriation of detainees for medical
reasons, however, are not within the province of the Judiciary. Rather, as contemplated by the
Third Geneva Convention itself, it is for the Executive to determine how the principles
underlying Article 110 may apply to the medical situation of a particular detainee. Indeed, (1)
the Conventions’ framework, (2) historical practice, and (3) analogies from domestic detention
law in general all establish that the Court must defer to the Executive concerning medical
repatriations. Indeed, no United States court has ever ordered the release of an otherwise
lawfully detained person during an armed conflict on such grounds.
1.

The framework for medical repatriations established by the Conventions requires

implementation by the Executive involving matters that would be inappropriate for Judicial

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intervention. As explained above, generally, in an international armed conflict to which nearly18
all of the terms of the Third Geneva Convention apply, Articles 109 through 117 of the
Convention address the direct repatriation and accommodation in neutral countries of certain
seriously sick and seriously wounded prisoners of war. The Convention obligates each State
Party to an international armed conflict to repatriate those seriously sick or seriously wounded
prisoners of war whose medical conditions have been determined to meet the relevant standards.
See GC III, Art. 109, 110; cf. Annex I. Articles 109 through 114 provide the framework to make
those repatriation decisions. In particular, Article 110 expressly contemplates that parties to the
conflict have flexibility to interpret the standards for repatriation set by that Article by
concluding special agreements “to determine the cases of disablement or sickness that would
entail direct repatriation or accommodation in a neutral country.” GC III, Art. 110. In the
absence of such an agreement, such determinations are to be made “in accordance with the
principles laid down in the Model Agreement,” which is Annex I to the Third Geneva
Convention. Id. The Convention then requires medical professionals to decide whether sick or
wounded prisoners of war suffer from the type of condition or ailment determined by the parties
to the conflict (or by reference to the Model Agreement) to meet the standards for repatriation set
forth in Article 110.
Thus, even in international armed conflicts, interpretation and application of those
standards involve matters in which the Executive is uniquely competent and for which the

18

For example, Article 3 generally applies to conflicts in which the remaining articles do not.

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Executive should be accorded great deference.19 Cf. Ludecke v.Watkins, 335 U.S. 160, 173
(1948) (noting that, as “the Commander-in-Chief [and] the guiding organ in the conduct of our
foreign affairs,” the President has been “entrusted by Congress, almost throughout the whole life
of the nation, with the disposition of alien enemies during a state of war”). Accordingly, how the
Article 110 standard may operate in a given conflict and, especially, how it may apply to an
individual detainee is not an appropriate matter for judicial review.
This judicial deference is even more compelling here in the circumstances of this noninternational armed conflict. As the Executive made clear in its March 13, 2009, detention
authority brief, Resps.’ Mem. re Govt.’s Detention Auth. re Detainees Held at Guantanamo Bay
(ECF 117), in the current non-international armed conflict, principles of law-of-war rules
governing international armed conflicts are applied by analogy to inform the scope of the
Executive’s detention authority conferred by the AUMF. As in the case of international armed
conflicts, however, determinations as to standards for medical repatriation and determinations as
to how those standards are applied to individual detainees are not within the province of the
Judiciary. Indeed, as noted above, even in an international armed conflict where Article 110 is a
binding obligation upon State Parties to the conflict, the Convention contemplates that the parties
be accorded flexibility to determine the specific ailments and conditions that meet the Article
110 standard for repatriation in the context of that specific conflict. That determination is more
19

See Abbott v. Abbott, 560 U.S. 1, 15 (2010) (“It is well settled that the Executive’s
interpretation of a treaty is entitled to great weight.”) (citation omitted); Sumitomo Shoji
America, Inc. v. Avagliano, 457 U.S. 176, 184-185 (1982) (“[T]he meaning attributed to treaty
provisions by the Government agencies charged with their negotiation and enforcement is
entitled to great weight.”).

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akin to the type of “policy determination of a kind clearly for nonjudicial discretion . . . for
which the Judiciary has neither aptitude, facilities nor responsibility. . . .” El-Shifa Pharma.
Indus. Co. v. United States, 607 F.3d 836, 845 (D.C. Cir. 2010) (internal citations omitted).
Consequently it is even more imperative in this non-international armed conflict that the
Executive be accorded deference regarding the standards for medical repatriation, which were
established more than sixty years ago in the context of international armed conflict, and in
determinations as to whether a given individual would meet these standards as applied in this
unique context.
2.

Historical practice confirms that, in those armed conflicts to which most

provisions of the Geneva Conventions do not apply fully as a matter of treaty law, the
repatriation of seriously wounded or sick detainees involves sensitive state-to-state issues. Cf.
Ludecke, 335 U.S. at 173. For example, during the Korean War, a conflict to which the Geneva
Conventions did not apply as a matter of law,20 the exchange among the belligerents of sick and
wounded prisoners of war—Operation Little Switch—occurred as a result of extensive initiatives
and Executive negotiations. See Fact Sheet, Operations Big and Little Switch, available at
www.nj.gov/military/korea/factsheets/opswitch.html (last visited August 14, 2015).
As this historical practice demonstrates, in the context of detainee transfers, “the political
branches are well situated to consider sensitive foreign policy issues,” and “[t]he Judiciary is not

20

Shortly after the outbreak of hostilities, both sides to the conflict announced that they would
abide by the principles of the Geneva Conventions. See CRS Report, Prisoners of War:
Repatriation or Internment in Wartime (1971), at 17.

