Judge Assesses 75-Lb.|Gitmo Hunger Striker

WASHINGTON (CN) - There is no question that a Guantanamo Bay prisoner whose hunger strike has wasted him down to 75 pounds is gravely ill, but the question raised in federal court Thursday was whether the illness is self-inflicted.

Mohammed Abdullah Mohammed Ba Odah, a Yemeni citizen who was a resident of Saudi Arabia before his imprisonment, has been on a hunger strike for more than eight years.

Having dropped nearly 50 percent of his body weight, Ba Odah resembles images of prisoners from the Holocaust, his attorneys with the Center for Constitutional Rights have said.

At a hearing to reinstate Ba Odah's petition for habeas corpus Thursday, CCR attorney Omar Farah told U.S. District Judge Thomas Hogan that his client's refusal to seek medical treatment stems from a "mistrust" of his doctors.

For Farah, Ba Odah's commitment to his hunger strike is evidence of a mental condition caused by malnutrition.

"This is a unique and unexplained phenomenon at Guantanamo Bay," Farah told the court.

Weighing as much as the average 10 year old in the United States, Ba Odah is, for multiple doctors who have seen him, on par with the extremely low weight a patient might shrink to while living with late-stage cancer or AIDS, Farah noted.

Emphasizing that Guantanamo's prison guards hold immense power over inmates,

Farah told Hogan, "This is an island prison we're discussing."

"They could insert nutrients into Mr. Ba Odah if they wanted to," he added.

Prison officials force-feed Ba Odah more than 2,000 calories a day in liquid supplements through a tube inserted in Ba Odah's nose, but Ba Odah continues to lose weight, Farah said.

Though Farah argued that this suggests evidence of a serious medical condition not directly related to Ba Odah's hunger strike, the government countered that Ba Odah has been purging most of the supplement after he is force-fed and that he tricks prison personnel to avoid the feedings altogether.

This includes pretending to drink the liquid supplement voluntarily, and flushing olive oil and honey he specifically requested down the toilet, according to the government's response to Ba Odah's motion to reinstate his habeas petition.

Because of this, Ronald Wiltsie, who argued for the government, claimed every aspect of Ba Odah's condition comes back to his conscious decision to go on a hunger strike and as a result he is not eligible for release under the Geneva Convention or Army regulations.

Releasing Ba Odah could incentivize other prisoners to undertake similar efforts to secure their releases, threatening the security of the Guantanamo Bay prison, Wiltsie said.

The two sides also debated the meaning of provisions in the Geneva Convention and the Army regulations that govern the release of very sick prisoners.

Farah said Army regulation 190-8 allows for the repatriation of very sick prisoners, and that Ba Odah meets the criteria for release under this statute even though he has not been labeled as a prisoner of war. The Geneva Convention regulations for medical repatriation cover workplace accidents, not people like Ba Odah, and therefore should not be used to justify Ba Odah's continued imprisonment, Farah argued.

Wiltsie disagreed, saying prisoners like Ba Odah with proven ties to al-Qaida or the Taliban are not covered under regulation 190-8. He also said the Geneva Convention regulations do not apply to prisoners who self-inflict their injuries.

He compared Ba Odah to a prisoner who steps on a rusty nail on purpose, refuses medical treatment and then seeks release after losing the use of an arm to tetanus. The Geneva Convention provisions would cover a prisoner who accidentally stepped on the nail and accepted medical treatment, not people like Ba Odah, Wiltsie said.

Ba Odah has been approved for conditional release from the prison since 2010, but has yet to be released because of concerns of instability in Yemen, according to the government's response to Ba Odah's motion to reinstate his habeas petition.

As to the doctors whose opinions Farah cited to establish Ba Odah's serious medical condition, Wiltsie said they cannot be totally trusted because they have no access to the prisoner's medical records. Ba Odah has refused medical treatment, blood work and other tests, despite knowing the treatment is fully available to him, Wiltsie said.

"We are not going to let him die if we can help it," Wiltsie said. "Right now we need his help."

The government suggested Ba Odah could request a mixed medical commission - a panel of three doctors including one representing the prisoner, one representing the government and one neutral party - to examine him, which could facilitate his release.

After the hearing, however, Farah noted that the government typically denies requests for such commissions, suggesting this was just an effort to get Ba Odah to jump through unnecessary administrative hoops.

Hogan did not rule on the motion to reinstate Ba Odah's habeas corpus petition Thursday, and said it is "very difficult" for him to determined who is responsible for Ba Odah's medical condition.

The judge also said he was "distressed" by the inability of Congress and the president to pass legislation or put forward executive orders that would properly handle the inmates at Guantanamo Bay.

Ba Odah withdrew a separate habeas corpus petition in 2007 because he was too weak to help build a defense against the government's allegations, according to his defense motion.

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