Case Document 273-1 Filed 06/25/15 Page 1 of 28

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

MOHAMMED ABDULLAH MOHAMMED
BA ODAH, et al.,

Petitioners,
Civil Action No. 06-1668 (TFH)
V.

BARACK H. OBAMA, et al.,

Respondents.

 

MEMORANDUM OF LAW IN SUPPORT OF 
MOTION TO REINSTATE HIS HABEAS PETITION
AND FOR JUDGMENT ON THE RECORD

Petitioner, Tariq Ali Abdullah Ba Odah, through his undersigned counsel, respectfully
submits this Memorandum of Law in support of his motion to reinstate his habeas petition and
for judgment on the record.

INTRODUCTION

Petitioner, Tariq Ali Abdullah Ba Odah, is a Saudi resident of Yemeni descent who has
been imprisoned at Guantanamo since 2002. He is approved for transfer. As the government
reported during counsel?s last trip to Guantanamo, Mr. Ba Odah?s weight has dropped to an
alarming 74.5 pounds. That amounts to merely 56% of his ideal body weight, a status typically
associated with hospice or late-stage cancer patients. Mr. Ba Odah is visibly suffering from the
devastating effects of severe malnutrition and is at serious risk of permanent physical and

neurological impairment and death. He seeks habeas relief from this Court because the laws of

war no longer authorize his continued detention under the Authorization for the Use of Military

Case Document 273-1 Filed 06/25/15 Page 2 of 28

Force This Court is thus empowered and, under the circumstances here, obligated to
provide that relief.

Mr. Ba Odah is on a prolonged hunger strike to peacefully protest his over thirteen years
of indefinite detention without charge. As of this filing, he has not voluntarily eaten food in
eight years and four months. Despite being force fed, Mr. Ba Odah is suffering from an array of
dangerous attributable to severe malnutrition. At this sensitive stage, however, where
his body appears unable to properly absorb calories or micronutrients, his further deterioration
cannot likely be remediated by increasing the volume of commercial liquid formula the
government feeds him through his nose though Mr. Ba Odah reports the government has
already attempted that approach. Even ingesting solid food now presents a mortal risk to Mr. Ba
Odah.

Though medical opinion scarcely seems necessary, three independent medical experts
conclude primarily on the basis of Mr. Ba Odah?s shockingly low weight that he is gravely
malnourished and in danger of catastrophic physical and neurological impairment and even
death. In their clinical opinion, that outcome could occur slowly, within a period of months
through continued progressive degeneration, or suddenly with the onset of common injury or
infection that could overwhelm his body?s diminished capacity.

As the Supreme Court explained in Hamdi v. Rumsfeld, 542 US. 507 (2004), the

 

government?s asserted authority to indefinitely detain Mr. Ba Odah, pursuant to the
Authorization for the Use of Military Force, is expressly constrained by the laws of war. The
laws of war are incorporated into binding domestic law set forth in US. Army Regulation 190-8,
which delineates categories of prisoners who are seriously ill, such as Mr. Ba Odah, and provides

for their direct humanitarian release and repatriation. For this Court to exercise its remedial

Case Document 273-1 Filed 06/25/15 Page 3 of 28

habeas powers consistently with the very same law of war authority in no way impinges on the
Executive?s prerogative to assess future threats, nor otherwise implicates sensitive military
judgments. Mr. Ba Odah?s indisputably dire medical condition, detailed below, authorizes and
obligates his release and repatriation under Army Regulation 190-8.

Short of his release (to Saudi Arabia or other appropriate destination) and urgent,
sophisticated medical care, Mr. Ba Odah may well die in US. custody and possibly in a period
of months. He is therefore compelled to move this Court to reinstate his habeas corpus petition
and seek an order requiring the government to take every necessary step to release him without
delay.

BACKGROUND

A. Relevant Procedural History and Basis for Reinstatement

Mr. Ba Odah is a citizen of Yemen and resident of Saudi Arabia. In 2002, the
government imprisoned Mr. Ba Odah at Guantanamo, but has not since charged him with a
crime. He remains there today in solitary conditions, which he has endured almost without
interruption since 2009. He is approved for transfer with conditions, meaning the Guantanamo
Review Task Force an interagency body comprised of all those national security, law
enforcement, and diplomatic agencies with a mandate over Guantanamo detainee affairs 
determined that ?[b]efore the closure of Guantanamo, [Mr Ba Odah] may be transferred if the
security conditions in Yemen improve, [or] an appropriate rehabilitation program or third-
country resettlement option becomes available . . . Resp?ts? Notice Lifting Protected
Information Designation of Decisions by the Guantanamo Bay Review Task Force [Dkt. No.

261] Exhibit 1, p. 10.

Case Document 273-1 Filed 06/25/15 Page 4 of 28

Mr. Ba Odah filed a petition for a writ of habeas corpus on September 28, 2006. [Dkt.
No. In February 2007, Mr. Ba Odah began a hunger strike, as further explained below, to
peacefully protest his indefinite detention. On January 12, 2009, counsel filed an unopposed
motion to stay his petition because Mr. Ba Odah often declined or was physically unable to
attend attorney-client meetings. [Dkt. No. 83]. On January 13, 2009, then-presiding District
Court Judge Henry Kennedy issued an indefinite stay of this matter. [Dkt. No. 85]. On July 23,
2013, after transfer to this Court, Hon. Thomas F. Hogan issued a minute order requiring Mr. Ba
Odah to indicate his ?intention either to proceed or withdraw his habeas petition.? His health
dictated that he elect to withdraw, in his already weakened state, Mr. Ba Odah could not
effectively participate in mounting a defense to the government?s allegations against him. On
March 3, 2014, with the government?s consent, Mr. Ba Odah moved this Court to withdraw his
petition without prejudice. [Dkt. No. 270]. The motion was granted on March 13, 2013. [Dkt.
No. 271].

As detailed in the supporting declaration of Omar Farah, Esq. (?Farah during a
meeting with Mr. Ba Odah on April 21, 2015, Mr. Ba Odah acknowledged his precarious
physical and neurological state and signed a written authorization for counsel to seek
reinstatement of his habeas petition and all other appropriate relief on his behalf.1 Farah Dec]. 1]

12.

 

1 Mr. Ba Odah has a constitutional right to seek habeas relief. He does so here under the

extraordinary circumstances detailed in this motion, including over thirteen years of indefinite
detention and over eight years on hunger strike enduring nasal tube feedings an ordeal his body
no longer appears able to endure. Reinstating his petition, which was pending before this Court
for over three years and was dismissed without prejudice, is common procedure in in this Court
in managing habeas petitions, see= Order Reopening Habeas Corpus Case, Aamer V. Obama,
No. 04-2215 (D.D.C. 2015), [Dkt No. 277]; it conserves judicial resources, permits direct
adjudication of the merits of the motion, and is appropriate here.

