Concern over detention of Gitmo prisoners

A Yemeni man died this past weekend while detained in the United States prison camp at Guantanamo Bay.[i]  Adnan Latif spent a storied decade in the Guantanamo Bay prison in maximum security Camp 5, after being picked up late in 2001 by Pakistani authorities and was one of the first prisoners transferred to Guantanamo in January 2002.  Latif’s story begs the question of exactly what process is due to Guantanamo detainees in a time of quasi-war.  I assert that, while Latif’s story certainly upsets me and should be disconcerting to any who hear it, I believe that he was given all process due to him according to the Due Process Clause[1].

Latif suffered a head injury in a 1994 car accident, prompting him to travel to Afghanistan in 2001 for medical treatment from a charity.  The United States government claims that Latif was drawn to Afghanistan by a military recruiter.  The story goes that he was trained by the Taliban and was sent to fight against the Northern Alliance.  Latif denied this, and vehemently denied any involvement with the Taliban.  Nevertheless, Latif’s trip to Afghanistan resulted in his detention by Pakistani officials and his transfer to Guantanamo.

Chris Richard, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Latif had a long history of mental issues, hunger strikes and struggles with prison guards while in Guantanamo.  In August 2008, Latif was placed in disciplinary unit because of repetitive disruptive behavior such as throwing bodily fluids at guards and spitting in a guard’s face.  Also, during a visit with Latif in 2008, his attorney noted that Latif had lost a considerable amount of weight, dropping from 145 pounds down to 107 pounds.  Prison officials state that the frequent hunger strikes were not likely the cause of Latif’s death, as he had ended his most recent hunger strike sometime in June, some two months before his death, and he was actually at a healthy weight at the time of his death.

Latif showed several signs of mental instability such as a 2009 incident when Latif slit his wrists using the veneer off of a table and hurled the blood at his attorney during a visit.  Latif was being kept in isolation in a psychiatric unit, and his lawyer said that Latif claimed to be hearing voices and seeing ghosts.  There were concerns that Latif was schizophrenic, but it does not appear that he ever received treatment for the possible condition, aside from general psychiatric treatment.

Latif was actually cleared for release in 2004, before many of these incidences, and was subsequently approved for a transfer to Yemen some five years later.  Latif also filed a successful writ of habeas corpus in 2010, with the court finding that the evidence presented against Latif was not adequate to link him to Al Qaeda; however, the thwarted Christmas Day Bombing of 2010 delayed his release, seemingly indefinitely.  Due to the bombing being tied to Yemenis, and because of the perceived instability of the region, an Executive Order was issued to suspend all releases of detainees to Yemen.  Latif’s writ of habeas corpus was subsequently overturned in 2011, with a finding that courts should assume that government documents presented as evidence are accurate and reliable.  A final blow resulted with the Supreme Court declining to hear the case in June of this year.  Now, two years after what looked like his impending freedom, Latif has died, still a Guantanamo detainee.

Latif’s sordid history paints the picture of a suffering, mentally ill detainee in Guantanamo Bay who was not receiving the treatment necessary and was perhaps denied the process due to him under the Due Process Clause of the United States Constitution.  This is where the law meets the unsavory facts, and concerns arise among detainees that perhaps the power to detain prisoners of war indefinitely is not so limited.

The Supreme Court has confronted such issues of Due Process and prisoner’s rights in times of war many times over the last seventy years or so, and many times more recently due to the terrorist attacks of 9/11 and the United States’ ensuing involvement in the Middle East.

The Supreme Court addressed the issue of Guantanamo Bay’s treatment as a United States territory in Rasul v. Bush[2] and Boumediene v. Bush[3], finding that Guantanamo Bay is under sufficient United States control to be considered territory of the United States.  Thus, those kept at Guantanamo are afforded the protections of the Constitution, specifically the Due Process Clause and the writ of habeas corpus.

The constant struggle in deciding Due Process issues is the balancing of compelling governmental interests against the private interest asserted.  The Court must study the function of the government interest asserted and the costs and benefits that would result from providing further process to a particular individual or group of individuals.  This test has been elaborated upon with regard to Due Process rights for detainees deemed enemy combatants.  The Court in Boumediene found that the writ of habeas corpus could not be denied to Guantanamo detainees, even those deemed enemy combatants, absent a formal suspension of the writ according to the Suspension Clause.[4],[5]  Thus, the Executive could not pursue a de facto suspension of the while neglecting a formal suspension.

But was Latif’s case sufficiently similar to prior Due Process cases in this arena?  Latif’s writ of habeas corpus was heard by a court and was actually granted initially.  The subsequent overturning of the decision rested on the reliability and accuracy of government documents tying Latif to Al Qaeda.  Is the established presumption of accuracy and reliability of government documents unfair to detainees seeking the writ?  Perhaps the Supreme Court declined to hear Latif’s case because it believed the lower courts had correctly decided the issue on the merits.  After all, at least Latif’s petition was heard by a lower court, where the detainees in Boumediene were initially denied the writ at all.  Latif was presumably confronted with the evidence against him that linked him to Al Qaeda, and he was able to contest that evidence and draw into question its probative value in his habeas petition and on appeal.  Perhaps the Court was bogged down with First Amendment issues, Immigration Law, and the ever-important Affordable Care Act this summer and did not see the import of hearing Latif’s case.  Whatever the reason, the decision has caused considerable concern in detainees who question the outer limits of indefinite detention.

Although Latif’s situation certainly causes some misgivings-most likely due to his precise issues with physical injury, mental instability, and extreme weight fluctuations due to the hunger strikes-Latif was afforded all process due to him.  His appeal was heard, and the Supreme Court found no reason to hear the merits of his case on appeal.  In a time of uncertainty and great conflict across the globe, the courts must lend great weight to the importance of national security and the judgment of those who are keeping this country safe.

[1] United States Constitution Amend. V, XIV (prohibiting deprivation of life, liberty or property without due process of law).

[2] 542 U.S. 466 (2004).

[3] 553 U.S. 723 (2008).

[4] Id.

[5] United States Constitution Art. I §9, cl. 2.


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