US: Death at Guantanamo Underscores Need to Close Facility

The death of a detainee at Guantanamo Bay on September 8, 2012, underscores the need for the United States government to either charge detainees in civilian court or release them. The death of Adnan Latif, a Yemeni who suffered severe emotional distress and had attempted suicide several times, highlights the suffering experienced by people serving long-term indefinite detention without trial.

"The death of yet another detainee should draw the world's attention to the ongoing tragedy of indefinite detention without trial at Guantanamo," said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch. "The Obama administration should follow through on its longstanding promise to close Guantanamo."

Latif was first detained by Pakistani military authorities in late 2001 and sent to Guantanamo in January 2002. In 2004, Latif told a US military review board that he went to Pakistan for medical treatment for injuries he had suffered in a car accident and later to Afghanistan. The board rejected his plea to search for medical records that would support his account. 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.

As early as 2004, US Defense Department officials recommended Latif's release, acknowledging that he took no part in any terrorist training. In 2007, Bush administration officials also recommended his release. Yet Latif and his lawyers did not receive this information until it was disclosed in federal court proceedings in 2010.

During his detention, Latif indicated he was experiencing severe hardship. In May 2010, before he even knew about the prior release recommendations, he wrote to his lawyer: "You are still looking for justice and seeking hearings [while] I am being pushed toward death." Latif frequently engaged in hunger strikes, during which military personnel would force-feed him through a tube forced down his nose. His lawyer described arriving for legal visits and finding him emaciated, wearing a protective "suicide smock."

"It is hard to imagine the suffering these men undergo after 10 plus years of detention without an opportunity for a criminal trial," Prasow said. "Whether US lawmakers realize it or not, Guantanamo remains a serious obstacle to promoting human rights abroad."

Following a challenge to the lawfulness of Latif's detention, in 2010 US district judge Henry Kennedy, Jr., ordered Latif released, finding his story "plausible." But instead of returning Latif to his home country of Yemen or seeking his resettlement in a third country, the Obama administration appealed the order to the DC circuit court, which in 2011 reversed Judge Kennedy's decision.

The DC appeals court's ruling not only affected Latif's case, but also severely undercut the ability of other Guantanamo detainees to challenge their detention. It held that government evidence should be afforded a "presumption of regularity" requiring lower court judges to presume the accuracy of evidence obtained by government officials. This included information obtained in chaotic battlefield settings, unless there was clear evidence to the contrary, effectively shifting the burden to the detainee to prove that the evidence was false or unreliable. In June 2012, the Supreme Court decided against hearing the case, leaving the appeals court's ruling the law governing Guantanamo detainee cases.

Following Latif's death, 167 detainees remain at Guantanamo. Only six of them are facing active charges. Previously, the Obama administration had approved 57 of the remaining detainees for transfer, with an additional 30 Yemenis conditionally approved for transfer. Forty-eight detainees were initially recommended for ongoing indefinite detention; two of those original 48 have since died. Information on which detainees were designated for transfer and which were designated for ongoing indefinite detention has not been made public. Following the so-called Christmas Day airliner bombing attempt in December 2009 by Umar Farouk Abdulmutallab, a Nigerian who had trained in Yemen, the administration imposed a moratorium on transfers to Yemen.

In 2010 and 2011, Congress imposed restrictions on the transfer of detainees out of Guantanamo, requiring the administration to sign certifications detailing the release plans and indicating that appropriate steps had been taken in the receiving country to mitigate any risk the return might pose. The administration has yet to provide such a certification in any case. In April 2012, two Uighur detainees - previously determined to be detained unlawfully - were resettled to El Salvador and in July 2012 Ibrahim al Qosi was returned to his native Sudan under the terms of his plea agreement in a military commission. Both these transfers fell within statutory exemptions to the certification requirement.