The Fear of Too Much Justice: Tariq Ba Odah and the Department of Defense

There are new developments in the shameful saga of Tariq Ba Odah. I wrote about Tariq in an earlier column. He has been on a hunger strike at Guantanamo for 8 ½ years. According to the United States government, he now weighs 75 pounds, which is slightly more than half his normal body weight. Medical experts say he has no more weight to lose and that his body has begun to cannibalize itself to survive, slowly consuming his organs.

Tariq is represented by lawyers at the Center for Constitutional Rights (CCR), who have sought his release both on humanitarian grounds, and because the laws of war, which codify humanitarian principles, do not authorize the continued detention of a prisoner who has become so infirm that he cannot cause harm. Though some may wish it otherwise, war is not a lawless affair, and imprisoning someone who poses no threat is merely the gratuitous infliction of suffering.

If there is any justification for our much maligned island prison, it is that it advances the cause of national security by keeping a small number of people under wraps. I do not remotely think this is a sufficient justification for Guantanamo, but it is the only one the United States has. Yet the justification collapses in Tariq’s case, and his continued detention is morally and legally illegitimate.

This is sufficient to resolve the question, and further dithering merely compounds the wrong. But additional facts make the travesty still more acute: Since 2009, Tariq has been cleared for release. It was then that every federal agency with a stake in national security unanimously agreed he could be released from Guantanamo, a position from which they have not retreated.

When I wrote my last column, I noted that the Obama Administration had thus far opposed Tariq’s release. After my column appeared, the New York Times picked up the story and ran an editorial about Tariq, likewise calling for his release. After the Times editorial, the government asked for additional time to respond to CCR’s papers. And last Friday we learned that Ba Odah’s situation has divided the Obama Administration. Charles Savage reported that the State Department favors his release, but the Defense Department opposes it.

According to the Times, the Defense Department fears for the precedent it might set. After all, if the United States were to release this 75-pound, starving prisoner, it might have to release every prisoner who starved himself to a shadow, and who knows where that might lead? Other prisoners might put themselves through the torture that Tariq has endured and submit to being force-fed every day, twice a day, for more than eight years, simply so they could pass within sight of death and thereby secure their release.

This position is breathtaking in its moral bankruptcy. To begin with, note that DoD does not challenge Tariq’s claim so much as it fears other claims that do not yet exist. But that’s not how the law works. The government cannot defeat a valid legal claim by hypothesizing that other valid claims might one day surface. Certainly, the government might rely on the policy implications to resolve ambiguous claims one way or another, but it cannot deny a valid claim merely because it fears consequences that do not yet exist.

And even if other claims were already known—even if Guantanamo were filled to overflowing with starving, 75-pound prisoners—that would not justify DoD’s position. Justice Brennan once described the fear that a single ruling might correct multiple wrongs as “a fear of too much justice.” One might have thought the Obama Administration would not be in the business of encouraging this particular dread.

In any case, there seems very little risk that releasing Ba Odah will trigger a tsunami of unrestrained compliance with the law. When the next starving prisoner presented his chit for release, the Obama Administration could always say the decision in Tariq’s case applied only to those who had already been cleared. In fact, we could announce a new rule, one befitting the world’s only super power: So long as every federal agency involved in national security agreed when you were hale and hearty that you could be transferred off the island, we will release you once you are wasting away. That seems about right.

Anyone who supposes the Obama Administration—at least in the particulars of its counter-terror policy—is morally superior to the Bush Administration should reflect on DoD’s position. Tariq Ba Odah should not be at Guantanamo.