As of today, the results of the Guantánamo prisoners’ habeas corpus petitions stand at 38 victories for the prisoners against 15 victories for the government, after two recent rulings. On July 21, Judge Henry H. Kennedy Jr. granted the habeas petition of Adnan Farhan Abdul Latif, a 34-year old Yemeni, while, in another courtroom, Judge Reggie Walton denied the habeas petition of Abdul Rahman Sulayman, a 31-year old Yemeni.
The judges’ unclassified opinions are not yet available, so their reasoning is not yet known, but the rulings prompt three immediate responses: firstly, that Adnan Farhan Abdul Latif, whose suicide attempts and mental illness have been apparent for many years, should be released immediately; secondly, that this is unlikely, given the Obama administration’s unjustifiable moratorium on releasing any Yemeni prisoners, even those who have won their habeas petitions; and thirdly, that the ruling in Abdul Rahman Sulayman’s case can only be construed as a victory for the government when viewed through very narrow parameters.
Adnan Farhan Abdul Latif’s victory
For Adnan Farhan Abdul Latif, Judge Kennedy’s ruling appears to vindicate what his lawyers have maintained for years: that he is an innocent man who had sought medical treatment in Afghanistan. As one of his lawyers, David Remes, explained after the ruling, “This is a mentally disturbed man who has said from the beginning that he went to Afghanistan seeking medical care because he was too poor to pay for it. Finally, a court has recognized that he’s been telling the truth, and ordered his release.”
gon Ab Aljallil Allal or Allal Ab Aljallil Abd Al Rahman Abd) stated that he had sustained a serious head injury in an automobile accident in 1994, and had spent years trying to find affordable medical treatment. After being told about the health-care office of a Pakistani aid worker in Afghanistan who would treat him, he said that he traveled to Afghanistan in 2001, and explained that, when the U.S.-led invasion began, he fled to the border town of Khost and then made his way into Pakistan, where he was arrested by Pakistani forces, along with about 30 other Arabic-looking men. He told his lawyer, Marc Falkoff, that he later learned that each of them had been turned over to the U.S. military for a bounty of $5000.
In his tribunal at Guantánamo, Latif appeared bewildered, refuting what he believed was an allegation that he came from a place called al-Qaeda by saying, “I am from Orday City in Yemen, not a city in al-Qaeda. My city is very far away from the city of al-Qaeda,” which perhaps reinforces his claim that he had traveled to Afghanistan to receive treatment for a fractured skull.
In an analysis of his client’s case in 2007, Marc Falkoff pointed out that the authorities alleged, in the unclassified summary of evidence against Latif, that he was “an al-Qaeda fighter,” that in 2000 he “reportedly traveled from Yemen to Afghanistan” and “reportedly received training at the al-Farouq training camp,” and that in April 2001 he “reportedly returned to Afghanistan” and “reportedly went to the front lines in Kabul.” He added, “[W]hen I first saw the accusations, I thought they looked serious [but] when I looked at the government’s evidence, I was amazed. There was nothing there. Nothing at all trustworthy. Nothing that could be admitted into evidence in a court of law. Nothing that was remotely persuasive, even leaving legal niceties aside.” At most, he added, “there was incredibly unreliable hearsay, often taken from other detainees who were — in the words of a military representative — ‘known liars,’ or else whom we now know to have been tortured.”
Despite this, the authorities in Guantánamo attempted — initially, at least — to portray Latif as a devious al-Qaeda operative who had been trained to resist interrogation (as they did, to be honest, with numerous other men seized in a random manner, many of whom were innocent). Prior to his tribunal hearing at Guantánamo in 2004, convened to confirm that he had been correctly designated as an “enemy combatant” who could be held without charge or trial, his Personal Representative (a military officer assigned in place of a lawyer) noted that he “[r]ambles for long periods and does not answer questions” and “[h]as clearly been taught to ramble as a resistance technique.”
Latif’s suicide attempts and probable schizophrenia
In fact, as later became apparent, Latif was unwell. In August 2008, Marc Falkoff filed an “Emergency Motion to Compel Access to Medical Records of Petitioner Adnan Farhan Abdul Latif and for Other Miscellaneous Relief” (PDF). The motion was triggered because Latif had been prevented from having a blanket and a mattress in his cell, even though he was in a very poor state, and Falkoff wrote that he “visited with Mr. Latif yesterday at the Guantánamo Bay military prison and fears that Mr. Latif — whose body weight has dropped in the last six weeks from 145 to approximately 107 pounds — is near death.” He added, “Mr. Latif is not on a hunger strike, and the cause of his alarming weight drop appears to be unknown,” and also stated, “Mr. Latif is also manifesting signs of schizophrenia, for which he is apparently not being treated.” Falkoff reinforced this observation elsewhere in the motion when he declared that the government had “been aware for years that Mr. Latif suffers from serious psychological problems, apparently including schizophrenia.”