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suited to second-guess . . . determinations” related to transfer.21 Munaf v. Green, 553 U.S. 674,
702 (2008); accord Kiyemba v. Obama, 561 F.3d 509, 520 (D.C. Cir. 2009) (Kavanaugh, J.,
concurring) (“[I]t comes as no surprise that war-related transfers [of wartime alien detainees]
traditionally have occurred without judicial oversight.”).
3.

Finally, in other detention contexts, the Judiciary uniformly defers to the

Executive on decisions of humanitarian release. For example, in the immigration context,
through a means now codified by statute, the Department of Homeland Security may grant
parole to an alien applying for admission to the United States “on a case-by-case basis for urgent
humanitarian reasons.” 8 U.S.C. § 1182(d)(5)(A);22 Rodriguez v. Robbins, 715 F.3d 1127, 1144

21

Further, because the relief requested involves the transfer of a Guantanamo detainee to a
foreign country, the politically sensitive nature of that issue further supports a conclusion that the
type of assessments related to how repatriation and resettlement of detainees proceeds prior to
the cessation of hostilities that are raised in Petitioner’s request for relief are not appropriate for
the Court. Since 2011, Congress has included provisions in its annual National Defense
Authorization Acts (“NDAA”) addressing the use of appropriated funds for the transfer of any
Guantanamo detainee and requiring various security-related certifications or determinations. See
Pub. L. No. 111-383, 124 Stat. 4137; 112 Pub. L. No. 81, 125 Stat. 1298; Pub. L. No. 112-239;
Pub. L. No. 113-66. The President has issued signing statements objecting to or expressing
reservations about these requirements. See Statement by the President on H.R. 6523, available
at: http://www.whitehouse.gov/the-press-office/2011/01/07/statement-president-hr-6523;
Statement by the President on H.R. 1540, available at: http://www.whitehouse.gov/the-pressoffice/2011/12/31/statement-president-hr-1540; Statement of the President on H.R. 4310,
available at: http://www.whitehouse.gov/the-press-office/2013/01/03/statement-president-hr4310 (Jan. 3, 2013); Statement of the President on H.R. 3304, available at
http://www.whitehouse.gov/the-press-office/2013/12/26/statement-president-hr-3304 (Dec. 26,
2013).
22

“To ameliorate a harsh or unjust outcome, the [Immigration and Naturalization Service] may
decline to institute proceedings, terminate proceedings, or decline to execute a final order of
deportation. This commendable exercise in administrative discretion, developed without express
statutory authorization, … is now designated as deferred action. … Approval of deferred action
status means that, for [] humanitarian reasons [], no action will thereafter be taken to proceed
against an apparently deportable alien[.]” Reno v. American-Arab Anti-Discrimination Comm.,

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(9th Cir. 2013) (“The parole process is purely discretionary and its results are unreviewable by
[the Immigration Judge]. … [R]elease decisions are based on humanitarian considerations and
the public interest[.]”); Botezatu v. INS, 195 F.3d 311, 314 (7th Cir. 1999) (holding that the
district court lacked jurisdiction to consider a challenge to the Executive’s decision not to grant
humanitarian parole); cf. Jay v. Boyd, 351 U.S. 345, 354 (1956) (“The statute [then 8 U.S.C. §
1254(a)(5), concerning the discretionary suspension of deportation] says that, as to qualified
deportable aliens, the Attorney General ‘may, in his discretion’ suspend deportation … [which]
is in all cases a matter of grace.”) (internal citations omitted).
Similarly, in the domestic criminal context, the Judiciary defers to the Executive on
humanitarian determinations for decisions of clemency and parole. See Cavazos v. Smith, 132 S.
Ct. 2, *7 (2011) (“[C]lemency [is] a prerogative granted to executive authorities to help ensure
that justice is tempered by mercy. …. It is not for the Judicial Branch to determine the standards
for this discretion. If the clemency power is exercised in either too generous or too stingy a way,
that calls for political correctives, not judicial intervention.”).23 In both of these contexts, the

525 U.S. 471, 484 (1999) (quoting 6 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law
and Procedure § 72.03 [2][h] (1998)).
23

In extradition proceedings, which admittedly involve a determination of conditions in the
receiving country, the Judiciary also defers to the assessments of the Executive with regard to
humanitarian considerations. See Martin v. Warden, 993 F.2d 824, 830 n.10 (11th Cir. 1993)
(“[J]udicial intervention in extradition proceedings based on humanitarian considerations is
inappropriate. Rather, humanitarian considerations are matters properly reviewed by the
Department of State.”) (citation omitted); accord Ahmad v. Wigen, 910 F.2d 1063, 1067 (2d Cir.
1990) (“The interests of international comity are ill-served by requiring a foreign nation . . . to
satisfy a United States district judge concerning the fairness of its laws and the manner in which
they are enforced. . . . It is the function of the Secretary of State to determine whether extradition
should be denied on humanitarian grounds.”).

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individual seeking release on humanitarian grounds invoked statutory or constitutional claims
more firmly established than Petitioner’s claim to provisions of the Geneva Conventions, and yet
the courts deferred to the decisions of the Executive.
In summary, the provisions of the Geneva Conventions at issue here reflect international
humanitarian principles that the United States strongly supports. See, e.g., U.N. General
Assembly Res. 2676 (XXV) (Dec. 9, 1970) (urging, in a Resolution co-sponsored by the United
States, compliance with article 109 of the Third Geneva Convention, “which requires the
repatriation of seriously wounded and seriously sick prisoners of war”). The application of these
underlying humanitarian principles in this unique, non-international armed conflict, on the other
hand, is properly committed to the Executive. Here, the Executive considers carefully the
medical conditions and health of individual detainees on a case-by-case basis as they arise. In
any event, the manner by which the Executive interprets its international obligations is due
judicial deference.24 Cf. Pub. L. 109-366 § 6(a)(3)(A), 120 Stat. 2632 (2006), 18 U.S.C. § 2441
note (“[T]he President has the authority for the United States to interpret the meaning and
application of the Geneva Conventions and to promulgate higher standards and administrative
regulations for violations of treaty obligations which are not grave breaches of the Geneva
Conventions.”).
24

