Sabin Willett and David Remes on Adnan Latif

By Benjamin Wittes
Wednesday, September 12, 2012, 9:30 PM

I will offer my own thoughts on the death of Adnan Latif later on, but several people have sent me comments on the subject that I am going to post first. Rather than do this in a string posts, I’m going to consolidate two in this one post. David Remes, one of Latif’s lawyers, sent me the following on Amnesty International’s plans for a major campaign for his now-dead client’s freedom:


Amnesty International prepared [this] "stamp" . . . for its worldwide campaign on behalf of Adnan Latif and another Yemeni client, Hussain Almerfedi. The "stamp" is not postage-sized but was to serve as the logo for the campaign. In light of Latif's death, Amnesty's campaign will now focus only on Almerfedi. (Amnesty will still include Latif's case file to its members as further support for redirecting US detention policy in Guantanamo.) The redesigned stamp appears here. Like Latif, Almerfedi won his habeas case, only to see the D.C. Circuit reverse and the Supreme Court deny cert. Lawfare has provided excellent coverage. See here and here. Over the summer, Almerfedi filed a Rule 60(b) motion in the district court to reopen his case. Briefing will be completed this week. The motion and opposition were filed under seal, as will be the reply.


I know of statements issued by Amnesty (here and here), Human Rights Watch (here), Center for Constitutional Rights (here), and Cageprisoners (here), and fine posts by Zachary Katznelson of the ACLU (here), Rachel Levinson-Waldman of the Brennan Center for Justice (here), Marcy Wheeler (here)

Meanwhile, Sabin Willett, who represents Uighur clients at Guantanamo, sent in the following thoughts:

These days we are numb to Guantanamo; without much public notice it grinds on, until a moment like Adnan Latif’s death arrives. Perhaps this death will muster the Left to denunciation, and the Right to rally to our forever war against a common noun. Scholars may pick apart the legal opinions. Or perhaps not. Latif the man already slips beneath the surf of politics. Except to a few lawyers who met and tried to salve his broken soul (I am not one of them), he’s become a symbol only. But if we notice his death at all, then in the thrust and parry of little questions---about detainability, and the now-hollow Writ, and the presumption of reliability, and so on---we should not forget to ask ourselves the bigger ones. In this political season, we hear daily boasts of our government’s commitment to freedom, and in every season we tout courts, where even a Guantanamo prisoner can have his day. But these boasts are false, and we should find the decency to stop making them. In fact Latif’s freedom meant nothing to any branch of our government: not to the Executive that cleared him and then threw up its hands (he’s a Yemeni, after all), not to the D.C. Circuit, charged with defense of the Writ but busy hollowing it, and certainly not to Congress, which has made political sport of men like Latif for almost a decade. Freedom, as a value, was taken seriously by only one officer of our government---the trial judge who ordered Latif’s release. We should pause to reflect on this, for Latif’s case turned on the matter about which trial judges are most expert: evidence. Every day trial judges review good evidence and bad evidence, eyewitness accounts and hearsay. Evidence is their specialty. Latif’s trial judge has heard many cases and found reliable evidence in many cases. He did not find it here. And so his assessment of the evidence takes us to our second comfortable myth: that Boumediene gave judicial review. For though the trial judge was an expert, his work was unwound by masters bent on proving Boumediene a mistake, and willing, as the dissent so eloquently observed, to throw the game in proving it. The circuit rested its decision not on evidence at all, but on the presumption that a document written by the jailer must be right, even if anonymous---even if, in various particulars, demonstrably unreliable. Some trial lawyer cleverer than me will have to explain how one rebuts such a presumption, when the document’s author is shielded, and any sort of inquiry into it is barred. Someone else will have to argue that a court checks the executive when it bows to its anonymous papers. If judicial review depends on a presumption that the jailer’s documents are reliable, then there is no review. The jailer always has documents: it has only to write them. But whether we care about freedom or have judicial review are smaller questions. We might also ask what good came to us by Latif’s imprisonment and death? Surely not security. He was either, as the trial judge found, a man in the wrong place at the wrong time, or as the government contended, briefly a footsoldier of little competence and no consequence, more than a decade ago. The government does not allege that Latif ever committed a crime, engaged in an act of terror or planned to. So far as the public record shows, Adnan Latif never hurt another human being. And if he was a belligerent, it was in a war that has ended. In 2001 Congress had authorized a war against any nation that harbored the 9/11 attackers. The Taliban was the official government of a nation, Afghanistan, that harbored them, and the secret document says Latif affiliated with its army. Enemy belligerents may be detained until the end of active hostilities in the war in which they are taken. But whatever one thinks of the document, Latif was not, ten years later, still an enemy belligerent. The Taliban with whom the document allies him was defeated at about the time he was captured, and the Afghan government toppled soon after. The nation we invaded in 2001 is gone---indeed, for most of Latif’s imprisonment its successor was our ally. Its al Qaeda camps are gone. Their leader is gone. Civil strife continues in Afghanistan today, between an ally and brigands who call themselves “Taliban,” but not even the anonymous document could show that Latif affiliated himself with one of these modern gangs. If active hostilities means any hostilities against the brigands of tomorrow, then active hostilities will go on---as Latif apparently concluded---forever. Which leaves us with a last question: what sort of a people would have held this deeply sad, and surpassingly inconsequential man in conditions so harsh, for so long? A very timid one, it seems to me. A people content with secret prisons on offshore islands, a people content to bow to anonymous documents, a people prone to mythologize, for political reasons, an enemy out of any handy prisoner---and a people that cares absolutely nothing about freedom. We haven’t always been such a people. But as long as Guantanamo grinds on, it is a hollow boast to claim we are a better one.