Even so, the authorities were reluctant to abandon their portrayal of Latif as a conscious troublemaker, as is demonstrated by the following notes in the summary of evidence for his military review board in March 2005:
Detainee’s overall behavior has been non-compliant and aggressive. Detainee does not comply with guards instruction. Detainee continues to talk between the blocks. Detainee also has multiple occurrences of causing damage in his cell. Detainee has shown by his actions that he has little regard for the rules of the cellblock and does not respect his fellow man.
In fact, far from demonstrating deliberate non-compliance, Latif was in such a precarious mental state that he attempted to commit suicide on a number of occasions. In an appeal issued in May 2009, Amnesty International noted that he had “attempted suicide several times since September 2008,” and that he “told his lawyer that on one occasion in November 2008, he tried to hang himself twice in one day.” The Amnesty report added, “At least one of these attempts was confirmed to his lawyer by an official at Guantánamo.”
Amnesty’s appeal was triggered in particular by a suicide attempt that took place on May 10, 2009, when he cut one of his wrists during a meeting with one of his lawyers, David Remes. After the incident, Remes explained that Latif “chipped off a piece of the stiff veneer on the underside of our conference table and used it to saw into a vein in his left wrist.… As he sawed, he drained his blood into a plastic container and, shortly before it was time for me to leave, he hurled the blood at me from the container.” As Amnesty also explained, “A spokesman at Guantánamo confirmed the incident took place but said it could not be classified as a suicide attempt.”
Amnesty also noted that Latif had been “held in solitary confinement in the psychiatric ward at Guantánamo since at least November 2008,” and that he told his lawyers that “when he is awake he sees ghosts in the darkness, hears frightening voices and suffers from nightmares when he is asleep.” He also told his lawyers that he had “ingested all sorts of materials including garbage bags, urine cups, prayer beads, a water bottle and a screw,” that he had “eaten his own excrement and smeared it on his body” and that he had “used his own excrement to cover the walls of his cell door, the camera on the ceiling of his cell and the air vent in his cell.”
In addition, Amnesty noted that Latif reportedly suffered from “a number of physical health problems, including a fractured cheekbone, a shattered eardrum, blindness in one eye, a dislocated shoulder blade, and a possibly dislocated knee.” Latif also said that he suffered “constant throat and stomach pain which [made] it difficult for him to eat,” but that, instead of dealing with this in an appropriate manner, the authorities strapped him in a restraint chair and force-fed him up to three times a day through a tube pushed up his nose into his stomach.
Just two months ago, Amnesty International issued another appeal, and noted little improvement in the intervening 12 months, stating that Latif was “held in isolation,” and that in March this year he told his lawyer that he “continues to be subjected to ill-treatment and indicated that he feels suicidal.” At the time, Latif was held in isolation in Camp 5, which, as Amnesty explained, “holds the few remaining hunger strikers at Guantánamo” and others, like Latif, who had once been on hunger strike but had abandoned that particular response to the conditions in which they were held. Amnesty noted that the majority of the remaining prisoners were living in communal conditions in Camps 1, 4, and 6, but that, although Latif’s lawyers had asked the authorities to move him to one of the other camps, they had had no response.
In a letter to his lawyers in March 2010, Latif stated that he was regularly subjected to violent assaults by the Immediate Response Force (IRF), a group of guards who punish even the most minor transgressions with disproportionate violence. “IRF teams enter my cell on [a] regular basis,” he wrote in his letter. “They throw me and drag me on the floor … two days before writing this letter [the IRF team] strangled me and pressed hard behind my ears.… I lost consciousness for more than an hour.” He added that the circumstances in which he was living “makes death more desirable than living.… I find no taste for life, sleep or rest.”
Abdul Rahman Sulayman loses his habeas petition
From the publicly available information about Abdul Rahman Sulayman, whose habeas petition was denied by Judge Reggie Walton, it appears that he was one of several Guantánamo prisoners who were recruited by Ibrahim Baalawi (also known as Abu Khulud), allegedly a facilitator for Osama bin Laden, who, as I explained in The Guantánamo Files, “escaped from Tora Bora and would clearly have been a much bigger catch than any of the foot soldiers rounded up instead.”
In Guantánamo, Sulayman claimed that Baalawi recruited him under false pretences with tales of the good life in Afghanistan. He “promised me that I’d be able to get married in Afghanistan. He may have had different intentions for me other than the marriage, but I didn’t know,” he told his tribunal, adding that he was also told, “you can go to certain counties and they’ll give you a house, even if it’s an old house, and some financial assistance to get married. That’s without having to contribute anything at all. It’s a charity type of thing from these people. If you put yourself in my shoes, what would you do?”
