Emptywheel on <em>Latif</em>---and Wittes

Over at the Emptywheel blog, the estimable Ms. Wheel does not like my reflections on Adnan Latif from the other day. She opens:

I’d like to take issue with Ben Wittes’ post on the sadness of Adnan Farhan abd al Latif’s death. I certainly agree with Wittes that Latif’s death is terribly sad. But I object to Wittes’ take on three related grounds. Wittes,

• Provides a problematic depiction of the justification for Latif’s detention
• Misstates the importance of Latif’s clearance for release
• Assigns responsibility for Latif’s continued detention to the wrong people

Wittes tries hard to downplay how much Latif’s death in custody damns Gitmo. But he does so by obscuring a number of key facts all while accusing Gitmo foes of building up “myths.”

Her piece is long and detailed. I am going to respond, however, only briefly. Marcy is certainly correct that my citation of Latif's head injury---the fact of which is undisputed---reflects some degree of uncertainty on my part as to what he was doing in Afghanistan. She is also correct that I hedged my language about how to read the evidence in the case precisely because I don't know the best way to piece it together. I have my instincts; she has a different set of instincts. And the evidence clearly divides the judges who have heard the case. For what it's worth, as I have said, if I had to judge this case on a preponderance standard (which is about likelihood, not certainty), I would probably have held Latif detainable (though had I been an appellate judge reviewing Judge Kennedy's decision, I would have affirmed that decision). And I don't think---as Marcy argues at length---that my brief mention of Latif's head injury on a list of reasons to take his mental state into account especially contradicts that. Marcy also thinks that Latif's inclusion on the Gitmo task force's list of Yemenis cleared for transfer means that the government had concluded it could not justify his detention. I do not think that's right. It may well mean that the government considered itself as bearing considerable litigation risk in the case. But the government has actually been smart and strategic about which habeas appeals to pursue and when to simply comply with district court orders requiring the release of detainees. In several cases---where the government believed its position was weak on appeal or where it wished to pursue a transfer anyway---it simply complied with district court habeas orders. In Latif's case, by contrast, it appealed---thereby risking establishing what, from its point of view, would have been adverse precedent at the D.C. Circuit level. Its decision to do this, in my view, reflects at least some measure of confidence that the evidence supported the detention. While I wish the government had not taken the appeal, I don't think it's right to conclude, as Marcy does, that the government disbelieved that the evidence would not support Latif's detention. Finally, Marcy takes me to task for blaming Congress for the Latif situation, instead of blaming Obama. And she's right that Obama slapped a moratorium on repatriations to Yemen---the reason Latif never went home---even before Congress passed the transfer restrictions. I have no desire to argue this point. I sympathize far more with Obama's problem in managing the Yemen relationship, the security environment there, and the need to handle the residual Yemeni detainees than I do with Congress's blanket transfer restrictions. But Marcy is certainly entitled to be more offended by Obama's unwillingness to transfer Yemenis than by Congress's unwillingness to let him---and to think me soft on the President.