Case Document 273-1 Filed 06/25/15 Page 5 of 28

B. Petitioner?s Eight-Year Hunger Strike

As this Court is aware from prior filings, Mr. Ba Odah has been on an uninterrupted
hunger strike since 2007, to peacefully protest his indefinite imprisonment at Guantanamo. Each
day, the military force-feeds him a commercial liquid supplement. The process involves military
and medical staff strapping him to a restraint chair and inserting a tube up his nose to drain liquid
supplement into his stomach. He says the daily tube-feedings are humiliating. I_d at 11 24. He
calls it torture. I_d

Mr. Ba Odah believes his protest has provoked a punitive backlash from the military,
designed to get him to abandon his hunger strike. This is manifested by, among other abuses and
indignities, violent cell-extractions, force-feeding sessions that leave him wet with his own
vomit, and unremitting confinement in solitary conditions in Guantanamo?s Camp 5, where now
he says he does not see anyone and he does not see the sun. This is to say nothing of his
torment: Mr. Ba Odah is plagued by uncertainty about his fate. After over thirteen
years of indefinite detention, Mr. Ba Odah fears he may never leave Guantanamo though he has
never been charged and despite being approved for release by the very government that
continues to imprison him.

Mr. Ba Odah does not wish to die; he wishes to be reunited with his family in Saudi
Arabia or to be freed to any other safe country where he can begin to recover. Farah Decl. 11 48.
At the same time, he feels compelled by the injustice he is enduring at Guantanamo to continue
his hunger strike, the only peaceful way available for him to protest with self-control and with
dignity. If he were repatriated to Saudi Arabia or resettled elsewhere, he would end his hunger
strike and welcome rehabilitative care. He seeks peace and a return home: ?There is nothing

else I want. There is nothing better that I care about.? Li.

Case Document 273-1 Filed 06/25/15 Page 6 of 28

C. Mr. Ba Odah?s Crisis-Level Physical and Condition

For years, Mr. Ba Odah has suffered a variety of of undernourishment surely
not uncommon among other long-term hunger striking Guantanamo prisoners who are subjected
to nasogastric force-feedings. However, the most striking manifestation of his precarious health
has been the steady drop in his body weight, which has reached a dangerous ?oor in recent
months. In 2007, Mr. Ba Odah reports that he was 140 pounds. 11. at 11 33. By approximately
October 2012, Mr. Ba Odah says he was 105 pounds. Six months later, in April 2013, he
reported that he weighed only 90 pounds. And in July 2014, just months after Mr. Ba Odah
voluntarily withdrew his habeas petition, his weight had fallen further to approximately 85
pounds. Li. at 11 35.

From his previously reported low of 85 pounds, Mr. Ba Odah?s weight has fallen even
further. According to the government, Mr. Ba Odah weighs 74.5 pounds merely 56% of his
ideal body weight. I_d. at 11 13. Despite his long-term suffering, it is this profound and acute
deterioration particularly in the time since Mr. Ba Odah withdrew his petition that
precipitates this action. During meetings with counsel in March and April of this year, Mr. Ba
Odah was so dramatically underweight as to be essentially unrecognizable, even by standards of
his usual frailty. I_d. at 1111 9-11. In the absence of a photograph, counsel can only compare Mr.
Ba Odah?s appearance to iconic and horrifying photographs of Holocaust survivors. at 11 16.
Upon entering the meeting cells at GuantanamoOdah are his rail-thin
arms, the outline of his shoulders, his ribcage, and his hipbones covered by a prison smock. I_d.
at 11 37. On March 17, he allowed counsel to view his naked torso, each of his ribs was visible as
though there was only skin covering them, but little muscle or tissue. at 1111 16-17. He has

demonstrated that he can nearly touch the tips of his pinky finger and thumb around his own

Case Document 273-1 Filed 06/25/15 Page 7 of 28

bicep. at 11 18. The image of his protruding jawline and teeth was jarringOdah?s own words: ?My life is not like it was, this is the hardest time I have ever had.? at
11 11.

Associated with his declining health, Mr. Ba Odah suffers from bouts of extreme
exhaustion something counsel has witnessed and which have even caused Mr. Ba Odah to
abruptly end in?person meetings. at 11 3. He complains that his vision has weakened. at 11
38. He also says that his feet swell and his joints stiffen such that he does not feel he can walk
confidently on his own power. Mr. Ba Odah is plagued by severe migraine-like headaches
and other neurological ailments like frequent nervousness and agitation. at 11 39. He describes

97 (L

the sensation as one of his ?muscles and nerves shivering, needles in [his] heart,? and a ?racing
heartbeat.? Mr. Ba Odah recently declined to take a phone call from counsel on June 9, prior
to the filing of this motion. at 11 10. Mr. Ba Odah has forewarned counsel that such refusals
are caused by some combination of the above or mistreatment by guard staff at 1111
10, 32.

Other of Mr. Ba Odah?s undeniable starvation signal that his body is
overwhelmed. Mr. Ba Odah reports that he is progressively losing sensation in his hands and
feet. at 11 19. He also says that he is now mostly bedridden because standing causes him to
feel dizzy, but sitting up also leads to back pain, which counsel has observed first-hand during
meetings. at 11 20. Mr. Ba Odah complains that his ability to focus and recall information has
been compromised. at 1111 21-22. During both a March and an April meeting, counsel
observed that Mr. Ba Odah periodically went through spells during which he momentarily

appeared vacant. at 11 21. When Mr. Ba Odah became alert, he would ask for information to

be repeated to him. 

Case Document 273-1 Filed 06/25/15 Page 8 of 28

Mr. Ba Odah?s progressive deterioration is all the more distressing in light of what he
says has been a significant increase in the amount of liquid supplement the government is
feeding him. ?What I used to get in two or three [feeding] sessions,? he says, now get in one.?
I_d. at 11 23.

D. Medical Expert Analysis

Common sense dictates that Mr. Ba Odah is starving because his body is failing to
properly absorb and process the liquid calories and nutrients he is being force fed. No other
conclusion is viable unless one presumes the government intends to maintain him at just 56% of
his ideal body weight while he is on hunger strike. But in recognition of the limited medical
record before the Court about Mr. Ba Odah?s health, counsel sought expert medical opinion
based on Mr. Ba Odah?s reported and the government?s representation on April 20,
2015 that he weighs 74.5 pounds. Each of these experts: (1) expresses shock that an adult male
has been diminished to such a dramatically low weight a status associated with late-stage
hospice, cancer and AIDS patients; (2) confidently opines on this basis as well as on reported
that Mr. Ba Odah is suffering from severe malnourishment, a morbidly dangerous
condition that may have already produced serious physical and/or neurological damage and; (3)
reports that absent urgent and sophisticated medical intervention that Mr. Ba Odah cannot
receive so long as he remains in Guantanamo, this deterioration could eventually kill him,
possibly in a period of months.