To the extent that an analogy to traditional armed conflicts is inapt here, the Court should
accord substantial deference to the political branches in construing how the laws of war apply to
this asymmetrical and nontraditional conflict. See Resps.’ Mem. re Detention Authority (ECF
No. 117) at 6 n.2 (noting that “courts should defer to the President’s judgment that the AUMF,
construed in light of the law-of-war principles that inform its interpretation, entitle him to treat
members of irregular forces as state military forces are treated for purposes of detention”)
(citations omitted); see also AUMF § 2(a) (authorizing the President to use “all necessary and
appropriate force” against those that “he determines” planned, authorized, committed, or aided
the September 11 terrorist attacks or harbored those organizations).

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Petitioner in essence asks the Court to substitute its judgment for the judgment of the
Executive about the criteria used to assess medical repatriation and about which particular
detainees satisfy the criteria for medical repatriation on humanitarian grounds. These types of
decisions, however, traditionally have been, and should remain, the province of the non-Judicial
branches of the government. For these reasons, the Court should deny Petitioner’s motion.
CONCLUSION
For all of the reasons set forth above, the Court should deny Petitioner’s Motion to
Reinstate His Habeas Petition and for Judgement on the Record.

Date: August 14, 2015

Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
TERRY M. HENRY
Assistant Director
U.S. Department of Justice
Civil Division, Federal Programs Branch
/s/ Joseph C. Folio III
RONALD J. WILTSIE (DC Bar 431562)
ROBERT PRINCE
JOSEPH C. FOLIO III
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W.
Washington, DC 20530
Tel: (202) 305-4968
Fax: (202) 616-8470
Email: joseph.folio@usdoj.gov
Counsel for Respondents

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CERTIFICATE OF SERVICE
I certify that on August 14, 2015, I served the foregoing Opposition to Petitioner’s
Motion to Reinstate His Habeas Petition and for Judgement on the Record by email to the
following counsel of record:
Omar Farah
ofarah@ccrjustice.org
Baher Azmy
BAzmy@ccrjustice.org
Center for Constitutional Rights
666 Broadway, 7th Floor
New York, NY 10012

DATED: August 14, 2015
/s/ Joseph C. Folio III
JOSEPH C. FOLIO III
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W.
Washington, DC 20530
Tel: (202) 305-4968
Fax: (202) 616-8470
Email: joseph.folio@usdoj.gov

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IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
_______________________________________
)
TARIQ ALI ABDULLAH BA ODAH,
)
)
Petitioner,
)
)
v.
)
)
BARACK H. OBAMA, et al.,
)
)
Respondents.
)
_______________________________________)

Civil Action No. 06-1668 (TFH)

RESPONDENTS’ OPPOSITION TO PETITIONER’S
MOTION TO REINSTATE HIS HABEAS PETITION AND
FOR JUDGEMENT ON THE RECORD

EXHIBIT 1

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WW

or COMMANDE-
Pursuant to 28 U.S.C. 1746, l, CUR?hereby declare:

1. Mid-9+1 am a Commander in the United States (U .8.) Navy and have served on both
active duty and as a rcservist since 1996. I currently serve as the Senior Medical Of?cer, Joint
Medical Group (J MG), Joint Task oree (J Guantanamo Bay, Cuba. 1 am
responsible for the medical care provided to 101 detainees at Guantanamo Bay and supervise the
operation of the Joint Medical Group that provides medicai care to those detainees.I I have
served in this position since May 1, 2015.

in May 2015, deployed to -GTMO as the Senior Medical Of?cer
(SMO) for the JMG.

 

3. 659-! have personal knowledge of the procedures in place for the operation and application of
medical care at JTF-GTMO medical facilities, and am responsible for ensuring that they are
followed. I have personal knowledge of, or have received information in the course of my
responsibilities and of?cial duties. concerning the matters raised by Mr. 'l?ariq Ali Abdullah Ba
Odah (ISN 178) through his counsel in the Petitioner?s Motion to Reinstate His Habeas Petition
and For Judgment on the Record ?led on June 25, 2015. This declaration is based on
information made available to me through my of?cial duties, from other MG medical staff
involved in the medical care and treatment of Mr. Ba Odah, and a review of Mr. Ba Odah?s
medical records. I have attempted to meet with Mr. Ba Odah numerous times since my arrival
but he has refused all such attempts.

 

1 I do not provide or oversee medical care for the 15 detainees designated as ?high-value detainees,? or HVDs.
HVl)s have their own Senior Medical Officer. 178 is not an HVD.



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4. WT he MG staff includes licensed, board-certi?ed physicians of different
specialties. Speci?cally, as of July 2015, the medical staff ?professionally
trained individuals, including 2 family physicians, a physician's assistant, an internist/oncologist,
a a a dentist, licensed medical/surgical nurses, corpsmen (formally
trained Navy medical personnel akin to a ?medic? in the Army), various technicians (lab,
radiology, pharmacy, operating room, respiratory therapy, physical therapy and biomedical
repair), and administrative staff. The Naval Hospital Guantanamo provides additional
consultative services from numerous medical professionals including an anesthesiologist, a
general surgeon, an orthopedic surgeon, a licensed dietician, and a physical therapist. We
routinely bring in specialists, including medical professionals practicing in the areas of
Dermatology, Cardiology, Otorhinolaryngology (Ear, Nose and Throat), Gastroenterology,
Urology and Audiology, and have the ability to request specialists from other areas as needed.

