Intelligence experts under Bush and Obama insisted Adnan Latif should be released. America kept him caged anyway.
If the unjust incarceration of Adnan Latif inspired in conservatives even a fraction of the concern that they had for Scooter Libby; if liberals felt for him a small part of the outrage that they muster on Sandra Fluke's behalf; if President Bush had been a bit more careful in who he detained, or if President Obama had closed just the portion of Guantanamo Bay holding prisoners cleared by American intelligence agencies for release; if the federal judiciary were slightly less inclined to defer to dubious government claims in habeas cases; or if Congress were less derelict in its duty to preserve and protect the Constitution -- if any of those things were true, the Yemeni man might still be alive, and his death, a possible suicide, wouldn't disgrace us.
But he is dead.
Held for years on end without trial in a cage thousands of miles from home, he endured interrogations, indignities, and depression long enough to be cleared for release. The U.S. government kept him locked up for years longer. Despairing, he died this week, and even in death, his treatment evokes less outrage in Americans than the week's most controversial tweets.
This despite the fact that there are numerous reasonable doubts about his guilt.
He was captured by Pakistani security forces near the Afghan border in late 2001. On most matters, the average American is disinclined to treat Pakistani security forces as arbiters of truth. Many believe they helped hide Osama bin Laden for years. Yet most Americans presume the guilt of Guantanamo Bay inmates accused of belonging to the Taliban or al-Qaeda in large part because Pakistani sources intimated as much when turning them over. When Latif was turned over, the U.S. was paying the Pakistanis for every Arab "fighter" that they found.
How many bounties were paid for innocents?
The Pakistanis turned over prisoners scores at a time, often after conducting their own interrogations. Information was passed on to the Americans to be included in intake reports. "For the Arabic men in question, the interrogation would have required translation between Arabic and Urdu or Pashto (for the interrogation itself), and then translation from that into English (to go into the CIA report)," Marcy Wheeler explains at Emptywheel, where she's followed this case. "There are all sorts of reason why you shouldn't indefinitely detain a man based on such a report!" But information in that intake report got Latif locked away for a decade.
According to the intake report, Latif admitted to fighting with the Taliban. But he denied ever saying so, he insisted he never fought, and his lawyers pointed out other factual inaccuracies in the report persuasively enough that every judge to adjudicate the matter has acknowledged them. He insisted he was traveling to seek treatment for a head injury sustained in an automobile accident. The car accident is corroborated; Yemen's Ministry of Public Health verifies that he was a charity case, and that they sent him to seek further treatment outside the country; and when he was picked up by the Pakistanis he was in possession of his medical records, a U.S. court eventually found.
Suddenly we've skipped ahead many years, but let us not forget that this man spent them incarcerated in solitary or surrounded by al-Qaeda terrorists, unable to contact his family or friends, suffering medically, and without any apparent prospect of challenging his release. Let's count the years, cognizant of how long they must seem inside an island prison in a foreign land.
In August 2008, Marc Falkoff visited Guantanamo Bay, where he met Latif in an interview cell. He was lying on the floor, weak and emaciated. The attorney would try to secure for the detainee a mattress, a pillow, and his medical records. These small comforts were denied the prisoner. His mental state deteriorated as he did everything he could to protest his extrajudicial incarceration: hunger strikes, smearing himself with feces, throwing urine at guards, more consultations with legal counsel.
Despite his disruptive behavior, he was designated for transfer out of Guantanamo Bay by the Bush Administration. He was still incarcerated there when President Obama took office in January 2009.
Hope! Change! A promise to close Gitmo!
The Obama Administration assembled a task force of career intelligence professionals to assess the inmates at Guantanamo Bay. In order to be cleared for release, an inmate had to be vetted, recommended for transfer, and secure a unanimous vote by all intelligence agencies. Latif met that standard. Two successive administrations had concluded he didn't belong at Gitmo.
Imagine his mental state in that moment when he was cleared for release by Obama. But they didn't release him. They kept him locked up instead. "A great many Yemenis remain at Guantanamo not because of any judgment that they individually pose some great menace but because the situation of Yemen itself makes repatriations so difficult; to release detainees there is really to lose any possibility of control over their later activity," Benjamin Wittes explains at Lawfare, another blog that has covered his case. "Latif and many other Yemenis remained at Guantanamo because the administration determined that it was lawful to hold them and that, if released, some unacceptable percentage of them would do something horrible."
As Wittes goes on to note, "I don't know of anyone who really thinks that percentage was likely to have included Latif -- a guy whose mental state was fragile, who had suffered a head injury, and who seems to have had a long history of self-injury and suicide attempts. I suspect that had Congress not eventually made it virtually impossible to transfer people from Guantanamo, Latif would not have remained in custody until his presumably self-inflicted death." This is an ugly pattern that reasserts itself again and again in the war on terrorism. We kill people in drone strikes and detain them without charges or trial because, though doing so guarantees grave injustices will be perpetrated against many innocent foreigners, there is a theoretical chance that a given action might make Americans infinitesimally less likely to be killed in a future terrorist attack. Our actions are cowardly, immoral, and epitomize the relativism war on terror hawks claim to abhor.
Yet they champion it.
In 2010, Judge Henry Kennedy looked at the Obama Administration's actions and decided that it was holding Latif unjustly. Kennedy ordered Latif's release, at which time President Obama and Eric Holder, who had sworn they'd close Gitmo, appealed in order to continue incarcerating one of the detainees that their own task force had already recommended for release. Sadly, they won on appeal, with Judge Janice Rodgers Brown writing the statist majority opinion in a 2-1 decision that, for reasons too complicated to get into here, has worrying implications for all of our habeas rights.
The Supreme Court declined to hear the case, putting Latif in this situation: No one had ever proved his guilt, multiple groups of experts had recommended his release, and yet he had no prospect of securing it, for there was no one left to whom he could appeal. If he committed suicide, can you blame him?
There are a lot more details about the legal arguments at issue in this case. For a very deep dive, work through all of the links at the bottom of this post. But you're bound to emerge unsatisfied, for another perverse part of the story is the degree to which the legal reasoning used in cases that may one day impact the ability of an American citizen to challenge his or her indefinite detention are shrouded in secrecy. Here is an image, via Wheeler, from one of the opinions:
Dahlia Lithwick captured the absurdity of it all at Slate:
I urge you to stop for a moment and look at the decision itself, so heavily redacted that page after page is blacked out completely. The court, in evaluating a secret report on Latif, can tell us very little about the report and thus the whole opinion becomes an exercise in advanced Kafka: The dissent, for instance notes that "As this court acknowledges, 'the [district] court cited problems with the report itself including [REDACTED]. ... And according to the report there is too high a [REDACTED] in the report for it to have resulted from [REDACTED].'"This is your war on terror.
Or as Senator Obama once put it:
... Some have been detained who have no connection to terror whatsoever. We've already had reports from the CIA and various generals over the last few years saying that many of the detainees at Guantanamo shouldn't have been there -- as one U.S. commander of Guantanamo told the Wall Street Journal, "Sometimes, we just didn't get the right folks." And we all know about the recent case of the Canadian man who was suspected of terrorist connections, detained in New York, sent to Syria, and tortured, only to find out later that it was all a case of mistaken identity and poor information.What happened to that guy?
In the future, people like this may never have a chance to prove their innocence. They may remain locked away forever. And the sad part about all of this is that this betrayal of American values is unnecessary.