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.