5. military health care personnel, Whose duties involve support of detainee operations or
contact with detainees, receive advanced training commensurate with their duties prior to seeing
detainees. The purpose of this training is to equip military health care personnel to provide
quality care in a detention setting by ensuring that they have a working knowledge and
understanding of the requirements and standards for providing health care for detainees. Upon
arrival at Guantanamo, non-specialists have mandatory orientation that includes classroom time
as well as a two-week formal transition between incoming and outgoing personnel. Specialists
making their first visit to Guantanamo have another medical staff member with them at all times
to help acclimate and to assist in the provision of care. To maintain continuity, we make every
effort to have the same specialists visit the detainees. Further, Guantanamo has linguists who
have been assigned to the facility for over ?ve years who provide great stability during medical
staff turnover.

6. fldj-According to Department of Defense Instruction 2310.08E, ?Medical Program Support
for Detainee Operations,? health care personnel responsible for the medical care of detainees
have a duty to protect detainees? physical and mental health and to provide appropriate
treatment. Decisions regarding the appropriate medical treatment of detainees are the province
of medical personnel. See Directive 3115.09, sec. 3.4.3. The professional provider-patient
treatment relationship between health care personnel and detainees is exclusively for the purpose
of evaluating, protecting, and improving detainees? physical and mental health. Health care
personnel do not participate in detention-related activities or operations for any reason other than
to provide health care services in approved clinical settings, conduct disease prevention and other
approved public health activities, advise proper command authorities regarding the health status
of detainees, and provide direct support for these activities.

7. JMG is committed to providing appropriate and comprehensive medical care to all
detainees. MG providers take seriously their duty to protect the physical and mental health of
the detainees and approach their interactions with detainees in a manner that encourages
provider-patient trust and rapport and that is aimed at encouraging detainee participation in



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medical treatment and prevention. Detainees receive timely, compassionate, quality healthcare
and have regular access to primary care and specialist physicians. The healthcare provided to the
detainees being held at TF-GTMO is comparable to that afforded our active duty service
members. All medical procedures performed are justified and meet accepted standards of care.
A detainee is provided medical care and treatment based solely on his need for such care.
Medical care is not provided or withheld based on a detainee?s compliance or noncompliance
with detention camp rules or based on his refusal to accept food or drink.

may make a request to guard personnel in the cell blocks or to the medical
personnel who make daily rounds on each cell block at any time in order to initiate medical care.
In addition to responding to such detainee requests, the medical staff will investigate any medical
issues observed by TF -GTMO guards or staff. In general, health care is provided with the
consent of the detainee. See DOD Instruction 2310.08E ?Medical Program Support for Detainee
Operations? at The availability of
care through ongoing monitoring and response to detainee-initiated requests has resulted in
thousands of outpatient contacts between detainees and the medical staff, followed by inpatient
care as needed.

 

9. ?A_Behavioral Health Services (Bl IS) staff supports the outpatient mental
health needs of the detainees, and runs the -Behavioral Health Unit (Bl IU) designed for
detainees requiring inpatient care and monitoring. The BHU staff includes a board-
certi?ed and a as well as nurses and technicians. The Bl lU
staff conducts mental health assessments, provides crisis intervention, develops individualized
treatment plans, formulates therapy for management of self-injurious ideations or behavior, and
provides supporting care and medication therapy. as needed, to treat for
major disorders. The medical and BHU staff provide appropriate physical and
mental health care for all detainees through a coordinated team approach based on individualized
plans that account for each detainee?s medical condition and circumstances. Mr. Ba Odah is
followed by the BHU due to his long term fasting, however he consistently refuses to meet with
Bl-lU staff.

10. is the policy of the Department of Defense to support the preservation of life by
appropriate clinical means and standard medical intervention, in a humane manner. and in
accordance with all applicable medical standards. Accordingly, there are procedures and/or
protocols for providing medical care to detainees, which are to be followed at all times by all
medical personnel at the Joint Medical Group and throughout JTF-GTMO. These procedures
include monitoring all detainees for weight loss and medically intervening when necessary to
prevent serious bodily injury or death from non-religious fasting. The JTF-GTMO guard force
monitors detainee consumption of meals and maintains records of when detainees do not eat the
provided meals. These records are shared with MG staff who then reviews the clinical medical
information for any detainee who has been noted as having missed meals. Intervention includes



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counseling, increased weighing, monitoring of laboratory test results (when permitted to perform
the tests by the detainee) and, if necessary, approval for enteral feeding.

ll. ?fThe JMG Senior Medical Officer (SMO) undertakes a weekly review of detainees who
are of interest based on weight loss that includes looking at weight trends, overall nutritional
intake, and the detainee?s medical conditions. The SMO remains in continual communication
with other I MG staff regarding observable detainee weight changes. The ability to monitor a
detainee?s health, however, is affected by the detainee?s willingness to cooperate with medical
staff.

