Last week, Adnan Farhan Abdul Latif died at Guantánamo Bay, after 10 years of imprisonment by the United States without charge. He had been cleared for transfer three times, and ordered released by a federal district court judge. Despite the military clearing him for transfer, our government fought the judges’ order to release Mr. Latif, effectively condemning him to die in custody despite having never been charged with a crime.
Three months ago, The Supreme Court refused to hear Mr. Latif’s case, along with that of six other cases brought by men challenging their indefinite detention. Instead, the Court allowed judges from the DC Circuit court to continue to eviscerate the Supreme Court’s 2008 decision in Boumediene v. Bush, which guaranteed the men at Guantánamo a “meaningful opportunity” to contest their imprisonment.
A dissenting judge in Mr. Latif’s case before the DC Circuit court noted that his colleagues came “perilously close to suggesting that whatever the government says must be treated as true.” He further observed that “[n]ot content with moving the goal posts, the court calls the game in the government’s favor.”
Adnan Latif’s death at Guantánamo was not only a consequence of the failure of the courts, but also a result of a Congress -- which has blocked any transfers from Guantánamo -- and a president who is unwilling to expend the political capital to uphold his repeated campaign promises to close the prison. Documenting what had long been apparent, the New York Times reported that:
… the president turned to his national security adviser at the time, Gen. James L. Jones, and admitted that he had never devised a plan to persuade Congress to shut down the prison.
The legislation that severely restricted the ability of the executive branch to transfer prisoners, including Mr. Latif, from Guantánamo, The National Defense Authorization Act (NDAA), is the same annual legislation struck down in part by a federal judge last week for requiring the military to indefinitely detain anyone, even Americans, suspected of terrorism without trial.
The president signed the 2011 NDAA but promised to oppose the restrictions on prisoner transfers in the future. However in 2012, he signed a bill that contained heavy restrictions on prisoner transfers and also authorized domestic military detention. With it he submitted a new statement promising to reserve discretion when using military detention and pledging to not detain American citizens indefinitely without trial. Obama’s track record on upholding these types of promises aside, the statement does nothing to change the law or bind future administrations.
Not content to rely on the administration’s weak promises, a group of activists, intellectuals and journalists recently secured a permanent injunction from a federal district court judge, prohibiting the government from relying on the NDAA for indefinite military detention. The Department of Justice almost immediately challenged the ruling.
The 2013 version of the NDAA will likely come before congress near the end of the year. Its particular provisions remain to be seen, but the need for vigilant public attention is certain.