The tragic case of Adnan Farhan Abdul Latif hit a dead end when the U.S. Supreme Court issued an order refusing to hear his case last week. Latif, a Yemeni man, has been imprisoned at Guantánamo Bay since January 2002, after being detained while traveling to seek medical treatment.
Latif had suffered serious head injuries as the result of a car accident in 1994, and the Yemeni government paid for him to receive treatment in Jordan at that time. But his medical problems persisted, and in 1999 Yemen's Ministry of Public Health recommended that Latif undergo tests, therapy and surgical procedures at his own expense. Unable to afford it, Latif said he left Yemen in 2001 with the help of a charitable worker to seek free medical treatment in Pakistan. When he was picked up in Afghanistan -- on his way to Pakistan -- and transferred to US custody in December 2001, Latif had his medical records with him.
After a kangaroo court proceeding, a Combatant Status Review Tribunal at Guantánamo declared Latif to be an "enemy combatant." He was not allowed to attend the hearing, nor was he permitted to see the evidence against him. Instead of a lawyer, he was given a "PersonalRepresentative" -- a military officer who did not represent Latif's interests.
Four years ago, the Supreme Court rejected the Bush administration's argument that the detainees at Guantánamo had no right to contest the legality of their confinement in U.S. courts. In Boumediene v. Bush, the Court upheld the habeas corpus rights of the detainees, saying they must be given "a meaningful opportunity" to challenge their detention.
Latif petitioned a federal district court for a writ of habeas corpus. The Obama administration opposed the petition, relying on information from an interrogation report. Large sections of the report were blacked out, so it is difficult to know exactly what the report says. But we do know that, according to the report, Latif admitted to beingrecruited for jihad, receiving weapons training from the Taliban andserving on the front line with other Taliban troops. Latif said hisinterrogators garbled his words so that their summary bears norelation to what he actually said.
In the U.S. District Court for the District of Columbia, Judge HenryKennedy granted Latif's habeas petition, concluding that it could not"credit the information [in the Report] because there is seriousquestion as to whether the [Report] accurately reflects Latif's words,the incriminating facts in the [Report] are not corroborated, andLatif has presented a plausible alternative story to explain histravel." It troubled Judge Kennedy that, "[n]o other detainee sawLatif at a training camp or in battle. No other detainee toldinterrogators that he fled from Afghanistan to Pakistan, from ToraBora or any other location, with Latif. No other type of evidencelinks Latif to Al Qaeda, the Taliban, a guest house, or a trainingcamp."
Particularly significant to Judge Kennedy was that the "fundamentals[of Latif's story] have remained the same." More than a dozeninterrogation summaries and statements contained "[Latif's] adamantdenials of any involvement with al Qaida [sic] or the Taliban; hisserious head injury from a car accident in Yemen; his inability to payfor 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 "aninference that poor translation, sloppy note taking... [blackedout]... or some combination of those factors resulted in anincorrect summary of Latif's words." The fact that Latif was found inpossession of his medical papers when seized, according to the judge,"corroborat[ed]" Latif's "plausible" story.
The government appealed the district court ruling to the conservativeU.S. Court of Appeals for the District of Columbia Circuit, whichreversed the grant of habeas corpus. The appellate court admitted thatthe interrogation report was "prepared in stressful and chaoticconditions, filtered through interpreters, subject to transcriptionerrors, and heavily redacted [parts blacked out] for national securitypurposes." But for the first time, the DC Circuit held that governmentreports must be accorded a "presumption of regularity." That meansthey will be presumed to be true unless the detainee can rebut thatpresumption.
Judge Janice Rogers Brown, who wrote the opinion for the two judges inthe majority on the three-judge appellate panel, twisted Boumediene'sstatement that "innovation" could be used in habeas corpus proceedingsinto a "presumption of regularity" in government reports. Judge Browncriticized "Boumediene's airy suppositions."
The dissenting appellate judge, David S. Tatel, noted that, inpractice, the presumption of regularity will compel courts torubber-stamp government detentions because "it suggest[s] thatwhatever the government says must be true." He concluded that thereport in Latif's case was inherently unreliable because "itcontain[s] multiple layers of hearsay." Judge Tatel accused themajority of denying Latif the "meaningful opportunity" to contest thelawfulness of his detention that Boumediene guarantees.
When seven detainees whose petitions had been denied by the DCCircuit, including Latif, took their cases to the Supreme Court, theyhoped the high court would do justice. During the Bush administration,the Court had struck down illegal and unjust executive policies. Theseincluded the denial of habeas corpus rights to Guantánamo detainees,the refusal to afford due process to U.S. citizens caught in the "war onterror" and the holding of military commissions because they violatedthe Uniform Code of Military Justice and the Geneva Conventions.
But hope for justice died last week when the Court refused to evenconsider the propriety of the appellate court's denial of habeascorpus to those seven detainees. Henceforth, detainees who lose in theDC Circuit cannot expect the Supreme Court to give them relief. Theirlast stop will be at one of the most right-wing circuits in thecountry, which overturns or delays all release orders by federaljudges if the government objects.
The Supreme Court's refusal to review the appellate court decisions inthese cases has rendered Boumediene a dead letter. Since 2008,two-thirds of detainees who have filed habeas corpus petitions havewon at the district court level, yet not one of them has been releasedby judicial order. Judge Tatel wrote that "it is hard to see what isleft of the Supreme Court's command" in Boumediene that habeas reviewbe meaningful."
Like many men at Guantánamo, Latif went on a hunger strike to assertthe only power he had in the face of utter hopelessness -- the power torefuse food. He was force-fed for three months, which, he says, "islike having a dagger shoved down your throat." As attorney Marc D.Falkoff writes in his chapter about Latif in The United States andTorture: Interrogation, Incarceration, and Abuse, "[t]he UnitedNations Commission on Human Rights calls this torture."
Of the 800 men and boys held at Guantánamo since 2002, 169 remain. Ofthose prisoners, 87 have had their release approved by military reviewboards established during the Bush administration, and later by theGuantánamo Review Task Force established by President Obama in 2009.Yet they continue to languish in the prison camp.
In her opinion, Judge Brown wrote, "Luckily, this is a shrinkingcategory of cases. The ranks of Guantánamo detainees will not bereplenished." Indeed, Obama has sent only one new prisoner toGuantánamo. His strategy is to assassinate "suspected militants" orpeople present in "suspicious areas" with drones, obviating the necessity of incarcerating them and dealing with their detention incourt. As Judge Brown ominously observed, "Boumediene's logic iscompelling: take no prisoners. Point taken."
Marjorie Cohn is a Professor of Law at Thomas Jefferson School of Lawand past president of the National Lawyers Guild. She is editor of TheUnited States and Torture: Interrogation, Incarceration, and Abuse,released earlier this year in paperback by NYU Press.
This piece first appeared on Jurist.