Omar Farah
I was aware from the very beginning that the consequences would be bitter. Time has proven that I was right. Nevertheless, I made my decision to continue my hunger strike. Anyone enduring a similar experience will know how necessary it is to keep fighting, despite knowing you are in a losing battle. Why is that so? . . . Because it will prove to your captor that you are not small and he cannot tread on you as he pleases.
—Letter from Tariq Ba Odah, Oct. 4, 2013
Tariq Ba Odah would be a slight man, even if he were willing to eat. His shoulders are barely wide enough to keep his orange prison uniform in place. His wrists are childlike and his hands delicate, veins visible all the way to the ends of his fingers. When his arm is straightened, he can almost touch the tip of his pinky to his thumb around his own bicep. The combination of his raised cheekbones and beard cast a shadow down the side of his face. His eyes and nose are naturally large, though they take on particular prominence now that his weight has fallen under 80 pounds. Tariq’s curly black hair, which he keeps shoulder-length, does little to fill out his profile. The office chairs in the cells in Camp Echo, where Guantánamo prisoners and attorneys typically meet, appear to swallow Tariq up. Sores plague him. The pain in his stomach and back cause him to shift in place moment to moment. All of this gives Tariq the appearance of, as a fellow prisoner put it, a bird about to take flight. But Tariq has been caged at Guantánamo for nearly 13 years, despite being cleared for release by the nation’s top national security agencies. He is 36 years old.
At the Guantánamo prison camps, Tariq is what is known as a “long-term” hunger striker. That euphemism becomes more absurd with each passing year. Tariq has not eaten—not voluntarily at least—since February 2007. As a result, he is force-fed, usually in the morning and again in the evening. Guards remove Tariq from his cell, often six at a time in full riot gear, strap him to a restraint chair, and medical staff force a liquid supplement through his nose and into his stomach. “Waterboarding,” Tariq calls it, both for the obvious torture analogy and because, at times, it has caused him to urinate and vomit.
I traveled to Guantánamo to see Tariq in March 2015. I met with him again the following month. Tariq had recently passed the eighth anniversary of his hunger strike, but he was not in the mood to reflect: “I don’t feel the days anymore.” Tariq doesn’t feel much of anything anymore. “My body gets so numb; no sensation,” he said, rapping his knuckles on the arm of his chair to illustrate the point. Apparently, this is a symptom of starvation. And with military doctors saying Tariq is only 56% of his ideal body weight, there is no doubt he is starving. When Tariq lifted his prison smock, I had to look down. All I managed to write in my legal pad was “does not look like body of human; every bone visible.” Imagine liberation photos of Holocaust survivors and you will have a sense of what I saw. Tariq sat back in his chair and said, “My life is not like it was. This is the hardest I have ever had it.”
These last visits with Tariq were the most recent in a series of meetings that began five years ago. By the time Tariq and I first met face to face in 2010, I had already been his lawyer for two years. Agreeing to introduce himself to me in person was a decision Tariq weighed carefully. Guantánamo has taught him to be leery of leaving his cell. What follows is rarely pleasant—over the years, he has endured more humiliating interrogations than he can remember; when the prison administration rotates him to a new cellblock, typically it is to make his confinement more isolative. Even visits to the prison clinic are coercive; Tariq complains of an array of physical ailments, from a collapsing nostril to bloody stools, but says simple medical assistance is withheld to compel him to abandon his strike. Worse still, in recent years, the prison administration implemented pretextual searches of the prisoners’ genital areas whenever they enter or leave the cellblock. So it was understandable that Tariq consistently declined my meeting requests. Indeed, much of our initial contact was through “refusal” notes—handwritten messages attorneys send to persuade Guantánamo prisoners to attend a scheduled legal meeting.
Sending notes to Tariq became something of a ritual. Once in the screening facility at Camp Echo, I came to expect the guard on duty to tell me that my “detainee has refused.” It happened each time I attempted to meet Tariq. Although I assumed it was futile, I would send a note anyway. Rarely were they more than a few lines, containing only a greeting and enough information to clearly identify myself. That precaution is essential at Guantánamo. Among the more common complaints I hear there is that guards withhold (or do not know themselves) the reason for moving a prisoner. That a “meeting” has been scheduled offers little comfort; historically, meetings were just as likely to be an interrogation as a visit from an attorney or family telephone call. More than one client has told me not to take a refusal personally: “I wasn’t sure it was really you,” they tell me.