12.167'Joint Medical Group personnel provide extensive counseling and detailed warnings to the
detainees concerning the risks of their failure to eat or drink. Medical personnel (including
behavioral health professionals) continually remind detainees, who persist in their refusal to
consume meals and water, that this behavior could endanger their health or life. During these
conversations, the medical personnel explain that their role is to preserve and promote the
detainee?s life and health, and urge the detainees to voluntarily accept enough nutrients to
increase their weight and improve their health. In the past, when Mr. Ba Odah accepted
appointments with, and visits from, the former SMO, one of the topics they routinely discussed
was the need for Mr. Ba Odah to increase his weight. The former SMO encouraged Mr. Ba
Odah to continue to try to eat small amounts of food and discussed necessary adjustments to Mr.
Ba Odah?s enteral feeds or supplements to help him maintain a healthier weight. In addition, the
corpsmen routinely counsel Mr. Ba Odah on the need to accept nutrition either by eating food or
drinking supplement.

a decision has been made to approve a detainee for enteral feeding, MG staff
continues to perform an ongoing assessment of the detainee?s medical condition (including
laboratory tests if permitted by the detainee) and his need to be enterally fed. Our goal is always
to restore a detainee to a normal, healthy weight and foster eating habits that include regular
meals. We look at detainee weight trends and other clinical factors, such as meal or calorie
intake and medical comorbidities, every day to determine whether detainees should remain
approved for enteral feeding. We continually assess what would happen if a detainee stopped his
intake of food and ?uids, and how his clinical history and other factors bear upon the. consequent
health risks. Notably, our concern is with ensuring that a fasting detainee consumes proper
nutrition, not with enteral feeding per se. 80 even a?er a detainee is approved for enteral
feeding, he is offered the opportunity to eat a standard meal or consume the liquid supplement
orally in advance of every enteral feeding and if he does so, he will not be enterally fed.

14. Ba Odah is presently in poor health, primarily due to his non-religious fast
and subsequent weight loss. Mr. Ba Odah has been a non-religious faster requiring regular
enteral feedings since February 2007. His records reflect that his weight has steadily declined
over the years as a result of his non-religious fasting and his efforts to subvert attempts by the



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.quuru1\ 1? lb U114 U013 1

JMG staff to maintain him at a healthy weightz. As of July 15, 2015, Mr. Ba Odah weighed 74
lbs. (56% of ideal body weight).

15. Whit Ba Odah?s weight is taken on a weekly basis and closely monitored by JMG
staff and myself. Mr. Ba Odah is usually compliant with his weigh-ins; he walks to the weigh
scale unassisted and seems to be monitoring his weight in an effort to maintain the weight that he
wants. At times Mr. Ba Odah has requested to be weighed even if not scheduled for a weighing.
He has also requested that his weight be taken more frequently than once a week. On December
4, 2014 the former SMO discussed with Mr. Ba Odah that it would not be helpful for him to be
weighed more frequently than once a week as he would then ?xate on normal day to day weight
?uctuations; the former SMO noted that Mr. Ba Odah understood this reasoning.

Ba Odah continues to regularly refuse medical and mental health
examinations and treatment, including laboratory tests to assess his metabolic status and all BHU
staff visits to assess his mental health. Mr. Ba Odah has recently made comments indicating he
has a sense of despair regarding his situation and as a result, I have asked the to
engage with him personally; however,  Ba Odah continues to refuse all engagement from the
BHU. Mr. Ba Odah most recently refused to speak with the BHU on June 8 and
July 8, 2015; he refused to speak with a BHU technician at his cell door on June 9, 2015. Mr. Ba
Odah refused to see the former SMO on May 7, 2015 and April 23, 2015 prior to the former
departure from GTMO. Since I arrived, consistent with his prior behavior, Mr. Ba Odah
has refused to see me numerous times. He refused a follow up dental appointment on June 3,
2015 and May 5, 2015 to complete a cleaning and add a ?lling (his previous dental appointment
was cut short due to an encroaching legal appointment). Mr. Ba Odah most recently refused a
blood draw three times on July 3, 20l5 when asked for the blood to conduct labs for a Complete
Blood Count, Comprehensive Metabolic Panel, and prealbumin (a marker for nutritional
evaluation). He also refused a blood draw to conduct labs in order to test for chicken pox,
shingles, and HIV on June 9, 2015. He refused a blood draw to conduct labs for a Complete
Blood Count, Comprehensive Metabolic Panel, Hepatitis panel, and Lipid Panel (to assess
cardiac risk) on August 8, 2014. He refused a blood draw to conduct labs for a Basic Metabolic
Panel, Lipid Panel, prealbumin and the levels of certain vitamins, calcium, magnesium, etc. on
May 16, 2014. He refused his most recent optometry appointments on July 6, 2015, February
18, 2014, and October 8, 2013. A nutrition consult was requested for Mr. Ba Odah on July 1,
2015 and is scheduled to occur on July 30, 2015. Mr. Ba Odah often refuses to have his vital

 

2 Upon arrival at Guantanamo in February 2002 Mr. Ba Odah weighed 121 lbs. In December 2007, Mr. Ba Odah
weighed 133.5 lbs.; in 2008 his weight ranged from 116 to 134 lbs.; in 2009 his weight ranged from 109 lbs. to 133
lbs; in 2010 his weight ranged from 103 to 118 lbs; in 2011 his weight ranged from 104 to 110 lbs., in 2012 his
weight ranged from 90 to 105 lbs., in 2013 his weight ranged from 90 to 122 lbs., in 2014 his weight ranged from
74.5 to 10 lbs. Over the past year Mr. Ba Odah continued to lose weight: on June 25, 2014 Mr. Ba Odah weighed
92 lbs., on September 17, 2014 be weighed 80.5 lbs., on March 11 he weighed 76.5 lbs., on May 13 he weighed 76
lbs. and on June 17. 2015 he weighed 77.5 lbs.