These independent, expert opinions are provided by Dr. Jess Ghannam, Clinical Professor
of and Global Health Sciences in the School of Medicine at the University of
California, San Francisco, Exhibit B, Declaration of Dr. Jess Ghannam, dated June 21, 2015

(?Ghannam Dr. Mohammed Rami Bailony, Medical Director of Enara Health Group,

Case Document 273-1 Filed 06/25/15 Page 9 of 28

PC, and part-time Internal Medicine Hospitalist at Kaiser Hospital in San Jose, California, 
Exhibit C, Declaration of Dr. Mohammed Rami Bailony, dated June 18, 2015 (?Bailony 
and Professor and Dr. Sondra S. Crosby, Co-Founder of the Immigration and Refugee Health
Program at the Boston Medical Center, and Co-Director of Forensic Medicine at Boston
University School of Medicine, Exhibit D, Declaration of Dr. Sondra Crosby, dated June 22,
2015 (?Crosby 

Without Mr. Ba Odah?s medical records or history, Drs. Ghannam, Bailony, and Crosby
are able to unanimously conclude that Mr. Ba Odah is suffering from severe malnourishment and
is at substantial risk of imminent death, caused by multiple health complications, each potentially
lethal in their own right. Ghannam Decl. at 11 Crosby Decl. 1111 5, 45; Bailony Decl. 11 31.
They conclude, for example:

0 In the absence of any remaining fat or protein ?stores? in his body, Mr. Ba Odah?s
body will inevitably cannibalize organ mass and vital proteins, presaging organ
failure and death. Bailony Decl. 1111 24?26. impact on vital organ
depletion is severe and the consequences grave. Morbid potentially fatal)
complications from organ damage including sepsis, respiratory failure, acute renal
failure, and ultimately hemodynamic collapse (requiring advanced cardiac and
respiratory support) are all increased with the caloric deprivation and resultant protein
cannibalization.? I_d. 1] 26 (emphasis added).

0 Complications from chronic malnutrition include, ?hemodynamic instability
(bradycardia, hypotension), (prolonged QT interval), volume depletion,
metabolic alkalosis, liver in?ammation, coagulopathy, bone marrow suppression,
hypoglycemia, fall risk, gastroparesis and aspiration risk, cerebral atrophy and
cognitive impairment, and osteoporosis. All organ systems can be a?ected by
malnutrition, and damage can be irreversible. Death occurs by fatal heart
infection, or other organ failure.? Crosby Decl. 11 31 (emphasis added).

0 Persistent micronutrient deficiency, particularly thiamine (B-1 vitamin) deficiency
classically associated With chronic malnutrition can produce of the kind
Mr. Ba Odah complains of, such as dry beriberi (associated with numbness in
extremities) and Wernicke-Korsakoff? encephalopathy, a serious and potentially
lethal disorder that can produce heart failure. Bailony Decl. 1111 30, 35.

Case Document 273-1 Filed 06/25/15 Page 10 of 28

In addition to the fatal decline associated with the longer-term effects of malnutrition, the
physicians each stress that, given the severe protein, calorie and micronutrient deficiencies found
in extremely malnourished bodies, minor stresses caused by infection or fever can overwhelm
the system and precipitate total body collapse. As Dr. Bailony explained, severe malnutrition

creates a very dangerous spiral: from the calorie deficiency in

turn demands more calories from the body to combat their effects, but without

those calories the body sustains greater injuries. Death is the inevitable long-

term result, if infection or injury does not hasten it.
Bailony Decl. 11 17?, Crosby Decl. 1] 33 (?In addition to his anticipated progressive
malnutrition-driven decline, I must stress that in Mr. Ba Odah?s precarious state, small insults
such as injury, infection or fever can set off a fatal cascade of organ failure?), Ghannam Decl. 1]
20 (describing risk of total body collapse, ?a medical phenomenon in which sickly, but
apparently stable patients, rapidly deteriorate and expire from cascading failures of the body?s
vital organs and systems?).

In cases of severe malnutrition, changes often happen at a cellular level that make caloric
absorption difficult. Bailony Dec]. 11 30(a) stomach and intestine cells during starvation
change their intracellular composition, which prevents the proper absorption of nutrients. This
only exacerbates patients? preexisting micronutrient de?ciency, causing a potential death spiral:
malnourishment changes the molecular functioning of cells that frustrates micronutrient
absorption, which in turn amplifies the effects of starvation?). This pattern is consistent with Dr.
Bailony?s calculation, based on verified medical formulas, that Mr. Ba Odah is chronically and
necessarily calorie deficient, regardless of the amount of nutritional formula he is ingesting.
Bailony Decl. 1] 14. Globally verified nutritional health assessments put individuals with Mr. Ba

Odah?s predicted malnourishment in a grade whose median expected mortality is approximately

6 months. Id. at ?l 22.

10

Case Document 273-1 Filed 06/25/15 Page 11 of 28

It is for these reasons that Mr. Ba Odah?s condition can in no way be clinically stable.
at 1111 6, 28 (?His body is in a state of persistent, inevitable morbid decline and is at every
moment presenting a latent but severe risk of death from infection?). As Dr. Bailony explains,
the fact that his weight has not further declined is in no way reassuring. To the contrary, given
that basic human mass (skeleton, organs, blood) cannot be lost, Mr. Ba Odah may well have no
more weight to lose. As such, ?the caloric deficiency he is enduring may not manifest in
continued weight loss; instead it may manifest as further and progressively life-threatening
I_d at 11 16. People who die from malnutrition do not continue to lose weight
below a 50% threshold; instead ?[t]hey die precisely at the level of lost body mass Mr. Ba Odah
is at now or even at a greater percentage body weight from the effects of malnutrition on the
body?s functioning.? Li. at 11 18', Crosby Decl. 11 30 (?It is widely accepted that body
weights below 70% of ideal body weight are considered medically dangerous because of
increased risk of multiorgan dysfunction, life-threatening medical complications, and sudden
death?).

