Posted by Brad @ 11:12 am on September 13th 2012

Take a Brief Moment…

To reflect on this man, Adnan Farhan Abdul Latif. He was a Yemeni man captured by Pakistani police near the Afghanistan border in December 2001. His explanation for that:

Latif says he left Yemen in 2001 on a quest for medical treatment for head injuries he suffered in a 1994 car accident. He went to Pakistan to get help from Ibrahim, a Yemeni he had met at a charitable organization in Yemen. When Latif arrived in Quetta, Ibrahim had already left Pakistan, so Latif followed him to an Islamic studies institute in Kabul, Afghanistan. But once Latif caught up to Ibrahim at the institute, Ibrahim had to leave again and told Latif to wait for him there until they could travel together to Pakistan. After waiting in vain for several weeks, Latif says, he then returned to Pakistan without Ibrahim, fleeing U.S.-supported forces he had been told were advancing from northern Afghanistan.

Worth noting he had those same persistent health health problems while in Gitmo (and was denied treatment for the 11 years he was there).

Instead, the police turned him over to the Americans, who dropped him into Gitmo. Where he spent 11 years, before dying on Sept. 8 (it is unclear how. He had spent a third of his life there.

In 2009, a U.S. judge reviewed the case and cleared him for release, noting that his detention was unlawful even under the government’s broad stated authority, and that the government had essentially no evidence against him (and never charged him with a crime) and their unsubstantiated claims were entirely “unconvincing”.

Nevertheless, the Obama administration appealed, and kept him in Gitmo, and that previous ruling was overturned. Why?

At the heart of the Government’s case is [redacted]

Actually that’s not quite true. At the heart of the case was the fact that the original judge in 2009 did not immediately presume that the government’s evidence, by virtue of it being the government’s, its proper due. While the burden of proof is on the government to prove a detention is lawful, any proof they put forth, including field reports, memos, or internal testimony, is to be presumed correct.

Ordinarily, at this point in our analysis, we would simply review the district court’s comparison of the Government’s evidence with the “detainee’s facts and explanation,” bearing in mind that the ultimate burden is on the Government to establish Latif’s detention is legal. Id. We pause here, however, because the district court expressly refused to accord a presumption of regularity to the Government’s evidence, and on appeal the Government continues to assert its Report is entitled to such a presumption.

“The presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.” Sussman v. U.S. Marshals Serv., 494 F.3d 1105, 1117 (D.C.Cir.2007). The presumption applies to government-produced documents no less than to other official acts. See Riggs Nat’l Corp. v. Comm’r, 295 F.3d 16, 21 (D.C.Cir.2002) (holding that “an official tax receipt” of a foreign government “is entitled to a presumption of regularity”). But Latif (and our dissenting colleague) argue no such presumption can be applied in Guantanamo cases—at least not to [redacted] reports prepared in stressful and chaotic conditions, filtered through interpreters, subject to transcription errors, and heavily redacted for national security purposes.

Since the problems Latif cites are typical [redacted], the rule he proposes would subject all such documents to the he-said/she-said balancing of ordinary evidence. It is impossible to cure the conditions under which these documents were created, so Latif’s proposed rule would render the traditional presumption of regularity wholly illusory in this context. We conclude first that intelligence documents of the sort at issue here are entitled to a presumption of regularity, and second that neither internal flaws nor external record evidence rebuts that presumption in this case.

In other words, the first judge looked at the government’s stuff and said “Are you kidding me? This is all cobbled-together bullshit!” And the appeals judge ruled that you’re not allowed to say that about government evidence. In the he-said/she-said argument, government-said always wins. Which kind of negates the burden of proof thing if you ask me.

So, with that ruling, what was Latif’s sentence? He had none. What was he found guilty of? No no – he still was not charged with a crime. All of that was simply the process of determining whether the government could keep him in Gitmo without charging him with a crime or presenting evidence of a crime against him. The Obama administration vehemently argued that they could, and they won, so back in the black hole this guy goes, with no knowledge of his fate, the intent of his captors, his options or recourses – and with 11 years of his life already behind him.

It looks like his death was probably a suicide. And I hate to say it, but I’m not sure I blame him. Can you imagine the Kafkaesque hell that was his life?

In any event, it’s worth pausing to take note of, and also worth noting the broader context that Latif is not a weirdo exception, and unfortunate outlier, but is in fact a pretty standard Gitmo story. It is the norm. And finally, it is worth noting that the Obama administration went above and beyond to write this story for him. They have had every, every, EVERY opportunity to do the right thing, and not only have not, but have pursued the wrong thing with unprecedented vigor and ferocity – remember, it was the Bush administration that wound up releasing about 80% of Gitmo detainees, and it was the Obama administration that put a full stop to that and argued that the very option of release, if they couldn’t prove guilt, was not on the table.