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signs taken, but they were most recently taken on April 2, 2015, and reflect that his blood
pressure, heart rate and temperature are all within normal limits. Mr. Ba Odah continues to be
offered medical appointments and BHU staff continues to regularly visit his cell.
17. (U//FOUO) JMG staff continues to make every attempt to consult, observe, and visit Mr. Ba
Odah. In the past when Mr. Ba Odah refused appointments with the former SMO, the former
SMO would occasionally visit Mr. Ba Odah during his enteral feeding sessions. On September
19, 2014 the former SMO visited Mr. Ba Odah during an enteral feed session because he refused
the previous day’s appointment. The former SMO noted that they briefly spoke and Mr. Ba
Odah denied weakness and any other complaints. The former SMO also visited Mr. Ba Odah
during an enteral feed session on November 7, 2014 at which time Mr. Ba Odah expressed
frustration that the former SMO had not consulted him prior to adjusting his enteral feeds. The
former SMO reminded Mr. Ba Odah that he had refused numerous appointments during which
they could have discussed Mr. Ba Odah’s medical concerns and any changes needed to improve
his nutritional status. After Mr. Ba Odah refused a December 2014 appointment, the former
SMO made note that, should Mr. Ba Odah refuse his next appointment, the former SMO planned
to visit with him during his enteral feeding. The visit was not necessary because Mr. Ba Odah
did meet with the former SMO at their next appointment on December 24, 2014.
18. (U//FOUO) Mr. Ba Odah refused scheduled appointments with me on May 21, June 4, and
July 24, 2015, so I made several attempts to visit him at his cell door. Mr. Ba Odah vehemently
refused to engage with me on all of these occasions. On June 18, 2015 Mr. Ba Odah yelled,
cursed, and spit at the linguist who accompanied me on my attempted visit. He then yelled and
cursed at me stating clearly that he did not want to speak about any medical concerns. I visited
him at his cell again on June 19, June 20, June 21, July 20, and July 24, 2015 and each time Mr.
Ba Odah refused to speak with me, often cursing at me. My most recent attempt to visit Mr. Ba
Odah at his cell door was on July 29, 2015 and he called me a son of a bitch and told me to go
away. I will continue to schedule appointments with Mr. Ba Odah and attempt to engage with
him at his cell door in order to discuss any medical concerns he may have and to observe his
health. Even though Mr. Ba Odah will not interact with me I continue to closely monitor his
health. I requested JDG staff to put Mr. Ba Odah on line of sight for a four day period so that I
could monitor his daily activities and find out what he is doing with the food provided to him as I
had a suspicion that he was not consuming it as he has represented. JMG and JDG staff
witnessed Mr. Ba Odah conducting daily living activities such as walking around his cell, talking
with his neighbors, praying, singing and sleeping regularly. They also observed him engaging in
deceptive activities such as flushing food he had accepted down the toilet, hiding food and
inducing vomiting. Mr. Ba Odah will occasionally partake in recreational time, although not
regularly; he most recently went to recreation on June 14 and June 4, 2015. Mr. Ba Odah has a
normal energy level, his interactions with staff are often physically vigorous and violent, and he
is not bed ridden nor obtunded.

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19. enteral feedings JMG staff attempt to obtain the detainee?s vital signs,
and ask if the detainee is in any pain, feels nauseous, or has experienced vomiting. Mr. Ba
Odah?s records re?ect that for the past year he has consistently denied pain, nausea and vomiting
during his enteral feeds, and has not complained of other ailments during his enteral feeding
sessions. During his daily feeding sessions Mr. Ba Odah also consistently re?ises to have his
vital signs checked. Mr. Ba Odah refuses to go voluntarily to his enteral feedings, therefore the
guard staff must forced-cell extract him to and ?'om these appointments. Recently, Mr. Ba Odah
has been witnessed occasionally purging a?er his enteral feeds, at times. in his cell and other
times in front of JMG staff, in an effort to limit his caloric intake.

staff continue to discuss with Mr. Ba Odah the possibility of adjusting and
increasing his enteral feeds, and continue to encourage Mr. Ba Odah to increase his daily calorie
intake by consuming some food and drinking cans of Two Cal and/0r Ensure in order to gain
weight. Mr. Ba Odah is provided cans of Two Cal and/or Ensure as well as honey and olive oil
in his cell at his request. While Mr. Ba Odah refuses to interact with JMG, his weight is still
consistently monitored and his enteral feeds are adjusted as necessary based on the 
observations of his condition in an attempt to have him gain weight. Previously Mr. Ba Odah
was permitted to clear (meaning he is waived from) one enteral feed session per day if he
consumed an appropriate amount of food, however, in September 2014, after observing a
signi?cant loss of weight in Mr. Ba Odah over a one month period of time from August 13, 2014
to September 10, 2014 when he was clearing the majority of his morning enteral feeds through
consuming his meals, the former SMO became concerned that Mr. Ba Odah was not actually
consuming the reported meals. Accordingly, the former SMO ordered that Mr. Ba Odah no
longer be allowed to clear enteral feeds by food calorie counts. The former SMO observed Mr.
Ba Odah?s weight beginning to improve upon the resumption of enteral feedings and he was
transitioned to the Two Cal HN supplement with an increased calorie count, at which time the
former SMO ailowed Mr. Ba Odah to clear one enteral feed by consuming three cans of Ensure
or two and a half cans of Two Calorie HN, which continues to bepermitted today.