Many of the Mr. Ba Odah manifests are classically associated with
malnutrition. Bailony Decl. 11 Crosby Decl. 1111 34-37; Ghannam Decl. 11 3. And some of
these may suggest he is already suffering from or at risk of permanent damage, should he even
survive. For example, the cellular changes in the stomach and intestines that inhibit
micronutrient absorption may produce damage to intestinal lining from which he may ?never
Bailony Decl. 11 30(a). Likewise, Dr. Crosby explains, ?[G]iven the length of his
hunger strike, his reported and very low body weight, it would not be surprising if he
has suffered long-term damage to his GI tract, which can be irreversible.? Crosby Decl. 11 40. In

addition, the foot-swelling reported by Mr. Ba Odah constitutes a ?significant (leg

11

Case Document 273-1 Filed 06/25/15 Page 12 of 28

edema), highly unusual in someone of Mr. Ba Odah?s age, which suggests the potential existence
of serious conditions including ?protein deficiency, heart failure, or kidney failure.? Bailony
Decl. 1i 35.

Mr. Ba Odah?s reported neurological impairments are no less a feature of extreme
malnourishment. He reports losses of short-term memory and poor concentration, migraine-like
headaches, chronic dizziness, weakened vision, and persistent numbness in his extremities. Farah
Decl. 3, 20-22, 38-39. Dr. Ghannam observes that these ?are concerning and could
be indicative of severe damage.? Ghannam Decl. 11 31. Dr. Ghannam also
explains that the damage may have already occurred: may be facing permanent
impairment in his ability to process information and damage to his short-term memory . . . [and]
permanent and potentially challenging of depression, anxiety, and PTSD which will
result in Mr. Ba Odah?s struggling to overcome sensations of perpetual fear, hopelessness and
despair.? 11. at 1i 46; Crosby Decl. 1l 40 (?It is also certainly possible that he has suffered
long-term neurocognitive impairment?).

Each of these doctors explains that Mr. Ba Odah should receive the highest level of
urgent care. Dr. Bailony clarifies that acute hospitalization, though necessary, is still insufficient
to restore Mr. Ba Odah to ?what is commonly understood as good health. Rather, this is what is
minimally necessary to remove him from danger of death.? Bailony Decl. 1] 42. Mr. Ba Odah?s
need for care ?would dictate strict medical supervision in a hospital setting,? to be followed by
?long-term monitoring, outpatient care and rehabilitation.? Crosby Decl. 39, 45. What each
doctor makes clear, is that there is a serious risk of fatality from ?refeeding and Mr.

Ba Odah cannot reverse his decline by merely choosing to eat again. Ghannam Decl. ll 44;

 

12

Case Document 273-1 Filed 06/25/15 Page 13 of 28

Crosby Decl. 1 41. ?Put simply,? states Dr. Crosby, ?Mr. Ba Odah?s survival and rehabilitation

 

are out of his hands.? Crosby Decl. 11 41.

In addition to the immediate nutritional intervention necessary to stave off Mr. Ba Odah?s
decompensation, of neurological damage indicate ?he may need physical therapy with
sophisticated diagnostic and rehabilitative equipment for a period of 6 months to a year, or

perhaps more.? Bailony Decl. 11 44; see also Crosby Decl. 11 40 (?He will likely require long-term

 

rehabilitation for muscle reconditioning, including physical therapy?). Dr. Ghannam adds that
his neurological and care requires ?substantial diagnostic evaluation and
remediation, including Magnetic Resonance Imaging (MRI), Functional MRI 
Electroencephalography (EEG), and a full assessment.? Ghannam Decl. 11
36.

Mr. Ba Odah?s chances of emerging from his medical crisis are only frustrated by his
continued detention. For one, Mr. Ba Odah continues to be detained in solitary conditions a
strong exacerbating factor to his vulnerable state, which likely amplifies some of his 
while depressing his physical ability to overcome them. I_d. at 1111 21, 34. In any event,
Guantanamo facilities may be ill-equipped to provide Mr. Ba Odah the required care. at 11 16.

A further, likely insurmountable obstacle to his recovery is his ?predictable and clinically
explained? distrust of medical staff at Guantanamo. at 1] 41. After over eight years of tube-
feedings, Ba Odah says he feels like a ?guinea pig? and is convinced his doctors are involved in
his abuse. Farah Decl. 11 44. Drs. Ghannam and Crosby both observe that the doctor-patient
relationship appears severely compromised in Ba Odah?s situation, precluding his effective
treatment at Guantanamo. Ghannam Decl. 1111 39-43; Crosby Decl. 1111 42-44. Deep mistrust in an

incarcerated individual towards the custodial institution?s medical staff whom the individual

13

Case Document 273-1 Filed 06/25/15 Page 14 of 28

reasonably associates with the punitive regime is common and triggers an ethical duty, per
accepted international protocols, to ensure independent medical diagnosis and treatment. Crosby
Decl. 111] 43-44.

ARGUMENT
I. BINDING DOMESTIC LAW, INCORPORATING THE LAWS OF WAR, LIMITS

THE DETENTION AUTHORITY AND REQUIRES THE
RELEASE OF SICK AND WOUNDED PRISONERS.

The government?s authority to detain Mr. Ba Odah at Guantanamo is derived from the
Authorization for the Use of Military Force AUMF, Pub. L. 107-40 115 Stat.

224, 224 (2001). In Hamdi V. Rumsfeld, the Supreme Court sanctioned the detention of

 

individuals who fall within the scope only because ?detention . . . is so fundamental
and accepted an incident to war as to be an exercise of the ?necessary and appropriate force?
Congress has authorized the President to use.? 542 US. 507, 518 (2004) (quoting AUMF). This
conclusion turned upon ?universal agreement and practice? in international law. 11. But
international law what Justice O?Connor referred to in Ha_mdi as ?clearly established
principle[s] of the law of war? also constrains the government?s authority to detain under the

AUMF in ways that are consequential here.2 at 520-21, accord Hamdan v. Rumsfeld, 548

 

US. 557, 603, 681 (2006) (relying on ?universal agreement and practice both in this country and
internationally? to define law of war offenses).
The Third Geneva Convention, a cornerstone of international law of war principles,

provides for the release and repatriation of prisoners who are ?seriously sick.? See Geneva

 

2 In filings before this Court, the government concedes that its authority is constrained by

the laws of war, including the Geneva Conventions. See, Resp?ts? Mem. Regarding the
Government?s Detention Authority Relative to Detainees Held at Guantanamo Bay at 1 [Dkt
117]; Br. for Resp?ts-Appellees 4; Al Warafi, 716 F.3d at 629 (?the detention authority conferred
by the AUMF . . . is informed by the laws of war, and the laws of war include the First Geneva
Convention?).

14

Case Document 273-1 Filed 06/25/15 Page 15 of 28

Convention Relative to the Treatment of Prisoners of War, Retained Personnel, Civilian
Internees, and Other Detainees art. 109-110, Aug. 12, 1949, 6. U.S.T. 3316, 75 U.N.T.S. 135
(hereinafter ?Third Geneva Convention?). Specifically, the Third Geneva Convention
commands that ?[p]arties to the con?ict . send back to their own country, regardless of
number or rank, seriously wounded and seriously sick prisoners of war? a category of prisoner
it defines as:

(1) Incurably wounded or sick whose mental or physical fitness seems to have
been gravely diminished.