I could give two shits how pretty Obama sounds on a debate stage when speaking on this subject. Ask Adnan Farhan Abdul Latif if Romney wanting to keep ten year old tax cuts on the top income earners in America, or changing Medicare from a government-run program to a government-financed voucher program, or whatever the issue that puts everyone into their partisan pens that day, is important enough that it justifies how his life went over the last four years. Ask Latif if this is worth ignoring. Ask Latif if this is change we can believe in.

I mean, if you could still ask him anything.

10 Comments »

  1. Nobody in Yemen can treat a head injury?

    Comment by Rojas — 9/13/2012 @ 2:13 pm

  2. Eh, he knew a guy.

    Obviously, I’m not vouching for his innocence here – frankly, innocence is not really the point, as even if he’s guilty – what does that even mean? Guilty of what, exactly? Even in the best-case scenario of the United States – that he was entering Afghanistan to fight against America – that makes him essentially a pre-POW. Actual Taliban fighters we pick up aren’t subjected to this kind of treatment. Even the half-retarded guys we get in the United States for actively conspiring and in some case about to execute terrorism don’t fall into this “class” of American prisoner. Why this guy?

    The truth is, we know, for a fact, that most Gitmo detainees are innocent, in the sense that we have already let more than 80% of the initial detainees go – just flat-out go, in most cases – because we couldn’t justify holding them even in front of secret military tribunals set up for the express intent of rubber stamping holding them. That’s not behavior indicative of the United States believing those guys are Carlos the Jackal or terrorist supervillains.

    Like I said, there is a possibility that this guy is guilty of something (although, again, even if he is…why this? And if we believe it, but can’t prove it, why do we believe it?). There is also every possibility that he is basically who he says he is…some poor schmuck who was having chronic pain and knew a guy in Afghanistan, and who wound up getting picked up by Pakistan, sold off to America, and dropped into a black hole.

    Systems of justice are set up precisely to parse out which guy this guy was. But America chooses to not afford him that basic human right.

    Comment by Brad — 9/13/2012 @ 2:49 pm

  3. Greenwald weighs in:

    A detainee at Guantánamo was found dead in his cell on Saturday, according to camp officials. He is the ninth person to die at the camp since it was opened more than ten years ago. As former Gitmo guard Brandon Neely pointed out Monday, more detainees have died at the camp (nine) than have been convicted of wrongdoing by its military commissions (six). This is the fourth detainee who has died at the camp since Obama’s inauguration.

    Although the detainee’s identity has not been disclosed, a camp spokesman acknowledged that he “had not been charged and had not been designated for prosecution”. In other words, he has been kept by the US government in a cage for many years without any opportunity to contest the accusations against him, and had no hope of leaving the camp except by death.

    Indeed, dying in due process-free captivity now appears to be the only way for many of these detainees to leave.

    Comment by Brad — 9/13/2012 @ 4:46 pm

  4. Incidentally, because I still don’t think people know anything about Gitmo beyond what Dick Cheney has told them:

    775 detainees have been brought to Guantanamo.

    608 were released (or extradited) without charge.

    167 remain

    50-60 have been approved for release as of December 2008 (Latif was one of these).

    So 92% of people brought to Gitmo were eventually approved for release, without charge. As in Latif’s case, all of those 50-60 are on appeal, and being adjudicated now – again, not in the sense that they are having their day in court, but rather on whether the government is allowed to just not release them because it doesn’t want to. The government can charge any of those people at any time and they go from being “approved for release” to “charged”. The adjudication is whether the government can decide it doesn’t care to charge them but still gets to hold them forever – the judge in Latif’s case, and President Obama, say “yes”.

    9 have died in Gitmo (6 by suicide).

    6 have been charged and convicted (another six are currently facing a military tribunal)

    Those six:

    —Foot soldier David Hicks in a 2007 plea bargain to return home, now free in his native Australia.

    —Osama bin Laden driver Salim Hamdan at trial in July-August 2008, now free in his native Yemen.

    —Bin Laden media aide Ali Hamza al Bahlul of Yemen at trial in November 2008, serving life in a special prison annex.

    —Foot soldier Ibrahim al Qosi of Sudan in an August 2010 plea bargain that returned him to his native Sudan on July 10, 2012.

