A Death at Guantanamo

All three branches of government, and officials of both parties, are to blame for the lethal injustice of this detainee case.

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Reuters

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.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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