September 24, 2012

On September 8, one of my nightmares came true. Adnan Farhan Abdul Latif, a client of mine who had been held at the Guantanamo Bay detention facility in Cuba for more than 10 years, died alone in his cell. His tragic death will surely be greeted with a shrug by some, but it should prompt the US to reconsider its decision to continue the operation of our infamous offshore prison camp. 
Adnan was brought to Guantanamo in January 2002 on suspicion of being associated in some manner with enemy forces in Afghanistan. It is hard to say exactly what the US military thought Adnan had done. Over the years, the government made allegations and then abandoned them.

At one point, the government accused Adnan of "associating" with Al Qaida. But the military never produced any credible evidence to sustain the charge, so the government dropped it. More recently, the government argued that it was lawful to detain Adnan for 10 years or more at Guantanamo because it believed he had served as a Taliban foot soldier for a few weeks before the US began bombing Afghanistan. But even this diminished allegation could not be proved, as US District Judge, Henry H. Kennedy Jr., determined in 2010.

Adnan’s story was that he went to Afghanistan in late 2001 to receive charitable medical treatment for a head injury from an auto accident he had suffered in Yemen, several years earlier. He had hospital records to corroborate his story. In contrast, the government produced a single, error-ridden, hearsay report, drafted by an unnamed government agent in the fog of war, stating that Adnan had "confessed" to working with the Taliban. Kennedy found the document unreliable and ordered the military to release him.

The judge’s decision shocked few. Indeed, the grimmest fact about Adnan’s death is that since early in his detention, no one really thought he should be at Guantanamo at all. During the George W. Bush administration, the military recommended Adnan for transfer at least three times — in 2004, 2006 and 2008.

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Then, when President Barack Obama came to office, a task force reviewed all the evidence in Adnan’s case and again recommended him for repatriation to Yemen in 2009. We lawyers who represented him were not allowed to reveal that information to the public until now. It was protected as a state secret until after Adnan’s death.

The real shock was that Obama chose to appeal the district court’s order to release a prisoner whom his own task force had (privately) already designated for transfer home. Why the appeal? To all appearances, the new administration, like the old one, was chiefly concerned with limiting the power of the courts in wartime. The president’s challenge went to the Court of Appeals for the D.C. Circuit, which had been openly hostile to claims from war on terror detainees and which had been reversed in Guantanamo cases three times in the last decade by the Supreme Court.

The result was that last year, the appeals court, in a widely criticised 2-1 ruling, vacated Kennedy’s order and remanded the case for a do-over. The dissenting judge criticised the majority for "moving the goal posts" in the government’s favour. This June, the Supreme Court refused to review that ruling. Eight years after we first filed a habeas petition on Adnan’s behalf, we were back to square one. And that may have been more than Adnan could bear. We don’t yet know how Adnan died, but I wouldn’t be surprised to learn it was by his own hand. He had sought release from Guantanamo by attempting suicide several times before. It is also possible his death was caused by the cumulative effect of a decade’s worth of intermittent hunger strikes, which were his only way to protest the injustice of his indefinite detention and the harshness of his treatment at Guantanamo. Either way, his death was caused by his detention.

During one visit, I found Adnan covered in bruises, with one eye swollen shut. Barely able to speak, he explained that a few days earlier an "immediate response force" team — six men in body armour, wielding shields and batons — had forcibly taken him from his cell. His offense? He had stepped over a line, painted on the floor of his cell, while his lunch was being passed through the food slot of his door. Another time, after finding Adnan lying on the floor of the interview cell, emaciated and looking near-dead, I asked a judge to order the military to turn over Adnan’s medical records to me and my colleagues. I believed he was either desperately ill or suicidal and that either way the treatment he was receiving was inadequate.

The government responded dismissively to my requests. Adnan was physically and psychologically fit, it claimed, notwithstanding an attempt, a month earlier, to hang himself. It was just a "suicidal gesture," officials assured us, not a real effort to kill himself. Perhaps. It is high time to end the Guantanamo experiment.

Obama was right to order the prison closed on his second day in office. But he was wrong to cave in to pressure from political opportunists in the Congress, who threw roadblocks in his way. Guantanamo should be shuttered because it is unjust and un-American. The longer it stays open, the more men will die there, to the shame of all Americans.

— Los Angeles Times

Marc Falkoff is an associate professor at Northern Illinois University College of Law. He had been one of Adnan Latif’s habeas lawyers since 2004.


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