(2) Wounded and sick who, according to medical opinion, are not likely to
recover within one year, whose condition requires treatment and whose

mental or physical fitness seems to have been gravely diminished.

(3) Wounded and sick who have recovered, but whose mental or physical
fitness seems to have been gravely and permanently diminished.

The obligation to release seriously wounded and sick prisoners derives its force from the
established law of war prohibition against punitive detention. In recognizing that principle, the
Supreme Court affirmed that detention is appropriate solely for purpose of preventing a captive?s

return to the battlefield. Hamdi, 542 US. at 518 (?the only purpose of [detention] is to prevent

 

prisoners of war from further participation in the war?) (citations omitted). Where such return
becomes impossible owing to a prisoner?s sickness, the authority to detain expires.

US. Army Regulation 190-8, which binds all branches of the US. military, employs the
above language from the Third Geneva Convention nearly verbatim. By its terms, commanders
at all levels are to ensure detainees in US. military custody ?are accounted for and humanely
treated, and that collection, evacuation, internment, transfers, release, and repatriation

operations are conducted per this regulation.? US. Army Regulation 190-8, Enemy

15

Case Document 273-1 Filed 06/25/15 Page 16 of 28

Prisoners of War, Retained Personnel, Civilian Internees, and Other Detainees, ch. 1, 1-4(g)
(Oct. 1, 1977) (hereinafter ?Army Reg. 190-8?) (emphasis added). Mirroring the Third Geneva
Convention, Army Reg. 190-8 sets out categories of detainees including enemy prisoners of
war (EPWs) and retained personnel (RPS) that are eligible for direct repatriation according to
the following standards:
(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.
Army Reg. 190-8 at ch3, 
Army Reg. 190-8 codifies into binding domestic law the international law of war
principle that calls for the repatriation of seriously ill prisoners. Moreover, it authorizes the
habeas relief Mr. Ba Odah seeks here. Al-Warafi, 716 F.3d at 629 (affirming that Army Reg.
190-8 is binding domestic law and therefore properly invoked in a Guantanamo habeas

proceeding); see also Aamer, 2014 US. Dist. LEXIS 85343 at *27 (?Respondents exclaim that

Petitioner?s request for repatriation [under Army Reg. 190-8] is substantively different from the

 

3 Though Army Reg. 190-8 refers to repatriation, the government cannot contend that

political instability in Yemen bars Mr. Ba Odah?s release. Though he is a Yemeni national, his
family emigrated to the Kingdom of Saudi Arabia when Mr. Ba Odah was an infant and
continues to reside there today. Farah Decl. 11 5. Given the urgent need to release him from
Guantanamo to any country where he can be safely resettled and rehabilitated, the government
must also pursue transfer to countries other than Yemen something the US. government has
accomplished for several other Yemeni prisoners recently. Charlie Savage, 6 Guantanamo
Detainees from Yemen Are Transferred to Oman, NY. Times, June 13, 2015,

are-transferred-to-oman.html (describing the recent release and resettlement of six Yemeni
detainees to Oman). The situation in Yemen, such as it is, has no bearing on the relief Mr. Ba
Odah seeks here.

16

Case Document 273-1 Filed 06/25/15 Page 17 of 28

ordinary habeas petition. Not (emphasis added). Therefore, when read with reference to its
mandatory law-of-war constraints, the AUMF does not authorize the indefinite imprisonment of
Mr. Ba Odah who is now desperately ill, possibly near death.

II. MR. BA ODAH IS ENTITLED TO RELEASE UNDER ARMY REGULATION
190-8 BECAUSE HE IS GRAVELY ILL.

The provisions of Army Reg 190-8 that call for the repatriation of sick prisoners cover
Mr. Ba Odah. As outlined above, the regulation states that enemy prisoners of war are entitled to
direct repatriation where, among other things, their ?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 Reg. 190-8 at ch. 3, As a threshold matter,
no competent legal authority has yet ascertained Mr. Ba Odah?s legal status at Guantanamo. It is
of no consequence that the government unilaterally elected not to classify Mr. Ba Odah as a
?prisoner of war,? applying to him instead its previously unheard of ?enemy combatant? label.

Boumediene v. Bush, 553 US. 723, 729-30 (2008) (identifying ?myriad deficiencies? of the

 

Combatant Status Review Tribunal process by which detainees were designated ?enemy

Because his legal status is unresolved, the regulation categorizes Mr. Ba Odah as an

?other detainee? and confers on him protections otherwise reserved for enemy prisoners of war,

 

4 Even if the government were to attempt to revive the term, Mr. Ba Odah?s designation as

an ?enemy combatant? by a 2004 Combatant Status Review Tribunal (CSRT) does not foreclose
his reliance on Army Reg. 190-8. A1 Warafi, 716 F.3d at 629 (analyzing whether a
Guantanamo petitioner qualified as a medic under Army Reg. 190-8 though he, too, was
designated an ?enemy combatant?); Aamer v. Obama, 2014 US. Dist. LEXIS 85343 at *25
(D.D.C. June 24, 2014) (rejecting the government?s contention that the ?enemy combatant?
designation disqualified Guantanamo petitioner from treatment as an ?other detainee? and barred
his recourse to Army Reg. 190-8, noting ?that the Obama Administration apparently jettisoned
the terms ?enemy combatant? years ago . . . 

17

Case Document 273-1 Filed 06/25/15 Page 18 of 28

including eligibility for direct repatriation for the sick. Army Regulation 190-8, Glossary,
Section II-Terms (?Persons in the custody of the US. Armed Forces who have not been
classified as an EPW (article 4, GPW), RP (article 33, GPW), or C1 (article 78, GC), shall be
treated as EPWs until a legal status is ascertained by competent authority?)5 Therefore all that
remains is for Mr. Ba Odah to demonstrate that his physical condition which in Dr. Ghannam?s

clinical experience is ?a phenomenon rarely, if ever encountered in the medical profession? and

 

5 In Aamer V. Obama, the court required the petitioner seeking relief under Army Reg.

190-8 to either apply for direct repatriation from the government or request an examination by a
Mixed Medical Commission (MMC), the results of which could persuade the government to
grant release (or convince the court to issue an order to that effect). 2014 US. Dist. LEXIS
85343, 26-27 (D.D.C. June 24, 2014), see also Army Regulation 190-8 ch.3, That
process would be futile in this case.