Whatever the practical obstacles, it must still seem odd to those unfamiliar with Guantánamo that someone enduring what amounts to an indefinite sentence without ever being charged or tried would refuse the assistance of counsel. But Tariq has seen well-meaning lawyers come and go at Guantánamo for a decade, while little has changed for him. As he observes, only the cells change, becoming rustier and more decrepit by the year—a visual reminder of the time that has elapsed.
As the prison enters its 14th year of operation, all three branches of the U.S. government must share blame for the Guantánamo impasse. Recent transfers notwithstanding, the judiciary, Congress, and the White House together have made it wildly difficult for Tariq and the remaining Guantánamo prisoners to regain their freedom.
In June 2008, shortly before I formally began representing Tariq, the Supreme Court decided Boumediene v. Bush, ruling that the Constitution guaranteed all Guantánamo prisoners a “meaningful opportunity” to challenge the legality of their detention in court. The promise of Boumediene was a chance to begin uncloaking one of the defining human rights violations of our time—a system of interminable detention punctuated by, among other horrors, solitary confinement, sexual humiliation, and the denigration of Islamic religious mores. Moreover, by virtue of our access to the prisoners and classified government documents, we knew firsthand what so many suspected, that the vast majority of men at Guantánamo were imprisoned on the basis of shoddy intelligence, false identifications, and compelled confessions. Lawyers for the men at Guantánamo could not help but be excited—and indignant. What else does one feel arguing, as I have for example, on behalf of a man whose detention is based on photographic identifications by just three other Guantánamo prisoners, two of whom say they were tortured, and the other the government itself diagnosed as mentally ill? Stories like this are legion among the Guantánamo habeas bar. If they seem apocryphal, it is only because the government has succeeded in keeping so much Guantánamo litigation shrouded in secrecy.
From behind closed doors, however, the lower courts performed their judicial role as fairly as could be expected in cases where the specter of 9/11 looms. In fact, the courts initially ruled in favor of Guantánamo prisoners, and against the government, with remarkable frequency. In the months following Boumediene, Guantánamo prisoners enjoyed a nearly 75% victory rate.1
Already by that time, Tariq had been on his current hunger strike for two years. Looking back, he adopted a purposeful indifference to the news swirling around the camps of habeas victories and losses. Though Tariq sympathized with fellow prisoners whose hopes were buoyed by the prospect of judicial relief, the disappointment that followed came as no surprise to him. With me, he has been less patient, at times chiding me for indulging the notion that a U.S. court might be of some assistance to him, a poor, Yemeni citizen accused of association with Al Qaeda and the Taliban. To make his point, Tariq has gestured to the lock on the cell door where we meet and said, “The men who brought me here on the first day, those are the only ones with the power to let me out when it’s my last.”
There is wisdom in Tariq’s outlook. Even before the post-Boumediene celebration was over, the U.S. Court of Appeals for the D.C. Circuit began revealing its contempt for what the Supreme Court had done. And by 2011, just three years later, it had already rendered meaningless the high court’s admonition that all prisoners be afforded a “meaningful opportunity” to challenge the legality of their detention. Prevailing in a Guantánamo habeas case is virtually impossible, no matter how vigorous the prisoner’s defense or poorly sourced the inculpatory evidence. By now it is old news, but you can imagine Tariq’s scorn at hearing, for example, that mere hearsay of a prisoner’s travel along a well-worn route between Afghanistan and Pakistan can be persuasive evidence of his alleged association with Al Qaeda or the Taliban;2 or that putting the government to the modest standard of “preponderance of the evidence,” a standard used in ordinary civil cases, and not where individual liberty is at stake, spurred the appellate court to opine, unsolicited, whether the significantly lower “some evidence” standard would not be more appropriate.3 What that would mean, of course, is that the government would win all of its Guantánamo cases before it ever entered the courtroom.
