The Face of Indefinite Detention

This op-ed first appeared in The New York Times on September 14, 2012.

Before he died on Sept. 8, Adnan Farhan Abdul Latif had spent close to 4,000 days and nights in the American prison at Guantánamo Bay, Cuba. He was found unconscious, alone in his cell, thousands of miles from home and family in Yemen.

Eleven years ago, he found himself in Afghanistan at the wrong place and the wrong time. It was an unusual set of events that took him there. Years earlier Mr. Latif had been badly injured in a car accident in Yemen. His skull was fractured; his hearing never quite recovered. He traveled to Jordan, seeking medical treatment at a hospital in Amman; then, following the promise of free medical care from a man he met there, journeyed to Pakistan, and eventually to Afghanistan.

Like so many men still imprisoned at Guantánamo, Mr. Latif was fleeing American bombing —not fighting—when he was apprehended by the Pakistani police near the Afghan border and turned over to the United States military. It was at a time when the United States was paying substantial bounties for prisoners. Mr. Latif, a stranger in a strange land, fit the bill. He was never charged with a crime.

The United States government claims the legal authority to hold men like Mr. Latif until the “war on terror” ends, which is to say, forever. Setting aside this troubling legal proposition, his death and the despair he endured in the years preceding it remind us of the toll Guantánamo takes on human beings.

Adnan Latif is the human face of indefinite detention.

In the landmark 2008 case Boumediene v. Bush, the Supreme Court ruled that Guantánamo detainees were entitled to “meaningful judicial review” of the legality of their detentions, via the writ of habeas corpus—a constitutional check obligating the government to demonstrate a sufficient factual and legal basis for imprisoning someone. The Boumediene decision, in principle, ought to have given hope to Mr. Latif and men like him.

And it was under such principle that two years later, a United States District Court judge hearing Mr. Latif’s habeas corpus petition ordered him released, ruling that the accusations against him were “unconvincing” and that his detention was “not lawful.” By that time, Mr. Latif had been cleared for release from Guantánamo on three separate occasions, including in 2009 by the Obama administration’s multiagency Guantánamo Review Task Force.

Nevertheless, the Department of Justice appealed the district court’s decision to the United States Court of Appeals for the District of Columbia Circuit—which has ruled in the government’s favor in nearly every habeas corpus appeal it has heard. The appellate court reversed the trial judge’s release order, effectively ruling that evidence against detainees must be presumed accurate and authentic if the government claims it is.

A strong dissenting opinion criticized the appellate court majority for not just “moving the goal posts,” but also calling “the game in the government’s favor.”

But Mr. Latif didn’t see it as a game. He was dying inside. Like other men, he had been on a hunger strike to protest his detention. After losing the appeal of his case, he told his lawyer, “I am a prisoner of death.”

Three months ago, the Supreme Court declined to hear the appeals of Mr. Latif and six other detainees, who pleaded for the court to restore its promise of meaningful review of their cases.

But what is unsaid in all of the court rulings is that Mr. Latif was imprisoned not by evidence of wrongdoing, but by accident of birth. In Guantánamo’s contorted system of justice, the decision to detain him indefinitely turned on his citizenship, not on his conduct.

With Mr. Latif’s death, there are now 56 Yemenis who have been cleared for release by the Guantánamo Review Task Force since 2009 but who remain in prison. President Obama, citing general security concerns, has imposed a moratorium on any and all transfers to Yemen, regardless of age, innocence or infirmity.

It is fair, and regrettable, to assume that some of these detainees will die there as well.

Mr. Latif, after all, was the ninth man to die at Guantánamo. More men have died in the prison camp than have been convicted by a civilian court (one) or by the military commissions system in Guantánamo (six). In 2006, Salah al-Salami, a Yemeni, and Yasser al-Zahrani and Mani al-Utaybi, both Saudis, were the first men to die at Guantánamo. Their deaths were called suicides, even though soldiers stationed at the base at the time have raised serious questions about the plausibility of the Defense Department’s account. (Full disclosure: the Center for Constitutional Rights represents the families of two of the men who died.)

According to the government, three more detainees committed suicide and two others died of natural causes. There has been no independent investigation into any of the deaths, however; there has been no accountability for a range of constitutional and human rights violations at Guantánamo.

The government has not yet identified the cause of Mr. Latif’s death, but it is Guantánamo that killed him. Whether because of despair, suicide or natural causes, death has become an inevitable consequence of our politically driven failure to close the prison—a natural byproduct of the torment and uncertainty indefinite detention inflicts on human beings.

The case of Adnan Latif should compel us to confront honestly the human toll of the Guantánamo prison—now approaching its 12th year in operation. We can start this reckoning by releasing the 86 other men at Guantánamo who the United States government has concluded no longer deserve to be jailed there.

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