First, in over thirteen years of indefinite detention, the government has made no effort
that counsel is aware of to release Mr. Ba Odah. Just as the government indicated its opposition
to this Motion, a formal request for release under Army Reg. 190-8 would likely meet the same
response. Exhibit (Department of Justice Letter of November 20, 2014, denying request
for direct repatriation and Mixed Medical Commission by Guantanamo prisoner Shaker Aamer).
Second, seeking consent for a MMC would be similarly ineffectual. The government already
took the position that it would not permit Mr. Ba Odah to retain an independent, non-military
medical expert to examine him at Guantanamo. At present, it also refuses to disclose copies of
his medical records. Farah Decl. 11 15. In his precarious condition, Mr. Ba Odah should not be
made to pursue these measures; more than likely they will result in him returning to this Court to
seek precisely the same relief he seeks now only after having been prejudiced by significant,
and ultimately, unnecessary delay.

Finally, while this Court is empowered to order the government to release Mr. Ba Odah?s
medical records, to grant him access to an independent medical exam, or, for example, to compel
the convening of a MMC, there is already ample, unambiguous evidence on the record to
explicitly establish Mr. Ba Odah?s entitlement to release. Even without seeing him, three
medical experts conclude that Mr. Ba Odah is at risk of sudden death. At 74.5 pounds, no MMC
could conclude otherwise. Consequently, his continued detention is not authorized under the
AUMF and the procedural steps set out in Army Reg. 190-8 do not prevent this Court from
issuing an order requiring the government to effect Mr. Ba Odah?s urgent release. Hensley
v. Municipal Court, 411 US. 345, 349-50 (1973) (?habeas corpus is not ?a static, narrow,
formalistic remedy,? but one which must retain the ?ability to cut through barriers of form and
procedural mazes. (emphasis added) (citations omitted); Boumediene v. Bush, 553 US. 723,
779-80 (2008) (habeas remedies are adaptable, their ?precise application and scope chang[ing]
depending upon the circumstances?) (citations omitted).

 

18

Case Document 273-1 Filed 06/25/15 Page 19 of 28

manifestly life-threatening, Ghannam Decl. 1] 20 meets the standard of ill health set out in
Army Reg. 190-8 above.6

Unless the Army Regulation and its admonition that detainees are to be treated
humanely are deemed meaningless, Mr. Ba Odah surely meets this standard. Army Reg.
190-8, ch. 1, First, it cannot be disputed that Mr. Ba Odah is gravely ill and that he is at
serious risk of death from the effects of starvation. The government confirms that at the time of
counsel?s last visit to Mr. Ba Odah, he weighed 74.5 pounds 56% of his ideal body weight.

Mr. Ba Odah?s physique brings to mind liberation photos of Holocaust survivors: his face was
drawn such that his jawbone and teeth protruded; his ribs were visible through his skin as though
no muscle or tissue covered them. Farah Decl. 16-18.

Medical experts regard the ?shocking? fact of his diminished weight as clinically
dispositive of chronic illness that presages death. Bailony Decl. 6 (?This is a shocking
medical fact that alone indicates the presence of a crisis-level medical condition presaging organ
failure, neurological damage and, inevitably, death?); Crosby Decl. 1l 5 (Based on his weight and
reported can confidently say that Mr. Ba Odah is suffering from severe

malnutrition and that . . . such a state of starvation will, without medical intervention, lead

 

6 Judicial determinations about prisoners? ill health grounded in affirmative law-of-war

limitations on the government?s detention authority are categorically distinct from an inquiry
into whether a prisoner might pose a ?threat? to the US. in the future. While common sense
dictates that a prisoner approved for transfer, weighing 74.5 pounds and bedridden by
malnutrition poses little threat to the US, that is not the question presented here. Awad v.
Obama, 608 F.3d 1, 11 (DC. Cir. 2010) (?Whether a detainee would pose a threat to US.
interests if released is not at issue in habeas corpus proceedings in federal courts concerning
aliens detained under the authority conferred by the To adjudicate this motion, the
Court need only determine that Mr. Ba Odah?s morbidly severe, potentially permanent health
complications bring him within codified law-of-war protections reserved for seriously ill
prisoners, including eligibility for direct release. Here, the Court is asked to render its judicial
assessment of undisputable medical opinion, and for which the military has no superior expertise
and is entitled to no deference.

19

Case Document 273-1 Filed 06/25/15 Page 20 of 28

inevitably to death, possibly in a period of months?). As Dr. Ghannam explains, ?a weight of 75
pounds for an adult male is a phenomenon rarely, if ever encountered by the medical profession.
It is a level of physical deterioration typically seen in a late-stage cancer or AIDS patient.?
Ghannam Decl. 1] 20. Indeed, ?anything below 70% of ideal body weight a redline Mr. Ba
Odah long ago exceeded considered medically dangerous because of increased risk of
multiorgan dysfunction, life-threatening medical complications, and sudden death.? Crosby
Decl. 1l 30 (emphasis added).7

Mr. Ba Odah faces death from the inevitable course of starvation, which eventually
overtakes the body?s ability to function. Potentially due to damage to the cellular composition in
his stomach and intestines associated with malnutrition, Bailony Dec]. 1] 30(a) (or other factors),
Mr. Ba Odah is not absorbing sufficient number of calories, even as he is being forcibly fed
more and more nutritional supplement. This chronic caloric deficiency from malnutrition is
associated with substantial depletion of vital organ mass (as the body cannibalizes proteins from
vital organs in order to survive) and compromised organ functioning, which can ultimately result

in ?sepsis, respiratory failure, acute renal failure, and ultimately hemodynamic collapse

 

7 All of the medical experts recognize that they cannot make a conclusive diagnosis about

the underlying for Mr. Ba Odah or a precise estimate of his chances of survival,
but that does not diminish the certainty of their conclusion about the prospect of underlying
injury and risk of death. Some facts are conclusive. As Dr. Ghannam explains, ?If a doctor is
informed that a patient has a blood pressure of 60/40 systolic over diastolic, the doctor can
confidently state that the individual?s medical condition is not sustainable and that immediate
medical intervention is required, even without knowing the underlying cause of such an
alarmingly aberrant blood pressure reading.? Ghannam Decl. 1l 23. And, regrettably, the
phenomenon of malnutrition and starvation is so widespread and long-standing, that experts can
make some judgments based on broad bands of empirical data. For example, two of the most
widely used global assessments of nutritional health place Mr. Ba Odah ?into the most severe
category of malnourishment.? Bailony Decl. 1] 21. Multiple morbidity studies of malnutrition,
validated across thousands of patients, suggests Mr. Ba Odah falls into a class of patients with a
median survival term of 6 months, which ?sets a norm, standardized across many thousands of
cases, and a reliable guide for the risk of mortality Mr. Ba Odah is facing.? I_d. at 1] 22.