The D.C. Circuit tipped the scales still further though, ruling that the district courts sitting below it must presume that the government’s inculpatory evidence is accurate.4 My Guantánamo clients see a method to that madness: surely one way to cure “evidence” obtained during coercive interrogations in the dark, early days of Guantánamo is to simply whitewash it by judicial fiat. For this reason, Judge Tatel’s observation that some colleagues on the D.C. Circuit were simply “calling the game in the government’s favor” was a refreshingly candid rebuke.5
For its part, the Supreme Court has refused to reenter the fray since Boumediene, declining to hear the final appeals of Guantánamo prisoners who petition for redress. Setting aside the government’s propensity for mooting cases by transferring detainees when those cases seem not to be going in its favor and some (cautious) optimism that a court might find that the end of hostilities in Afghanistan erodes the legal basis on which nearly all Guantánamo detentions rest, judicial avenues to achieve the release of Tariq and other remaining Guantánamo prisoners are essentially closed.
Tariq is as much a student of the legislative branch as he is of the judiciary. He understands well that, in many ways, Guantánamo is a symbol, albeit one imbued with tremendous power in a U.S. political climate where loudly proclaiming counterterrorism tropes, however cynical, generates valuable political currency. When it comes to Guantánamo, Tariq says the rhetoric on Capitol Hill always sounds the same. So he did not raise an eyebrow when Congress began going out of its way to express hostility toward plans to close Guantánamo through each annual National Defense Authorization Act (NDAA).
As of fiscal year 2011, Congress began imposing onerous restrictions on the use of Defense Department funds for the transfer of Guantánamo prisoners off the island. The law initially prohibited transfers unless the secretary of defense determined that a country set to receive a released prisoner met certain rigid certification criteria. Among them, the receiving government had to agree to take action “to ensure” that the detainee would not threaten the United States or its allies in the future.6 Whatever might reasonably constitute a “threat,” no state can guarantee that any future action will or will not occur. Undoubtedly that was the point: the law was drafted to discourage transfers and to keep the prison at Guantánamo open.
The two subsequent NDAAs renewed those restrictions. As a result, short of bold presidential action, Tariq and his fellow prisoners stood no chance of being released under the legislative framework extant at the time. Transfers ground almost to a halt between 2011, when Congress first turned to the NDAA to block Guantánamo’s closure, and 2013. The 2014 and 2015 NDAA reauthorizations relaxed some preexisting restrictions, but GOP fearmongering following the Charlie Hebdo attack, including calls for a prohibition on all releases, illustrates just how perilous the legislative landscape is for Guantánamo prisoners. Tariq would be forgiven for mistaking today’s arguments in favor of Guantánamo for the talking points parroted after the attempted underwear-bomber attack on Christmas Day 2010. That time around, President Obama’s reflex was to summarily ban all transfers to Yemen, including of detainees whom his administration had cleared for release, because the attacker was linked to a Yemeni-based terrorist organization, Al Qaeda in the Arabian Peninsula (AQAP). Inflammatory rhetoric, so common to the discourse around U.S. national security, tends to have dire consequences for Guantánamo prisoners.
Congressional obstructionism is intensifying as President Obama’s time in the White House draws to a close. My March 2015 trip coincided with Senator Tom Cotton’s media tour, orchestrated to lend credit to his arguments for keeping the prison open—though one would have thought the freshman senator would have visited Guantánamo before his “rot in hell” stunt at the Senate Armed Services Committee hearing. My next visit followed the launch of Marco Rubio’s presidential bid during which he, too, called for Guantánamo’s expansion and farcically declared the six prisoners recently freed to Uruguay, each unanimously cleared by multiple national security agencies, “a danger . . . for our country and the world.” Meanwhile, Senators Ayotte, McCain, and others are seizing on ISIL’s bloodthirst to ram through legislation intended to halt all Guantánamo releases indefinitely. Yes, fearmongering around Guantánamo is old news, but the stakes remain high—higher now than ever. President Obama now says he failed to close Guantánamo only because of politics, rhetoric, and fear. It is a haunting admission considering the suffering Tariq so easily could have been spared.
Tariq reserves his harshest criticism for the president. To him, the Obama administration is consistent only in that it never does what it says it will. Upon taking office, President Obama vowed not only to close Guantánamo within a year, but also to ensure that living standards for the prisoners were compliant with the Geneva Conventions. For Tariq, however, 2009 is memorable only for a rapid deterioration in the conditions of his confinement.