This was not the whole story, as Sulayman also conceded that, after arriving in Afghanistan in March 2001, he stayed in Kabul for seven months, and then, when given the opportunity to go to the front lines or the second lines or to return home, he went to the second lines because he didn’t want to fight but he also didn’t want to return home. It was there, he said, that he received some weapons training, and later, after the U.S.-led invasion began, he fled to Pakistan in the company of men that he didn’t know, where he was seized and handed over to U.S. forces.
This, presumably, was enough for Judge Walton to conclude that he had been “part of” al-Qaeda or the Taliban, which is all that is required for the prisoners to lose their habeas petitions, even though much of the other supposed evidence was demonstrably false, and almost certainly produced by unreliable witnesses, either in Guantánamo or in other U.S.-run prisons. These included ludicrous allegations that he was identified as a mortar instructor from a video made in the Tarnak Farms training camp in 2000 (before he arrived in Afghanistan), that he “was identified as an al-Qaeda spokesman and was part of Osama bin Laden’s entourage … during the escape from Tora Bora,” and that he was identified as a Taliban prison guard “who used torture techniques on inmates under his control.”
No escape from Guantánamo for either man
While Adnan Farhan Abdul Latif’s successful habeas corpus petition should lead to his immediate repatriation from Guantánamo, this is unlikely given the moratorium on releasing any prisoners to Yemen — even mentally ill prisoners whose release has been ordered by a U.S. court — that was announced by President Obama in January, following the discovery that the failed Christmas Day plane bomber, Umar Farouk Abdulmutallab, had been recruited in Yemen.
As I have maintained ever since the moratorium was announced, this was a cowardly and unjust move on Obama’s part, conceived and executed in response to sustained hysteria from lawmakers and the media, when what was actually required was a leader prepared to stand up to his critics, and to point out that refusing to repatriate Yemenis in Guantánamo — even if they had been cleared for release by President Bush, by Obama’s own Guantánamo Review Task Force, and/or by a U.S. court — only sent out one message: that everyone in Yemen was a potential terrorist, and that guilt by nationality was an acceptable reason for refusing to release any of these men.
In the Obama administration’s compromised, pragmatic world, the absurdity of continuing to hold 59 Yemenis cleared for release by the Task Force (including some or all of the other three men who won their habeas petitions, but are still held) apparently means nothing, even when, as has become apparent in the last few months, the moratorium has obliged the Justice Department to challenge the habeas corpus petitions of prisoners whom the administration has already conceded it has no reason to hold.
The only exception, to date, has been Mohammed Hassan Odaini, a student seized in Pakistan, whose wrongful arrest was so blindingly obvious that the administration was unable to contemplate holding him any longer. Distressingly, the administration also attempted to justify his release by noting that he came from a good family, and as a result Adnan Farhan Abdul Latif may have to reflect that, despite his victory, he will only be released if his story causes the mainstream media to pay attention, and if he comes from a good family.
As for Abdul Rahman Sulayman, he joins the small group of other prisoners (14 at present), who have lost their habeas petitions, and are consigned to endless detention at Guantánamo on an apparently legal basis, even though he and the majority of those 13 men were minor players in a military conflict that had nothing to do with al-Qaeda, the 9/11 attacks, or other acts of international terrorism, and who should, therefore, have been held as prisoners of war according to the Geneva Conventions, rather than being held as a unique category of human being in an experimental prison established to hold “the worst of the worst.”
In Sulayman’s case, it would appear that his ability to challenge his detention has come to an end until someone in authority decides that the legislation justifying his detention — the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks — is inappropriate, and that the men held at Guantánamo are either soldiers, or criminal suspects involved in terrorist activities, rather then the “enemy combatants” conjured up by the Bush administration. He has the right to appeal, of course, but as recent rulings by the D.C. Circuit Court have shown, the majority of judges dealing with the prisoners’ appeals are not only unconcerned by these questions, but are actually dedicating themselves to eroding the District Court’s ability to grant prisoners’ habeas petitions by attempting to lower the already low burden of proof required by the government to win its cases in the first place.
With the Circuit Court in such aggressive form, not only does Abdul Rahman Sulayman stand little chance of winning an appeal, even though there is no evidence that he ever raised arms against U.S. forces, but even Adnan Farhan Abdul Latif’s successful habeas petition could be overturned, consigning a mentally ill man to the kind of ongoing detention that would make Obama’s unprincipled moratorium irrelevant.