21. Mr. Ba Odah is currently scheduled to be enterally fed two cans of Two Calorie
MN and one can of Ensure, twice a day, for a total of 2600 cal/day. Water is also added to the
nutritionai feed and, per Mr. Ba ()dah?s request, the amount of water added to the supplement
was increased on March 30, 2015 to keep him hydrated as he is refusing to accept water from the
guard staff. Mr. Ba Odah is permitted to clear an enteral feeding if he drinks either 3 cans of
Ensure Plus or 2 and a half cans of Two Calorie HN. The MG staff continues to encourage Mr.
Ba Odah to consume food and he is offered meals three times daily, often accepting them.
However, JTF-GTMO staff is unable to verify whether Mr. Ba Odah consumes the food because
he often refuses to return the clamshell in which the food is served, thereby preventing the staff
from recording what was eaten to enable monitoring by the JMG. Mr. Ba Odah has been
observed pouring Ensure back and forth between cups without drinking it; accepting a full cup of
Ensure, placing it on the ground in his cell, and then drinking from an almost empty cup and

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presenting that as the original cup; as well as pretending to drink from an empty cup and pouring
supplement into the toilet. Recently Mr. Ba Odah has been observed COVertly ?ushing food,
olive oil and honey down the toilet as well as hiding food. Mr. Ba Odah also consistently
requests that the volume of his feed be reduced, despite the medical judgement that the current
volume is required.

this time, I consider Mr. Ba Odah to be clinically stable though his weight is
certainly at a very low and dangerous point. Mr. Ba Odah has had long?term daily access to
medical and mental health care and often has voluntarily chosen not to seek or actively engage in
treatment from the MG. JMG staff members, including myself, routinely stop by his cell to
discuss any medical concerns or complaints that he might have, but Mr. Ba Odah has
demonstrated an ongoing unwillingness to attend medical appointments with the SMO, to allow
outpatient care with specialists, or meet with Behavioral Health Unit staff to discuss his mental
status and behavior, including his decision to maintain his non-religious fast despite the risk to
his health. For instance, on April 7, 2015 a corpsman was called to respond to Mr. Ba Odah?s
complaint of pain; when the corpsman arrived to assess Mr. Ba Odah?s complaint Mr. Ba Odah
pushed the corpsman and told the corpsman to ?go away you idiot.? During a separate instance,
on August 12, 2014 Mr. Ba Odah was returning from the Detention Medical Clinic and stated he
felt fatigued, and then slid down to the floor. JDG staff carried Mr. Ba Odah, on a backboard, to
the medical space and MG staff took his vitals. Mr. Ba Odah complained of back pain but
refused all medical care and food when offered.

23. Wt. Ba Odah is aware that he may express concerns for his health and receive
proper treatment for his conditions; and in fact, on occasion Mr. Ba Odah does engage with the
JMG staff regarding health issues. In November 2014, Mr. Ba Odah requested an appointment
with the former SMO, after refusing numerous prior appointments, to discuss a painful lump in
his right gluteal cleft which the nurse examined for him the previous day. The former SMO
examined the lump and discussed with Mr. Ba Odah the incision and drainage procedure to
remove the cyst. Mr. Ba Odah consented to the treatment and the was successfully removed
and the wound healed. In December 2014, Mr. Ba Odah complained of pain in his lower back
and requested to see the former an appointment was scheduled but Mr. Ba Odah
subsequently refused this appointment. The former SMO visited Mr. Ba Odah a week later
during one of his enteral feeding sessions. Mr. Ba Odah did not express any complaints of pain
but did use this time to express his frustrations with the guard force, speci?cally that the juice
served with his meals was warm and that he was not permitted to keep dental care items in his
cell. From November 2014 through January 2015, Mr. Ba Odah was engaging more frequently
with the SMO but starting in February 2015, Mr. Ba Odah again began consistently refusing
appointments. Mr. Ba Odah most recently met with the former SMO on April 2, 2015, an
appointment made at Mr. Ba Odah?s request through a letter he wrote to the former SMO which
the guard staff delivered on March 30, 2015. In his letter and during his discussion with the
former SMO, Mr. Ba Odah expressed frustrations with the guard staff, made requests for

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adjustments to his entera] feeds and mentioned aching in his knees and elbows. The former
SMO acted on Mr. Ba Odah?s enteral feed adjustment requests but was unable to discuss his
aches and pains as Mr. Ba Odah spent the majority of the time talking about complaints about the
guard staff before prayer time brought the meeting to an end. The former SMO was unable to
follow up on the issue as Mr. Ba Odah refused subsequent appointments, most recently on April
23 and May 7, 2015. While in his motion he now complains of multiple 
exhaustion, decreased vision, swollen feet, stiff joints, migraine-like headaches, nervousness,
agitation, muscle and nerve shivering, needle?like pain in his heart, a racing heartbeat, loss of
sensation in his hands and feet, dizziness, back pain, and decreased ability to mentally focus?he
has brought few of these to the attention of Joint Medical Group personnel, and he has
not permitted MG staff to treat any of them.

24. WW. Ba Odah has not expressed fear or concerns for his safety over the past year.
To the contrary, Mr. Ba Odah regularly acts out when he disagrees with the actions of the MG
or JDG staff. For instance, on February 3, 2015, Mr. Ba Odah was displeased with what he
perceived as a delay in the delivery of his honey so he covered his cell window and stated he
would stop drinking and would require that MG enterally feed him every time. During this
incident Mr. Ba Odah denied any safety concerns. Mr. Ba Odah expressed his displeasure to the
former SMO via letter and requested an increase in his supply of oil, honey and Ensure so that he
could reduce interaction with the guard force. Mr. Ba Odah also decided to stop taking water
from the guards as a method of protest against what he perceives as the guards? poor treatment of
him.