    —Teen terrorist Omar Khadr in an October 2010 plea bargain to return to his native Canada in 2011 and serve at most seven more years there.

    —Noor Uthman Mohammed on Feb. 18, 2011 in a plea bargain to return to his native Sudan by 2014, provided he testifies for the government at federal and military trials until his release.

    —Former CIA captive and ex-U.S. resident Majid Khan, a Pakistani, in a February 2012 plea bargain to postpone his sentencing for four years while he testifies against other fellow “high-value captives.”

    15 Gitmo occupants in the life of the facility have been classified as “high value detainees”

    Comment by Brad — 9/13/2012 @ 4:58 pm

  5. It is shocking how many reactionaries in our country have no idea at all about how many of thee “worst of the worst” have turned out to be accidents and released.

    Minor quibble: Your numbers don’t add up. If 775 is the total number brought to GTMO, then all the others should add up to that. Iget that the 50-60 approved for release are still there, but the 9 deaths and the 6 charged should somehow work with the released and still held to add up to the total brought in.

    Comment by Jack — 9/13/2012 @ 5:42 pm

  6. Not sure I follow on the latter, but my math was admittedly cobbled together and back-of-the-envelope (and a bit out of date – the ACLU has better).

    As to the former point, I agree. What also gets me is that in addition to being WORSE than second term Bush on Gitmo, Obama has bypassed the problem altogether – by just drone-bombing these same kinds of people rather than have to go to the trouble. The record is 92% of people detained without charge that we basically admit we didn’t know what we were talking about on.

    Translate that to the people, including American citizens, that President Obama has created an assassination program to murder and which has, to date, likely killed more than 3,000 – including, incidentally, over 800 civilians. And the non-civilians, the “militants”?

    Well, that word has about as much meaning as “worst of the worst”.

    Comment by Brad — 9/13/2012 @ 6:00 pm

  7. OK, if the total ever brought to GTMO is 775, then the sum of those released (608), died in prison (9), still detained (167), and convicted & transferred (6) should add up to 775. they add up to 790, so I wonder if the actual number brought to GTMO is 790 or if one of the other numbers is off, like those still detained or those released. A minor point I know, but what I do best is nitpick the work of others.

    Comment by Jack — 9/13/2012 @ 6:48 pm

  8. I can’t make the numbers work based upon teh ACLUs figures. Something like:
    Total ever at GTMO: 779
    Released: 602
    Died: 9
    Convicted, still at GTMO: 4
    Convicted, repatriated or transferred: 3
    Transferred for prosecution: 1
    Limbo (still there awaiting… something): 164

    Comment by Jack — 9/13/2012 @ 6:58 pm

  9. Well, for my purposes then, let’s say between 77% and 92% were approved for release without charge. And that 77% is just the straight up number of released, not including the 50-60 approved for release (I don’ know how many of those approvals for release were revoked on appeal, like this guy).

    So let’s say this.

    You line up 10 Gitmo detainees. Just put them in front of a wall.

    Roughly 8 of them, right off the top, right then and there, you let go, because even the United States government has to admit it doesn’t have good enough evidence to justify even holding (nevermind convicting), even in the military tribunal system they set up for that explicit purpose.

    Not to pick on Rojas, but I get a lot of comments like his first – just vague implications that the there is some opaque reason to think the guy is guilty (for the record (benefit of the doubt) I don’t think Rojas meant it that way). Not even at a level that rises to circumstantial evidence, mind you – just the vague and unspoken reflex that anything about him ought to be treated as suspect – he’s there after all – and the again vague and unspoken reflex that the burden of proof is really on him. Because if he’s there, he must have been doing something wrong.

    The truth is even the GOVERNMENT has admitted that’s basically bullshit. 86% of the guys were brought in for bounties (bounties not on specific persons, but for turning in “terrorists”, the US government definition of which is literally “whoever we call a terrorist”). 77% to 92% the government ultimately determined they couldn’t find a lick of evidence against – and this isn’t “let off on a technicality”, this is a burden of proof just on HOLDING them, in a shadow court system established for the sole purpose of not giving them due process but of PROCESSING them.

    The more you read about specific prisoners, and the more you get an actual, factual picture of what the facility is, who goes there, and what their fates are, the more that illusion just falls apart. But most people consciously choose ignorance.

    Comment by Brad — 9/13/2012 @ 8:01 pm

  10. Yeah I am afraid my nitpicking of numbers obscured my complete agreement with your larger point, and the appropriate outrage this ought to generate.

    Comment by Jack — 9/13/2012 @ 8:10 pm

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