I have spent a lot of time publishing other people's statements on the death of Adnan Latif over the past couple of days and have refrained from expressing my own views---in part because I have been gathering and composing my thoughts, which are mixed and which I offer here without apology for their lack of especial coherence. I find Latif's case uncommonly sad---not just sad in the way that all deaths in custody are sad, but sad for a different reason: Almost nobody really thought that Adnan Latif needed to be in custody at all. His death, therefore, should have been avoidable.
Guantanamo's foes are building up a lot of myths about the Latif case---many of which I don't buy at all. While I have criticized the D.C. Circuit's opinion in the case, it does not follow from the decision's flaws that Latif was an innocent man wrongly locked up for more than a decade. Indeed, as I argued in this post, it is possible both that the district court misread the evidence as an original matter and that the D.C. Circuit overstepped itself in reversing that decision. The evidence in the case---at least what we can see of it---does not suggest to me that Latif had no meaningful connection to enemy forces. One also shouldn't read into the fact that Latif was cleared for released that the government believed he posed no danger---as many seem to be doing. The government clears people for release for a lot of reasons, and some of the people cleared for release get cleared even though the government believes they do pose some danger. To be cleared for release merely means that the government has determined that whatever threat a detainee is believed to pose can be mitigated by some means short of detention---and that it has decided that the policy advantages of a release outweigh the risks. It is a prudential judgment, not a character judgment or an adjudication on the merits. And it is not necessarily an injustice to be cleared for release and then not released.
Yet scrub away all the myths, and Latif's death is still tragic. It is tragic because even if his detention was justified under the law, nobody wanted it. A great many Saudis more dangerous than Adnan Latif had gone home a long time ago. And a great many Yemenis remain at Guantanamo not because of any judgment that they individually pose some great menace but because the situation of Yemen itself makes repatriations so difficult; to release detainees there is really to lose any possibility of control over their later activity. Latif and many other Yemenis remained at Guantanamo because the administration determined that it was lawful to hold them and that, if released, some unacceptable percentage of them would do something horrible.
But here's the rub: I don't know of anyone who really thinks that percentage was likely to have included Latif---a guy whose mental state was fragile, who had suffered a head injury, and who seems to have had a long history of self-injury and suicide attempts. I suspect that had Congress not eventually made it virtually impossible to transfer people from Guantanamo, Latif would not have remained in custody until his presumably self-inflicted death.
I am not romantic about the detainee population at Guantanamo---not at all. I'm not even romantic about Adnan Latif. But I do think we need to make hard-headed decisions about which detainees we really want to hold. And when we come upon one whose detention really isn't necessary, it may be better not to think about it mostly in terms of legal principle, or in terms of the bilateral relationship with a mess of a quasi-ally from which he hails. It it certainly better not to pass blunt-instrument laws that require, to release him, a certification from the Secretary of Defense of that he has a love of his fellow man that out-Gandhis Gandhi and that the word "recidivism" has never been uttered in his native land because the concept is unknown. It may be better just to let a sick man go---before he turns up dead in his cell.