During a meeting in March 2012, Tariq scoffed at praise President Obama receives for having abandoned the wanton cruelty now synonymous with Bush-era detention practices. Tariq had just finished recounting his experience being lifted from a restraint chair after a feeding session and then slammed to the floor with such force that his chin split. Discharged from the camp clinic and on his way back to his cell, a senior officer counseled Tariq that “all this could be avoided if you just ended your strike.” Tariq favors humor whenever he tells similarly shocking accounts of his abuse. This time he quipped: “Did you vote for Obama? Personally, I miss Bush.”
In some objectively measurable ways, Tariq’s detention was more tolerable before President Obama took office. He says it was not until May 2009 that he was transferred to Guantánamo’s notorious Camp 5, where prisoners are held in isolation cells. Almost without interruption, Tariq has been committed to solitary confinement ever since. “Days go by and I do not speak to a soul,” Tariq said during a March 2012 meeting. And the little recreation time he is allowed—sometimes just two hours per day—is often scheduled during hours not customarily devoted to physical fitness. “As I have already mentioned to you,” Tariq wrote to me in a letter, “I’ve been spending 24 hours a day inside the cell for a long period of time, and that is due to the myriad problems I have been facing. The prison officials scheduled my two-hour recreational walk for three o’clock in the morning. The purpose of such scheduling is to increase the pressure on me. At that hour, I will still be on my own, even in the rec area.” In response, Tariq has also gone on “no wash” protests, once refusing to leave his cell, shower, or cut his nails for four months. “I looked like I crawled out of a grave. Finally the military asked me to stop and gave me back my full rec privileges.” The sad reality is that, whether alone or not, Tariq is often too weak to take advantage of the little sunlight he is permitted.
Like most at Guantánamo, Tariq is tormented by the rational fear that, after more than a decade, his cell may one day become his coffin. Nine Guantánamo prisoners have already met that fate.7 The failing of the judiciary and Congress notwithstanding, the president alone has the power to avert such a disaster. From November 2014 through January 2015—in just three months—he freed 27 men. That was more than in the prior three years combined. 8 The White House wields remarkable power to effect transfers when it chooses to do so.
The White House, however, often demonstrates little interest in marshaling that power. From January 2011 through April 2012, not a single prisoner left Guantánamo alive—the longest period without a transfer since the prison first opened. President Obama has instead allowed opponents of Guantánamo’s closure to dominate the discourse almost from the moment he took office. This is evident, for example, whenever I explain to audiences that Tariq was cleared for release by President Obama’s Guantanamo Review Task Force approximately five years ago. Yet many are still unaware that this means every prominent national security agency in the U.S. government, including the Office of the Director of National Intelligence, the Joint Chiefs of Staff, and Departments of Defense, Homeland Security, Justice, and State agrees unanimously that Tariq ought to be freed. If the White House, rather than advocates for the prisoners, had made that point forcefully back in 2009 and 2010, perhaps Tariq’s fate would have played out differently.
There is no shortage of blame to go around for Guantánamo’s continued operation. In Tariq’s view, the courts, lawmakers, and the president are all part of the same system that keeps him locked up and far from his family. I am hard-pressed to disagree. But, surely, as the person with ultimate power over Tariq’s fate, President Obama bears unique responsibility for the fact that, as of this writing, Tariq remains in isolation at Guantánamo, having passed the eighth anniversary of his hunger strike, bracing himself for his next feeding session.
My hunger strike has become my shield which . . . protect[s] me from the conspiracies and humiliation. . . . The hunger strike has nourished in me the sense of resistance and reminded me that the unjust cannot manipulate me as he pleases. He will not succeed in controlling me or controlling my destiny, for I am the one who controls it.
—Letter from Tariq Ba Odah, Oct. 4, 2013
Though Tariq does not despair, he is under no illusions about the Gordian knot ensnaring him at Guantánamo. No matter the occupant of the Oval Office, the partisan makeup of Congress, the base commander presiding, or the guards on duty, his detention is a cruel game the outcome of which is predetermined: the prisoners lose until someone more powerful spares them. In the interim, they pay a heavy price. As Tariq puts it: “Freedom should be much more precious for the human being than all the desires on earth.” Detention, therefore, is brutal; indefinite detention, mercilessly so.
