Hope Dies at Guantánamo

by Marjorie Cohn
Submitted to Portside by the author

Jurist
June 20, 2012

http://jurist.org/forum/2012/06/marjorie-cohn-latif-scotus.php

	JURIST Contributing Editor Marjorie Cohn of the Thomas
	Jefferson School of Law says that the Supreme Court's
	recent refusal to hear appeals from detainees at
	Guantanamo Bay represents a significant step away from
	the rights secured for them in Boumediene v. Bush...

The tragic case of Adnan Farhan Abdul Latif hit a dead end
when the US Supreme Court issued an order refusing to hear his
case last week. Latif, a Yemeni man, has been imprisoned at
Guantanamo 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 Guantanamo 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 "Personal Representative" - 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 Guantanamo had
no right to contest the legality of their confinement in US
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 being recruited for jihad,
receiving weapons training from the Taliban and serving on the
front line with other Taliban troops. Latif said his
interrogators garbled his words so that their summary bears no
relation to what he actually said.

In the US District Court for the District of Columbia, Judge
Henry Kennedy granted Latif's habeas petition, concluding that
it could not "credit the information [in the Report] because
there is serious question as to whether the [Report]
accurately reflects Latif's words, the incriminating facts in
the [Report] are not corroborated, and Latif has presented a
plausible alternative story to explain his travel." It
troubled Judge Kennedy that, "[n]o other detainee saw Latif at
a training camp or in battle. No other detainee told
interrogators that he fled from Afghanistan to Pakistan, from
Tora Bora or any other location, with Latif. No other type of
evidence links Latif to Al Qaeda, the Taliban, a guest house,
or a training camp."

Particularly significant to Judge Kennedy was that the
"fundamentals [of Latif's story] have remained the same." More
than a dozen interrogation summaries and statements contained
"[Latif's] adamant denials of any involvement with al Qaida
[sic] or the Taliban; his serious head injury from a car
accident in Yemen; his inability to pay for 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
"an inference that poor translation, sloppy note taking . . .
[blacked out] . . . or some combination of those factors
resulted in an incorrect summary of Latif's words." The fact
that Latif was found in possession 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
conservative US Court of Appeals for the District of Columbia
Circuit, which reversed the grant of habeas corpus. The
appellate court admitted that the interrogation report was
"prepared in stressful and chaotic conditions, filtered
through interpreters, subject to transcription errors, and
heavily redacted [parts blacked out] for national security
purposes." But for the first time, the DC Circuit held that
government reports must be accorded a "presumption of
regularity." That means they will be presumed to be true
unless the detainee can rebut that presumption.

Judge Janice Rogers Brown, who wrote the opinion for the two
judges in the majority on the three-judge appellate panel,
twisted Boumediene's statement that "innovation" could be used
in habeas corpus proceedings into a "presumption of
regularity" in government reports. Judge Brown criticized
"Boumediene's airy suppositions."

The dissenting appellate judge, David S. Tatel, noted that, in
practice, the presumption of regularity will compel courts to
rubber-stamp government detentions because "it suggest[s] that
whatever the government says must be true." He concluded that
the report in Latif's case was inherently unreliable because
"it contain[s] multiple layers of hearsay." Judge Tatel
accused the majority of denying Latif the "meaningful
opportunity" to contest the lawfulness of his detention that
Boumediene guarantees.

When seven detainees whose petitions had been denied by the DC
Circuit, including Latif, took their cases to the Supreme
Court, they hoped the high court would do justice. During the
Bush administration, the Court had struck down illegal and
unjust executive policies. These included the denial of habeas
corpus rights to Guantanamo detainees, the refusal to afford
due process to US citizens caught in the "war on terror" and
the holding of military commissions because they violated the
Uniform Code of Military Justice and the Geneva Conventions.

But hope for justice died last week when the Court refused to
even consider the propriety of the appellate court's denial of
habeas corpus to those seven detainees. Henceforth, detainees
who lose in the DC Circuit cannot expect the Supreme Court to
give them relief. Their last stop will be at one of the most
right-wing circuits in the country, which overturns or delays
all release orders by federal judges if the government
objects.

The Supreme Court's refusal to review the appellate court
decisions in these cases has rendered Boumediene a dead
letter. Since 2008, two-thirds of detainees who have filed
habeas corpus petitions have won at the district court level,
yet not one of them has been released by judicial order. Judge
Tatel wrote that "it is hard to see what is left of the
Supreme Court's command in Boumediene that habeas review be
'meaningful.'"

Like many men at Guantanamo, Latif went on a hunger strike to
assert the only power he had in the face of utter hopelessness
- the power to refuse food. He was force-fed for three months,
which, he says, "is like having a dagger shoved down your
throat." As attorney Marc D. Falkoff writes in his chapter
about Latif in The United States and Torture: Interrogation,
Incarceration, and Abuse, "[t]he United Nations Commission on
Human Rights calls this torture."

Of the 800 men and boys held at Guantanamo since 2002, 169
remain. Of those prisoners, 87 have had their release approved
by military review boards established during the Bush
administration, and later by the Guantanamo 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
shrinking category of cases. The ranks of Guantanamo detainees
will not be replenished." Indeed, Obama has sent only one new
prisoner to Guantanamo. His strategy is to assassinate
"suspected militants" or people present in "suspicious areas"
with drones, obviating the necessity of incarcerating them and
dealing with their detention in court. As Judge Brown
ominously observed, "Boumediene's logic is compelling: take no
prisoners. Point taken."

[Marjorie Cohn is a Professor of Law at Thomas Jefferson
School of Law and past president of the National Lawyers
Guild. She is editor of The United States and Torture:
Interrogation, Incarceration, and Abuse, released earlier this
year in paperback by NYU Press.

Suggested citation: Marjorie Cohn, Hope Dies at Guantanamo,
JURIST - Forum, June 20, 2012,
http://jurist.org/forum/2012/06/marjorie-cohn-latif-scotus.php
.]

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