Opinion: Court case illustrates Gitmo’s failure

NEW YORK — Last May, following several apparent suicide attempts, Adnan Latif, a Yemeni detainee at the U.S.-run Guantanamo Bay camp in Cuba, sent his lawyer a letter in which he renounced all hope in the U.S. justice system.

“You are still looking for justice and seeking hearings,” he wrote, while “I am being pushed toward death.”

Latif’s lack of faith is understandable. For more than eight years, the U.S. government has held him at Guantanamo, accusing him of having trained and fought with Al Qaeda in Afghanistan but never formally charging him with any crime.

When he wrote his letter, Latif did not know of a secret that makes his detention particularly reprehensible. Court papers disclosed last month show that as far back as 2004, the U.S. Department of Defense acknowledged it had no knowledge of Latif participating in terrorist training and recommended his transfer from Guantanamo. The papers also said that the Bush administration authorized Latif’s transfer in 2007.

That information only came to light in an opinion by a federal judge who ordered Latif’s immediate release. U.S. District Court Judge Henry Kennedy Jr.’s heavily redacted opinion said the government had failed to demonstrate that Latif was part of Al Qaeda or the Taliban, or that he had even trained as a militant. Kennedy instead concluded that Latif’s claim that he left Yemen for free medical treatment for severe car-crash injuries was “plausible.”

Kennedy’s order should mark the final chapter in the sordid tale of Latif’s indefinite detention without charge. But rather than do the right thing by sending Latif home or to a third country, the U.S. government informed the court shortly after the ruling that it is giving “serious consideration” to appealing his release. The government has until Sept. 20 to decide.

Returns to Yemen are unquestionably problematic. Half the 176 prisoners remaining at Guantanamo are Yemeni and 57 of them were cleared last year for release — 27 of them immediately and the rest if security conditions in Yemen improve.

But Yemen is a major Al Qaeda stronghold and the Nigerian man who tried to blow up a U.S. airliner on Christmas Day was allegedly dispatched by the group’s Yemeni branch. The administration of President Barack Obama suspended virtually all releases to Yemen following the Christmas Day attempt. In addition, both houses of Congress are considering legislation that would make it almost impossible to transfer Guantanamo detainees to at-risk countries such as Yemen.

But Latif’s case underscores both the gross human rights violations and strategic risks inherent in such blanket bans. Detaining Latif because of an attempted bombing committed without his knowledge or participation is a form of collective punishment that violates American notions of justice. Holding him on suspicion of a crime he theoretically may commit in the future, particularly with no credible evidence that he committed a crime in the past, is an equally gross betrayal of U.S. constitutional values. U.S. reliance on preventive detention also hands militants a recruitment tool and sets a dangerous precedent for abusive regimes around the world.

While the government ponders its next move, Latif, 34, lives in an isolation cell, except when he is placed in the psychiatric ward or force-fed through his nose during his frequent hunger strikes. His attorney, David Remes, said that when he visited Latif last month, he found him emaciated and seated on the floor in a padded garment known at Guantanamo as a “suicide smock.” He said Latif’s neck was marked with abrasions from attempts to strangle himself the previous night with the waistband of his underwear.

Remes said that when he told Latif that a judge had ordered his release, he was too despondent to take much interest.

The U.S. government hasn’t taken much interest in Latif, either. When Latif protested during his first formal hearing at Guantanamo in 2004 — more than two years after his capture — that the name on his form was not even his, the head of the review board merely replied, “Well that's the name we have.”

Latif told the review board that he went to Afghanistan for a free operation arranged by an Islamic charity for head injuries he had suffered in a car accident because he was too poor to afford the surgery at home. The board rejected his plea to search for medical records that would support his story. The medical records, later obtained by Latif’s lawyers and sent to Human Rights Watch, described acute head injuries and recommended that he seek an additional operation.

While Latif’s case is particularly compelling, his treatment is typical. Of the nearly 800 men who have been held at Guantanamo since it opened in 2002 — most for several years — only four have been convicted of crimes. Only about three dozen others are likely to be prosecuted. About a dozen of the 38 prisoners including Latif who have been ordered released by federal judges remain behind bars.

The Obama administration should release the men it cannot prosecute, regardless of their nationality, and monitor them if necessary. But that’s only the first step. It also should arrange for those released to receive comprehensive psychological and medical care, as well as help to reintegrate them into society, wherever that is. It’s the least the government owes a man like Latif, whom it has held without charge for nearly one-fourth of his life, against the advice of its own military advisors.

Letta Tayler is a terrorism and counterterrorism researcher with Human Rights Watch.