At Guantánamo, indefinite detention is compounded by the indignity inherent in a system that encourages prisoners’ participation, only to mock them. For Tariq, why else create elaborate administrative and judicial processes—Combatant Status Review Tribunals (CSRTs), Administrative Review Boards (ARBs), Periodic Review Boards (PRBs), Guantanamo Review Task Force assessments, and habeas corpus hearings—that after 13 years still have so little to show for themselves? Tariq, like so many others at Guantánamo, sees it as little more than the elevation of process over justice. The purpose, Tariq says, is to pacify a prison population enduring unspeakable suffering. This is why he easily draws comparisons to the institution of slavery. “I was arrested on the second day of Eid Al-Fitr . . . ,” he writes, “then sold into the United States’ 21st century slavery market. As far as I am concerned, all of this pressure, humiliation, limitless injustice have been solely aimed at breaking me and breaking my brothers so that they could manipulate us . . . and plant in us despair and mentally enslave us just like they have physically enslaved those before us.”
Redemption for Tariq is born of protest, one organized around the principle of nonparticipation. Tariq refused to submit to a CSRT—the sham tribunal established by the Bush administration to determine who, among the hundreds of men then at Guantánamo, were “enemy combatants.” Tariq was similarly unwilling (and, in any event, physically unfit) to litigate his habeas petition. And as I recounted, from 2008 until 2010, he would not even sit down with his own lawyer. It goes without saying, however, that Tariq’s refusal to eat is the most uncompromising form of resistance through non-participation. “I tell them again and again that I don’t want any food from them . . . , I just don’t want it. All I want is for them leave us alone, lingering in these cells. They want me to eat, but first I have to be subjected to humiliation. . . . The provocation is never-ending.” Therefore, Tariq says his hunger strike will never end. “My method of delivering my message is through hunger strike. You can cut me to pieces, but I will not break it. I will stop on one of two conditions: I die, or I am freed and allowed to return to my family.”
Tariq’s discipline is humbling. His typical day is “split between praying, reading Qur’an, . . . and contemplating memories of the past.” Sometimes he will practice walking in his cell for exercise, “three steps forward and three backwards.” The monotony is interrupted only when guards arrive to force-feed him. Tariq views these as moments when his will is tested against the guards. Too often, discussion of force-feeding fails to go beyond the shocking physical details. That is understandable. According to Tariq, violently force-feeding prisoners has been the Department of Defense’s preferred approach to breaking strikes. Tariq’s descriptions of feeding sessions in 2006 and 2007 are grisly: “I was tortured with the restraining chair when they were filling my belly with two packs of Ensure. The doctors would introduce a 14 size tube with a metal end inside my nose to reach my stomach and sometimes my lungs and when they would take it out it would be filled with blood.” Yet, for Tariq, hunger striking is an expression of his vitality. The physical pain, therefore, pales in comparison to the psychological trauma of having the very jailors responsible for his ordeal overbear his will in such an intimate way.
Though powerless to prevent feedings, Tariq nonetheless takes pride in his fortitude. He tells me he cannot help but laugh at the burly guards who periodically enter his cell. In just the moments its takes to shackle him for a move, Tariq says they grow claustrophobic. He teases them, “As strong as you are, you can’t even handle a visit and yet I live here.”
More importantly, Tariq believes he has accomplished a rare feat that, while a far cry from actual freedom, is profoundly liberating. As in any detention setting, much of the prison administration’s control at Guantánamo comes from providing (and depriving) prisoners of “comfort items”—books, recreational time, communal living assignments, anything that makes imprisonment more tolerable. At times, the prison administration has observed few limits in what it is willing to take from prisoners. Tariq, for example, spent from 2004 through the middle of 2005 with nothing in his cell but a “paper-thin mattress, shorts and vest.” Comfort items breed dependency, and in Tariq’s experience, the very favor prisoners come to value most is the one they will be deprived of in order to break their will. As it is, Tariq has almost no privileges. The Department of Defense largely understands his protest as mere noncompliance. As a result, Tariq is punished essentially in perpetuity. His access to sunlight, human contact, books, and just about everything else is severely restricted.
