Latif: The Administration Blew Up Habeas with a Detainee They Determined Could Be Transferred

There are a few more details that need to be readily available about Adnan Farhan Abd al Latif, the Yemeni Gitmo detainee whose habeas corpus petition led DC Circuit Judges Janice Rogers Brown and Karen Henderson to gut habeas. Most importantly, almost two years before the Administration used an unreliable intelligence report to justify his detention, the Bush Administration had determined he could be transferred out of DOD control.

DOD Recommended Transfer of Latif in 2006

Latif’s Gitmo file makes that clear.

JTF-GTMO recommends this detainee for Transfer Out of DoD Control (TRO). JTF-GTMO previously recommended detainee for Transfer Out of DoD Control (TRO) on 18 December 2006.

So on December 18, 2006, DOD determined they should transfer of Latif. On January 17, 2008, they determined they should transfer of Latif. (This is a point Judge Henry Kennedy made in his ruling, citing slightly different documents.) Presumably in January 22, 2010, Latif was among the 30 Yemeni detainees the Gitmo Task Force determined designated for “conditional” detention:

30 detainees from Yemen were designated for “conditional” detention based on the current security environment in that country. They are not approved for repatriation to Yemen at this time, but may be transferred to third countries, or repatriated to Yemen in the future if the current moratorium on transfers to Yemen is lifted and other security conditions are met.

The Bush Administration had designated 15 detainees for transfer; the Obama Administration transferred 6 of those in December 2009, before the UndieBomber attack, Mohammed Odaini got sent back in 2010 after winning his habeas petition, and one more Yemeni got transferred to a third country. Which suggests that Latif is among the unlucky 7 detainees whom both the Bush and Obama Administrations believe could be sent home, if it weren’t for the security situation in Yemen.

In other words, Latif remains in Gitmo because our partner in Yemen, Ali Abdullah Saleh, doesn’t control the country, and because Umar Farouk Abdulmutallab tried to blow up a plane, not because Latif himself represents a big threat.

Nevertheless, the Administration insisted on making a case, based on a dodgy intelligence report, to legitimize their continued detention of a man whom they had already decided could be transferred.

TD-314/00684-02 Is the Document Being Used to Hold Latif

As I laid out here, they did so primarily with an intelligence report from early 2002 that sorted through a large number of detainees turned over to the US by Pakistan in late 2001.

By comparing Latif’s Factual Return to his Gitmo File, we can be almost certain that this report is the cable numbered TD-314/00684-02. Here are the files both documents–the Factual Return and the Gitmo File–reference in unredacted form, with the information cited to that document.

March 6, 2002, ISN 156 SIR: Said he was not Bangladeshi, lived in Ebb, some high school, odd jobs. Hadi took him to hospital in Jordan. Began traveling to Afghanistan summer 2001. Traveled Sanaa to Karachi to Quetta to Kandahar. Once in Kandahar went to mosque to find Ibrahim. Stayed with him 3 days. Captured travling to Pakistani border in December 2001. Surrendered so as to be taken to Yemeni Embassy to go hom. Used Al Jallil, Hady was medical person.

April 26, 2002, ISN 156 FD-302: Said born in Yemen around 1981. Used Al Galeel. 16 at time of accident.  Had some high school, worked odd jobs.

May 29, 2002, ISN 156 FD-302: Indicated “Latif” was family name. Lived in Ebb. Lived with family in al-Udayn. Used Galeel as a name. Unable to afford further treatment in Jordan. Traveled from Sanaa to Karachi to Quetta to Kandahar. 14 at time of accident.

May 29, 2002, ISN 156 SIR: Lived in Ebb. “Lied” about being Bangladeshi in past. 16 at time of accident.

October 4, 2002, ISN 156 FD-302: Used Galel.

May 18, 2003, ISN 156 FD-302: Denied being al Baydani (the name on a KSM-related register). Described who arranged trip to Jorden. Gave passport to Alawi so he could check him into hospital.

June 16, 2004, ISN 156 Assessment: Said something about passport.

July 25, 2005, ISN 156 Interrogation: Claimed Allal was name of someone else captured.

In addition to these documents, there’s a February 2002 “Knowledgeability Brief,” a January 9, 2004 report, and CSRT-related documents cited in his Factual Return, and a June 13, 2003 report and transcripts from a Yemeni delegation dated July 2, 2005. But the most cited reports–those listed above–appear in both Latif’s Gitmo File and his Factual Return. Save one document, references to which are redacted, said to include his admissions, and covering things like his birth, how he met Alawi, and presumably the bulk of the redacted paragraphs in the Factual Return.

We know the government claims to show Latif fought with the Taliban in those paragraphs. But as I have shown, all the information in Latif’s Gitmo file relating to fighting with the Taliban derives entirely from TD-314/00684-02. So it’s almost certain the Administration relied on the same document in the Factual Return they relied on in his Gitmo report.

Note, too, this is consistent with something Kennedy wrote in his ruling. He describes the kinds of evidence cited to support Latif’s detention.

The evidence in this case includes Form 40s (“FM40s”), Summary Interrogation Reports (“SIRs”), Intelligence Information Reports (“IIRs”), Memoranda for Records (“MFRs”), Field Documents (“FD-302s”), and [redacted].

We’ve seen reports of all those types cited in unredacted form, so the last item in that series must be another type of report, as a TD cable would be.

TD-314/00684-02 Reported that Latif Was Bangladeshi

I noted this detail in this post, but the point deserves more attention. Latif’s Factual Return notes that some of the records on him use an ISN indicating he is Bangladeshi.

