Earlier this month, Adnan Farhan Abdul Latif was found dead in his cell at Guantanamo Bay, Cuba. Latif is the ninth prisoner to have died in custody at the US naval base. Like all except a handful of detainees, Latif was never charged with or convicted of a crime. His death is both a human tragedy and an indictment of law’s failure at the US’ island prison.
To be sure, conditions at Guantanamo have improved since early 2002, when the first prisoners arrived. The chain-link cages used to hold detainees in the early days have been replaced by modern, state-of-art prison facilities. The United States is no longer torturing prisoners. The Supreme Court, moreover, has ruled that detainees are covered by the baseline protections of the Geneva Conventions and have a right to habeas corpus review of their cases by a federal judge. But if Guantanamo is no longer a prison outside the law, it remains a prison without justice.
Both the political branches and the courts bear responsibility, as Latif’s case demonstrates. In 2009, President Obama’s interagency Guantanamo Review Task Force cleared Latif for transfer. The task force concluded that Latif, a Yemini citizen, did not present sufficient danger to national security to warrant his continued imprisonment. This marked the third time the government had determined that Latif should be released. (Officials had reached the same conclusion in 2006 and 2008).
But Latif was not freed because the President had imposed a blanket ban on transfers to Yemen due to generalised concerns about security conditions there. The individual circumstances of Latif’s case – including his deteriorating mental condition after more than a decade of confinement – made no difference.
Right to habeas corpus
Courts have also failed to ensure justice at Guantanamo. In 2008, after more than six years of litigation, the Supreme Court finally recognised in Boumediene v Bush that Guantanamo detainees have a constitutional right to habeas corpus review of their detention. The Court stressed how long the prisoners had been held and insisted that they be afforded a meaningful opportunity to challenge their confinement.
|No closing date in sight for Guantanamo|
But since Boumediene, the DC Circuit – the appeals court with jurisdiction over all Guantanamo detainee cases – has consistently sought to undermine the Supreme Court’s ruling.
Through a series of decisions, the DC Circuit has made habeas corpus – for centuries a safeguard against arbitrary and unlawful exercises of government power – a virtual rubber-stamp for executive detention. The appeals court has upheld detention in nearly every case it has heard and cautioned district judges against examining the government’s allegations too closely.
Latif’s case illustrates the limited recourse available to prisoners in the courts. The district judge, Henry Kennedy, Jr., initially granted Latif’s petition, ruling that his detention was unlawful. Judge Kennedy found that the government had failed to show that Latif either was part of or had supported al-Qaeda or any associated enemy force, while describing the accusations against him as “unconvincing”.
But the government appealed and the DC Circuit blocked Latif’s release. The DC Circuit, moreover, not only reversed Judge Kennedy’s ruling in Latif’s case, but also established a new standard that made it even more difficult for any detainee to prevail. The appeals court ruled that government allegations – including years-old, uncorroborated intelligence reports – must be afforded a presumption of accuracy. This presumption flouted prior findings by district judges that such reports were unreliable given the hasty and fog-of-war conditions under which they were prepared.
The ruling prompted strong opposition from one member of the appellate panel. Dissenting, Judge David Tatel said the ruling “comes perilously close to suggesting that whatever the government says must be treated as true” and undermines Boumediene’s promise of meaningful review.
The Supreme Court, however, declined to hear the case. The Court’s continued failure to intervene threatens to render Boumediene a dead-letter, a decision cloaked in lofty ideals but with little practical impact.
Plan to close Guantanamo
Meanwhile, Obama’s plan to close Guantanamo is in tatters. More than half of the 167 detainees who remain there have been cleared for release by the administration. Yet, these individuals continue to languish in custody.
“Rather than finding solutions to this problem, the administration is exacerbating it.”
Rather than finding solutions to this problem, the administration is exacerbating it. In a move eerily reminiscent of tactics employed by the Bush administration, the government recently sought to limit detainees’ ability to meet with their lawyers once they lost their habeas petitions.
The limitations not only would make it more difficult for detainees’ to pursue legal remedies, for example, by filing another habeas petition based on new evidence, but also would increase the sense of despair that pervades Guantanamo, restricting access to the one consistent source of outside human contact for men already into their second decade of incarceration without trial.
In a stinging decision, the district judge, Royce C Lamberth, rejected the administration’s effort – a decision that is all the more remarkable given the courts’ increasing sense of complacency about the fate of those still imprisoned at Guantanamo. Lamberth chastised the government for trying to make a prisoner’s ability to see his lawyer a matter of military discretion and ousting the judiciary from its supervisory role.
Additionally, Lamberth said that there was no need for the restrictions. The government, he noted, had failed to present a single instance in which the current protective order that has controlled counsel access for the past four years jeopardised classified information or caused any harm to the military’s operation of Guantanamo.
Sadly, however, Lamberth’s ruling will do little to improve the lives of those still in detention. It vindicates the ideal of the rule of law, but will not affect the government’s ability to hold people indefinitely, including those who the government itself acknowledges should be released. Unless the administration chooses to exercise its political will to end indefinite detention or courts intervene more forcefully – including by ordering the release of those who, like Latif, do not pose a threat to US security – more deaths in detention are inevitable.
Jonathan Hafetz is Associate Professor of Law at Seton Hall University School of Law and the author, most recently, of Habeas Corpus after 9/11: Confronting America’s New Global Detention System.