Ba Odah does engage with MG staff who administer over-the?counter
medications to him. He is fairly routinely provided Mylanta, Metamucil, and Milk of Magnesia
to address his stomach pain for example, as well as Sudafed for nasal congestion, Cepacol
lozenges for a sore throat, and Tylenol and Motrin for minor aches and pains. In addition to
medicinal treatments, Mr. Ba Odah has also been issued extra thermal shirts, pants and blankets
to keep in his cell due to his chronic low weight. Mr. Ba Odah has also been issued a
hemorrhoid pillow to increase his comfort while sitting and a blue mattress to provide extra
cushion and support and alleviate the of a pressure ulcer he suffered from in
November 2014. The mattress allows him better positioning to avoid another pressure ulcer, a
potentiality increased by his malnourished state. Mr. Ba Odah has re?ised basic treatments and
preventative measures such as the in?uenza vaccination, TDap, and isoniazid (INH) to treat his
latent tuberculosis.

26. WI do not take the seriousness of Mr. Ba Odah?s weight loss However,
the fact that he has maintained a consistent weight range since September 2014 and is
?mctioning normally in his daily life leads me to believe that the current manner of managing his
non-religious fast remains appropriate. I continue to closely monitor his weight and his overall
health as did the previous SMOs and all MG staff. Mr. Ba Odah?s current condition is the
consequence purely of his own effort but that has not and will not dissuade the efforts of the

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JMG to continue to care for and treat him. In the event of a signi?cant change in his weight for
the worse, I am prepared to admit him into the Detainee Acute Care Unit (DACU) where he
would be placed on a continuous enteral feed and restricted to a bed with a scale under him. This
would allow us to provide him a slower enteral feed which would limit his ability to purge
significant amounts of the nutritional supplement. Any observed deterioration will be carefully
considered in assessing whether involuntary laboratory testing is needed, for example, alterations
in his level of consciousness, syncope, or profound weakness.

27. summary,  Ba Odah?s weight remains an active concern for the JMG. Mr.
Ba Odah continues to refuse ongoing medical appointments, refuses to allow medical tests to
verify his physical condition, and even refuses attempts to discuss his health at his cell door. he
MG will continue to observe Mr. Ba Odah and to monitor his weight, offer meais and
nutritional supplements and proceed with enteral feeds when necessary. Mr. Ba Odah has been
observed walking without dif?culty, speaking clearly and ?uently, and otherwise engaging in
activities of daily living such as grooming, cleaning, dressing himself, eating, going to the
bathroom, sleeping, praying, singing, reading and talking with his neighbors. Although Mr. Ba
Odah often refuses to interact with medical and mental health care providers or to attend
appointments, the JMG continues to closely monitor Mr. Ba Odah?s current physical and mental
health status, and will continue to recommend that he seek ?trther diagnostic evaluation and
treatment for any unresolved medicai conditions.

I declare under penalty of perjury under the laws of the United States of America that the
forgoing is true, accurate and correct.

Executed on 30 July 2015.

 

CDR, MC, USN
Senior Medical Of?cer


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FILED UNDER SEAL
PROTECTED INFORMATION
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
_______________________________________
)
)
)
Petitioner,
)
)
v.
)
)
BARACK H. OBAMA, et al.,
)
)
Respondents.
)
_______________________________________)
TARIQ ALI ABDULLAH BA ODAH,

Civil Action No. 06-1668 (TFH)

RESPONDENTS’ OPPOSITION TO PETITIONER’S
MOTION TO REINSTATE HIS HABEAS PETITION AND
FOR JUDGEMENT ON THE RECORD

EXHIBIT 2

FILED UNDER SEAL
PROTECTED INFORMATION
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-(-U9-Combatant Status Review Tribunal Decision Report Cover Sheet
{EB-This Document is UNCLASSIFIED Upon Removal of Enclosurei(2).

PANEL: #18
178

Ref: (a)-6U-)-Convening Order for Tribunal #18 of 1 Nov 2004 (U)
Implementation Directive of 29 July 2004 (U)
Memo of 7 July 2004 (U)

Encl: (Ufa-Unclassi?ed Summary of Basis for Tribunal Decision (UEOHO)
ORB-Copies of Documentary Evidence Presented (?955)
GHQ-Personal Representative?s Record Review (Um

I. his Tribunal was convened by references and to make a determination as
to whether the detainee meets the criteria to be designated as an enemy combatant as
de?ned in reference 

2. 5 Nov 2004 the Tribunal determined, by a preponderance of the evidence, that
Detainee #178 is properly designated as an enemy combatant as de?ned in reference (0).

particular, the Tribunal ?nds that this detainee is a member of, or af?liated
with, the Taliban and a1 Qaida and participated in military operations against the United
States or its coalition partners, as more fully discussed in the enclosures.

4. {Ha-Enclosure (1) provides an unclassi?ed account of the basis for the Tribunal?s
decision. A detailed account of the evidence considered by the Tribunal and its ?ndings
of fact are contained in enclosure (1).

 


DERV FM: Multiple Sources 6 0 0 0 
DECLASS: XI .

FOR PUBLIC RELEASE

 

Case 1:06-cv-01668-TFH Document 283-4 Filed 08/24/15 Page 1 of 1
UNCLASSIFIED//FOR PUBLIC RELEASE

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
_______________________________________
)
)
)
Petitioner,
)
)
v.
)
)
BARACK H. OBAMA, et al.,
)
)
Respondents.
)
_______________________________________)
TARIQ ALI ABDULLAH BA ODAH,

Civil Action No. 06-1668 (TFH)

ORDER
Upon consideration of Petitioner’s Motion To Reinstate His Habeas Petition And
For Judgment On The Record, and Respondents’ Opposition thereto, it is hereby
ORDERED that the Motion is DENIED.

Date:____________________

_____________________________
The Honorable Thomas F. Hogan
United States District Judge

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