Through his hunger strike, however, Tariq has removed the ultimate mechanism of leverage. In an environment as hostile as Guantánamo, for Tariq, even the primal drive to eat is a vulnerability to be conquered. He explained in a series of letters in 2013: “My body has become frail and weak, but spiritually I feel that I am a thousand times stronger than I was before. It has been seven years since I have tasted food.” He wrote later that “even the pungent smell that used to stay on my fingers after eating” is a lost memory. “I have prevailed over man’s innate weakness towards food and drink. I feel honored and proud because I sacrificed food and drink for the sake of my freedom. . . .” By his own definition, Tariq has prevailed, and yet that victory has surely taken its toll.
During one of our meetings in 2014, Tariq looked particularly weary. His physical deterioration is the predictable result of his protest, but it is no less unsettling. We talked for a little while about how he is holding up. I try not to dwell on the subject, however. Tariq chose this course with eyes open; it is arduous enough without worrisome questioning. In any case, he knows all too well how he has been transformed. Other than the occasional wry smile, his face recalls a death mask more than a man in his thirties. As Tariq writes, “One day, I looked at my face in the mirror and was shocked; I would say more saddened. I felt the mirror was looking at me [and] asking if that was really me. . . .” During this particular meeting, Tariq shared more than he usually does about how it feels to be bed-ridden in a filthy cell, carried away by force to be fed with tubes. He wondered openly how much more he will have to endure, but soon pivoted: “I am fine; deep inside, I feel fine. If I accepted all of this without protest, that would destroy me. . . .”
I had heard variations on that reassuring theme before and, yet, witnessing Tariq persevere through this advanced stage of his hunger strike, I found myself fixating on his physical condition. His eyes were more sunken than usual, his hands shook more noticeably, and it seemed he could have slid his ankle out of the shackle attached to the floor if he had tried.
After our meeting, back in the Guantánamo housing facility, I returned to some of Tariq’s letters from spring 2013 to remind myself why Guantánamo provokes in him such fierce resistance. There are many clues in the way Tariq describes his life before Guantánamo:
1978 is my year of birth; but my real birth has not come yet. I have been waiting for it for 11 years. My place of birth is the Shabwah district of Yemen. I left Shabwah when I was one year old and spent my entire life in Jeddah, Saudi Arabia. I am the middle child. My mother and father were kind parents in a simple family untouched by typical familial problems. All that my father cared about was how to ensure happy and peaceful living for his family by providing us with education. Regarding my loving mother, she was and remains smiling all the time. I do not recall a day when she was harsh to me. We lived a wonderful family life, but all this changed since my capture . . .
My 11 years of time spent in solitary confinement is trying to kill the 11 years of childhood I spent in Wadi Jamilah in Saudi Arabia. Now, I live on just the imagination of my wonderful childhood . . .
At the moment when I am released, I would pray and kneel twice to Allah for the blessing of freedom, then go to my mother and hug her. As for my father, my chance to serve him is now gone because he passed away.
Tariq’s suffering is as unnecessary as it is unforgivable. He was cleared for release approximately five years ago. No one disputes at this point whether he ought to be freed. And it is possible that those men Tariq describes, the ones who brought him to Guantánamo on the first day, will, at long last, come to release him. Perhaps even one day soon. In the meantime, Tariq has taken to scrawling the word “homesick” on the walls of his cell.
1 Carol Rosenberg, U.S. Has Now Lost 75% of Its Guantánamo Habeas Cases, Miami Herald (July 8, 2010), http://www.mcclatchydc.com/2010/07/08/97211/federal-judge-order-release-of.html.
2 Al Odah v. United States, 611 F.3d 8, 14 (D.C. Cir. 2010).
3 See Al-Adahi v. Obama, 613 F.3d 1102, 1104 (D.C. Cir. 2010); Esmail v. Obama, 639 F.3d 1075, 1078 (D.C. Cir. 2011).
4 Latif v. Obama, 677 F.3d 1175, 1180–85 (D.C. Cir. 2011).
5 Id. at 1206 (Tatel, J., dissenting).
6 See National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112–81, § 1028(b), 125 Stat. 1298 (2011).
7 Carol Rosenberg, Dead Guantánamo Detainee Won, then Lost Court-Ordered Release, Miami Herald (Sept. 11, 2012), http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article1942602.html.
8 Ken Gude, Closing Gitmo: Obama Must Confront Congress, Newsweek (Jan. 22, 2015), http://www.newsweek.com/closing-gitmo-obama-must-confront-congress-301286.