20

Case Document 273-1 Filed 06/25/15 Page 21 of 28

(requiring advanced cardiac and respiratory support). . .  Bailony Decl. 11 26, see also Crosby

 

Decl. 11 33 (describing fatal risks deriving from organ failure). Other complications from chronic
malnutrition include, ?hemodynamic instability (bradycardia, hypotension),? bone marrow
suppression, liver in?ammation, and gastroparesis and aspiration risk. Crosby Decl. 11 31.

Malabsorption of critical micronutrients can also produce severe illness and death. For
example, severe Thiamine (Vitamin B-1) deficiency produces illnesses with of the
kind Mr. Ba Odah complains of, such as dry beriberi (associated with numbness in extremities)
and Wernicke-Korsakoff? a serious and potentially lethal disorder that can produce
heart failure. Bailony Decl. 1111 30, 34.

Beyond Mr. Ba Oda ?s ?persistent state of decline,? Crosby Decl. 11 32, and his
?inevitable decline from wasting and organ failure,? Bailony Decl. 11 27, he faces an additional
risk of sudden death. In his ?fragile state? of depleted caloric absorption and compromised vital
organ functioning, ?any additional stress on the body, from an infection, fever, or serious injury,
could quite simply overwhelm his systemic response causing death in a period of days.? Bailony
Decl. 11 27; Crosby Decl. 11 33 (explaining that in his ?precarious state, small insults such
as injury, infection or fever can set off a fatal cascade of organ failure?).

Critically, there is no comfort to be taken in the government?s representation that Mr. Ba
Odah has maintained his current weight for some months. Mr. Ba Odah cannot be considered
?stable? as that term is used in a responsible clinical sense. Bailony Decl. 11 28 (?His body is in a
state of persistent, inevitable morbid decline and is at every moment presenting a latent but
severe risk of death from infection?). Dr. Bailony calculated Mr. Ba Odah?s likely daily calorie
expenditure and concludes unequivocally that Mr. Ba Odah?s absorption is inadequate?

irrespective of his calorie intake. Bailony Decl. 11 13. If Mr. Ba Odah is not losing weight, in all

21

Case Document 273-1 Filed 06/25/15 Page 22 of 28

likelihood it only because he has already reached a ?oor beyond which additional weight-loss is
biologically impossible. Any continued decline he experiences will thus manifest as varied other
forms of injury ?triggering a spiral of that could overwhelm him. 11. at 1l 23 
Crosby Decl. 11 32. Indeed, ?people who die from malnutrition do not continue to lose weight so
as to finally expire, for example, at 40% of their body weight. They die precisely at the level of
lost body mass Mr. Ba Odah is at now. . . Bailony Decl. ll 18.8

In sum, Army Reg. 190-8 means nothing if prisoners at risk of death due to extreme
malnutrition do not come within its scope.

Second, even were Mr. Ba Odah to survive his immediate crisis and there is strong
medical concern that he may not he is still eligible for repatriation because it is likely that his
health can never be restored at Guantanamo, much less within one year?s time. According to Dr.
Ghannam, the cognitive, neurological, and physical results of Mr. Ba Odah?s malnourishment
and prolonged solitary confinement may include ?permanent impairment in his ability to process
information and damage to his short-term memory?; ?he will most likely be left with permanent
and potentially challenging of depression, anxiety, and PTSD, which will result in Mr.
Ba Odah struggling to overcome sensations of perpetual fear, hopelessness, and despair.?
Ghannam Decl. 34, 46; Crosby Decl. 31, 34 (describing present risk of ?cerebral

atrophy and cognitive impairment? and noting that Mr. Ba Odah?s are consistent with

 

8 To anticipate at least one potentially cynical response to this motion, the fact that Mr. Ba

Odah elected to protest his detention at Guantanamo by hunger striking does not preserve the
government?s authority to detain him under the AUMF. However voluntary his initial decision
was, he is now gripped by myriad physical and complications, including
?persistent caloric malabsorption,? which threaten irreparable harm and even death. Bailony
Decl. 1l 6. Dr. Bailony reports, cannot eat himself back to health and no responsible
physician would attempt this course of re-nourishment.? Bailony Decl. ll 39. ?Put simply,?
confirms Dr. Crosby, ?Mr. Ba Odah?s survival and rehabilitation are out of his hands.? Crosby
Decl. 1l 44.

22

Case Document 273-1 Filed 06/25/15 Page 23 of 28

?neurocognitive derangements that are caused by malnutrition?). This conclusion is consistent
with Dr. Ghannam?s experience treating other long-term hunger strikers though he says none
as deteriorated and grave as Mr. Ba Odah; many ?developed severe chronic health conditions
and permanent medical and damage with a lifetime of disability.? Ghannam Decl.
1] 15.

Dr. Bailony similarly reports that Ba Odah?s stated nutritional may indicate he
?has already suffered or is suffering from medical and neurological injuries that will produce
permanent impairment or disability.? Bailony Decl. 11 6). These include potential organ damage
as well as ?subtle but . . . debilitating? micronutrient deficiency, which ?can be permanent if not
corrected within a reasonable amount of time.? I_d 1H 43, 29; Crosby Dec]. 11 45 (?His
injuries may be permanent?).

Moreover, even if Mr. Ba Odah could receive appropriate medical intervention to
alleviate his crisis medical situation, he would likely need diagnostic tests and long-term care
and rehabilitation to restore him to health and safety. For his likely neurological impairments,
Mr. Ba Odah ?may need physical therapy with sophisticated diagnostic and rehabilitative
equipment for a period of 6 months to a year, or perhaps more.? Bailony Decl. 1l 44. Dr. Crosby
confirms that appropriate recovery ?requires immediate medical evaluation and intervention to
prevent further decline and potential irreversible injury and eventual death? followed by ?long-
term monitoring, outpatient care and rehabilitation.? Crosby Decl. ll 45. Thus three expert
clinicians uniformly conclude that Mr. Ba Odah?s potential rehabilitation would be long and
fraught requiring months, years, or the rest of his life and will depend on sophisticated,

highly attentive care.

23

Case Document 273-1 Filed 06/25/15 Page 24 of 28

Finally, Mr. Ba Odah?s recovery within a year is impossible both because his health is so
shockingly compromised and because the circumstances of his detention undermine any chance
to achieve that recovery. At Guantanamo, he cannot receive either the acute care necessary to
stave off his further deterioration or potential demise, nor can he receive the long-term care and
rehabilitation necessary to restore him to good health.

