All three branches of government, and officials of both parties, are to blame for the lethal injustice of this detainee case.
When I heard about the death of Guantanamo detainee Adnan Latif, found dead on Saturday in his cell after 10 years of isolation without trial, found dead in his cell despite being twice recommended for release during the Bush Administration, found dead in his cell despite never having been charged with a war crime, found dead in his cell after consistently manifesting serious forms of mental illness, found dead in his cell after the rule of law was twisted beyond recognition to prevent his release, I thought of Russian literature. And then I thought of another wretched creature of history, another dead man, a man named Jose Martin Vega.
I thought of literature because, even Russian literature, the realm of Dostoevsky and Chekhov and Tarsis and Solzhenitsyn, never conjured up a world where men were taken overseas by force, held indefinitely without trial, judged not culpable but still imprisoned, left to wallow in mental illness, and then allowed to die or kill themselves in their cell -- all while the legal and political and military mechanisms of the state pondered and debated and dawdled over their fate. The czars and Soviets did some of these things. And they did other things, even more terrible things, under the guise of law and justice. But not this.
And I thought of Vega, an American, a convicted drug trafficker, who hanged himself in his Supermax cell in Florence, Colorado, in the spring of 2010, after years of exhibiting severe mental illness as he passed through the federal prison system. Prison officials there have now been sued for their treatment of Vega, called to account for what his family's attorneys call a "persistent and deliberate indifference" to his condition. No one who makes a difference ever cares about guys like Vega. No one. And today you can say the say thing about Latif -- except no American jury or judge or military tribunal ever found him guilty of anything.
Let's be clear. Latif was no Khalid Sheik Mohammed. The Bush Administration knew this as early as 2004. He went through no terror training, Pentagon officials concluded. They recommended he be released, not once but twice.* Much later, in 2010, a federal trial judge ordered him released from Guantanamo after finding that the government had not proven by even a preponderance of the evidence (never mind "beyond a reasonable doubt") that he was a terrorist. Here's how JURIST's Marjorie Cohn, a law professor, once described that 2010 ruling (the "report" she references being the "interrogation report" offered by the U.S. military as evidence of Latif's terror ties):
In the US District Court for the District of Columbia, Judge Henry Kennedy granted Latif's habeas petition, concluding that it could not "credit the information [in the Report] because there is serious question as to whether the [Report] accurately reflects Latif's words, the incriminating facts in the [Report] are not corroborated, and Latif has presented a plausible alternative story to explain his travel." It troubled Judge Kennedy that, "[n]o other detainee saw Latif at a training camp or in battle. No other detainee told interrogators that he fled from Afghanistan to Pakistan, from Tora Bora or any other location, with Latif. No other type of evidence links Latif to Al Qaeda, the Taliban, a guest house, or a training camp."
Particularly significant to Judge Kennedy was that the "fundamentals [of Latif's story] have remained the same." More than a dozen interrogation summaries and statements contained "[Latif's] adamant denials of any involvement with al Qaida [sic] or the Taliban; his serious head injury from a car accident in Yemen; his inability to pay for the necessary medical treatment; and his expectation and hope that [the charitable worker] would get him free medical care."
Judge Kennedy also reasoned that errors in the report support "an inference that poor translation, sloppy note taking . . . [blacked out] . . . or some combination of those factors resulted in an incorrect summary of Latif's words." The fact that Latif was found in possession of his medical papers when seized, according to the judge, "corroborat[ed]" Latif's "plausible" story.
But Latif wasn't freed. Instead, Judge Kennedy's ruling was reversed on appeal by the D.C. Circuit Court of Appeals in one of the most indefensible (and at first most heavily redacted) terror law rulings since the Twin Towers fell. Two of the three panelists declared that Judge Kennedy had erred by not giving the interrogation report "the presumption of regularity" that the courts traditionally afford to government evidence. To subject such evidence to serious scrutiny in the detainee cases, the D.C. Circuit panel concluded, would mean that all such evidence against the detainees would be subject to a careful balancing of "ordinary evidence." And that, the court ruled, couldn't be tolerated.
The United States Supreme Court, the same court that checked the Bush Administration not once or twice or thrice but on four separate occasions, did not come to Latif's rescue. It did not accept the case to explore whether the intermediate appellate judges had constructed a legal fiction of evidentiary review that rendered meaningless the due process guarantees of the Constitution. Knowing that the appellate review standards in these detainee cases are a complete mess, the Roberts court simply turned its back on the problem. Perhaps this is what Daniel Klaidman meant when he wrote just this week about the Chief Justice not wanting his Court to "overreach."
But it's not just the judicial branch which failed to do justice here. The executive branch also is complicit. The Center for Constitutional Rights, which closely monitors these cases, was quick to note that President Barack Obama, the man who promised to close Guantanamo Bay, the law professor who pledged to bring terror suspects to trial in federal civilian courts, was also responsible for the policies that led to Latif's continued confinement. "President Obama's Justice Department knew he was innocent but appealed a district court order directing his release rather than send him home to Yemen," the CCR said.
Nor is the legislative branch free from blame. As Human Rights Watch points out, just months after Latif finally got his "day in court' before Judge Kennedy, eight years after he arrived at Gitmo, Congress significantly reduced the legal and diplomatic options available to the Obama Administration in its efforts to close Guantanamo Bay. Latif couldn't be transferred to his native Yemen, for example, and couldn't be brought to the United States for a civilian trial. The same lawmakers who backed President Bush up one side and down the other on terror law issues decided, suddenly, cravenly that it was good policy and politics instead to pretend that our Justice Department and our federal judges couldn't handle terror trials.
Blocked by the courts, spurned by the president, scorned by lawmakers, Adnan Latif lived in a place wholly unrecognizable to most Americans, even in fiction; a place where men are turned mad by indifference, where flawed evidence is made material by weaselly judges, and where injustice is done in the name of justice. For generations now, all over the world, people will cite this case when they cite the many ways in which America has lost its moral compass in the treatment of the detainees. And it's a disgrace not just because Latif died the way he did, his due process rights a mockery, but because even after his death nothing much under law, or at Guantanamo, is likely to change.
*Latif also was cleared for release a third time, in 2009, by the Obama Administration's Guantanamo Review Task Force. Under pressure from Congress, however, the White House backed away from the transfer.