Apparently unmoved by his crisis-level weight, the government steadfastly confines Mr.
Ba Odah to Guantanamo?s Camp 5, the non-communal housing facility renowned for its
punitive, isolative conditions. Farah Dec]. 11 41. This is exactly the opposite of what Mr. Ba
Odah needs. Solitary confinement compromises an individual?s mental and physical health and
risks bringing about ?multiple chronic medical illnesses, depression, anxiety, sleep disorders, and
permanent damage.? Ghannam Dec]. 1] 33. Moreover, solitary conditions are
?a strong exacerbating factor to his already precarious condition.? Li. at 11 21.9

Even were Mr. Ba Odah granted access to an environment conducive to his recuperation,

an additional, insurmountable obstacle to Mr. Ba Odah?s recovery is his distrust of the very

 

9 Indeed, Justice Kennedy very recently highlighted the cruelty of prolonged solitary

confinement and urged that its use be limited to only core penological needs lest it continue to
in?ict severe, unnecessary damage on a prisoner?s body and mind. He explained:

Of course, prison officials must have discretion to decide that in some instances
temporary, solitary confinement is a useful or necessary means to impose
discipline and to protect prison employees and other inmates. But research still
confirms what this Court suggested over a century ago: Years on end ofnear-total
isolation exacts a terrible price. See, Grassian, Effects of Solitary
Confinement, 22 Wash. U. J. L. Pol?y 325 (2006) (common side-effects of
solitary confinement include anxiety, panic, withdrawal, hallucinations, self-
mutilation, and suicidal thoughts and behaviors).

Davis v. Ayala, 2015 WL 2473373, 21 (S. Ct. June 18, 2015) (Kennedy, ., concurring)
(emphasis added).

24

Case Document 273-1 Filed 06/25/15 Page 25 of 28

medical staff at Guantanamo charged with his care distrust that Dr. Crosby explains ?is widely
observed and understood? among patients in such punitive settings. Crosby Decl. 1l 42. If for no
other reason, Ba Odah developed that mistrust through more than eight years of tube-feedings
through his nose. He now says he feels that he is a ?guinea pig? being used for experimentation
at Guantanamo. He is afraid of medical treatment there and perceives that the medical staff is
integral to the painful restraint and forcible feeding regimen he so despises. Farah Decl. 1H 45,
49.

Mr. Ba Odah?s fear is both a common and clinically predictable outgrowth of his
thirteen-plus years of indefinite detention and his force-feeding. Ghannam Decl. 11 41. Its
consequences for his potential recovery, however, are disastrous. Dr. Ghannam explains that
?the essential foundation . . . of any successful doctor-patient relationship is trust,? without
which ?medical treatment becomes coercive punitive,? and ultimately unviable. Ghannam
Decl. 40, 43. Dr. Crosby reports that the doctor-patient relationship ?is of paramount
importance for treatment and recovery,? and ?may be irrevocably damaged if physicians have
been involved in coercive behavior, such as force-feeding.? Crosby Decl. 42-43. This well-
observed clinical reality triggers an ethical duty on medical professionals. Codified in the Malta
Declaration of the World Medical Association, ethical obligations instruct that when a doctor-
patient has been so compromised, a hunger-striking patient should be provided an outside,
independent physician of confidence. Crosby Decl. 1l 44. As such and leaving aside his
emergent medical condition and other exacerbating factors Mr. Ba Odah cannot recover at

Guantanamo within a year, or possibly ever. Ghannam Decl. 11 47.

25

Case Document 273-1 Filed 06/25/15 Page 26 of 28

THIS COURT SHOULD GRANT MR. BA HABEAS PETITION AND
ORDER HIS RELEASE.

Nothing stands in the way of this Court ordering Mr. Ba Odah?s release. Entering his
13th year of indefinite detention, Mr. Ba Odah is gravely ill and, if he recovers at all, it will not
likely happen within a year. For those reasons, his continued detention violates the domestic law
of war standards set out in Army Reg. 190-8 and the related law of war constraints on the
government?s authority to detain individuals indefinitely under the AUMF. However
expansively it may read the AUMF, neither the statute nor the humanitarian protections
embodied in the Army Regulation empower the government to continue imprisoning Mr. Ba
Odah in a solitary cell at Guantanamo while he teeters on the precipice of death his body
struggling, but ultimately failing, to properly absorb the liquid nutrients he is being force-fed.

Indeed, reliance on the AUMF to authorize Mr. Ba Odah?s continued detention requires
the government to defend the bizarre proposition that it is lawful to perpetually force-feed Mr.
Ba Odah in order to preserve its ability to continue imprisoning him indefinitely, even though the
government disclaimed its professed need to keep him at Guantanamo years ago by approving
him for transfer. That argument stretches the government's ?necessary and appropriate? use of
force beyond all conceivable limits of the law of war and the Supreme Court?s guidance in
Ha_rmdi and states a case for nothing more than arbitrary detention.

Granting Mr. Ba Odah the relief he seeks to prevent the serious risk of irreversible
impairment and death is in within this Court?s important authority. Harris v. Nelson, 394
US. 286, 291 (1969) (?The scope and ?exibility of the writ?its capacity to reach all manner of
illegal detention . . . have always been emphasized and jealously guarded by courts and
lawmakers? and ?demands that it be administered with the initiative and ?exibility essential to

insure that miscarriages of justice within its reach are surfaced and corrected?). And as the

26

Case Document 273-1 Filed 06/25/15 Page 27 of 28

Supreme Court underscored in Boumediene V. Bush, habeas remedies are adaptable, their
?precise application and scope change depending upon the circumstances.? 553 US. 723,
779-80 (2008) (citations omitted). The extraordinary circumstances presented here call for one
remedy above all Mr. Ba Odah?s immediate release. The ?root principle? of habeas ?is that in
a civilized society, government must always be accountable to the judiciary for a man's
imprisonment: if the imprisonment cannot be shown to conform with the fundamental
requirements of law, the individual is entitled to his immediate release.? Fay v. Noia, 372 US.
391, 402 (1963), overruled in part by Wainright v. Svkes, 433 US. 72 (1977).

This Court should not shy away from ordering such relief. By approving Mr. Ba Odah
for transfer in 2010, the government long ago signaled its approval of that outcome.



For the reasons stated herein, Mr. Ba Odah respectfully requests that this Court reinstate

and his petition for a writ of habeas corpus and issue an order requiring the government to take

every necessary and appropriate step to facilitate his immediate release from Guantanamo.

Dated: June 25, 2015
New York, New York

Omar Farah

Baher Azmy

CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor

New York, NY 10012

212.614.6485

Omar Farah
Omar Farah

 

Attorneys for Petitioner, ariq Ba Odah

27

Case Document 273-1 Filed 06/25/15 Page 28 of 28

CERTIFICATE OF SERVICE
The undersigned hereby certifies that he caused a true and correct copy of the foregoing
Motion for Reinstatement of Petitioner?s Habeas Petition and for Judgment on the Record and

Memorandum of Law in Support on all parties of record through this Court?s ECF system.

Omar Farah
Omar Farah

28