Ala’dini’s full ISN is ISN-US9BA-00156 (DP), in which the number 156 is Ala’dini’s unique identifier and the BA designation indicates the nationality that Petitioner for a time had claimed. See ISN 156 Knowledgeability Brief (Feb. 2002); ISN 156 SRI (May 29, 2002) (indicating petitioner repeatedly lied about his country of origin (Bangladesh) and gave a fake name in all past interviews). Petitioner Ala’dini, to be clear, has since claimed that he is a national of Yemen. E.g., ISN 156 ISN 156 SIR (March 6, 2002).

So Latif told the US he was Yemeni on March 6, 2002, which appears to be his first substantive interview of him after he arrived in Gitmo on January 17, 2002. We know TD-314/00684-02 precedes that because the Appeals Court Opinion describes that it was written in the “fog of war,” whether in Pakistan or Kandahar. So the notion that Latif was Bangladeshi must derive from the interview that formed the basis for TD-314/00684-02.

Now, the government claimed Latif lied about his nationality. Though note that the report they cite for that claim is a DOD report written on May 29, 2002. An FBI 302 with the same date is not cited to support that claim. Did DOD and FBI interview Latif together? If so, why did the DOD interrogator conclude he was lying without the FBI Agent doing so (if that is the case)? (Note, the reports also have a seeming discrepancy on what age Latif was when he had his accident, though in his CSRT Latif makes clear he wasn’t tracking these things in Western timeframes and even in his CSRT there was a confusion over timing due to his translator.) In addition, there’s a redacted reference right after the Factual Return says Latif was born in Yemen. Is that redacted reference to TD-314/00684-02 as seems to be the case for most of these redacted references? If so, how could Latif have told interrogators he was born in Yemen and traveled from Sanaa, but have them record that he’s Bangladeshi?

Now, it’s possible someone would lie about being Bangladeshi as a way to explain foreignness in Pakistan without admitting to being an Arab (even assuming interrogators couldn’t tell the difference based on appearance). But as the Gitmo File of Mubarak Hussain Bin Abul Hashem–one of just two Bangladeshis ever held at Gitmo–makes clear, none of the other detainees captured with Latif were or appear to have claimed to be Bangladeshi.

In late 2001 and early 2002, a total of 195 detainees in Pakistani custody were interviewed in Peshawar and Kohat, PK, by teams composed of US interrogators. On 4 January 2001, the detainee [Hashem] was turned over to US custody. Out of the 195 detainees captured and turned over to US custody by Pakistani authorities, the detainee was the only one from Bangladesh. The rest were Arab mujahideen attempting to flee Afghanistan and US troops.

Moreover (and this is the part that boggles my mind), how could you conduct an interrogation, presumably in Arabic, believing the subject was from Bangladesh, and be credible? While it’s possible a religiously educated Bangladeshi would speak Arabic, the language of the Quran (Hashem, who was trained in a madrassa and then a Quran school might be such a Bangladeshi), you’d still want to do the interview on secular issues in his native tongue, wouldn’t you? Did they interview Latif in Urdu or Pashto (languages which it seems unlikely he’d speak, as a high school educated Yemeni who had spent just months in Afghanistan)? Or Arabic, his own language?

I just don’t understand how it’s possible to record that Latif was Bangladeshi and have the interview be treated as credible.

Now, I suspect that this issue is one of the three redacted things David Tatel’s dissent lists as the obvious factual errors in the report. Indeed, the syntax would be consistent with him making the same observation I just did, that you couldn’t record that Latif was born in Yemen and traveled from Sanaa and yet also conclude he was Bangladeshi (though given how extensive the redaction is, it could be any of a number of things).

But it seems to me the Bangladeshi detail, whether a result of Latif lying or–more likely–a result of real confusion on the part of interrogators trying to sort through 195 detainees with no documentation, goes right to the heart of whether this document should be treated with a presumption of regularity. I simply can’t think of any way an interrogator could record that Latif was Bangladeshi, for whatever reason, and at the same time have conducted a credible interview.

Yet, in spite of all that, the Administration argued they could detain Latif on the basis of this report alone. And Judge Janice Rogers Brown said they should be allowed to do so.

The writ of habeas corpus is being gutted in this country because the Administration holds a bunch of Yemenis against whom they don’t have credible evidence, but also don’t have a safe place to send them. This is not about evidence and the law, but about a civil war in one of our allies’ countries. And for that we’re dismantling the legal guarantees our Constitution guarantees.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

14 replies
  1. MadDog says:

    A couple questions for our resident Legal Eagles:

    Since the US Court of Appeals for the District of Columbia Circuit’s Latiff decision “remanded” the case back to the District Court so it “can evaluate Latif s credibility” (and not the credibility of the government’s report), my questions are:

    1) Can Latiff’s attorneys, the appellees, request that the entire US Court of Appeals for the District of Columbia Circuit review this decision En Banc?

    2) Can Judge Henry Kennedy, the DC District Court judge who originally granted the Latif writ of habeas corpus, in the now remanded case do the required “evaluation” and then simply reaffirm his original ruling or is that outcome no longer an option?

    What I’m asking here is whether the US Court of Appeals for the District of Columbia Circuit’s opinion has rigged the Latif case so that the only outcome of the remand to Judge Henry Kennedy is an outcome of no habeas corpus.

    I’m trying hard to see how Judge Henry Kennedy is left with any other option, and if there is no other option, isn’t the remand itself merely Kabuki on the part of the US Court of Appeals for the District of Columbia Circuit?

  2. Jim White says:

    @MadDog: What I found interesting about that article is that the timing for when Headley was arrested and then spent 15 days spilling his guts was exactly when Raymond Davis was sent to Lahore to investigate Lashkar. Was Davis sent there to “clean up loose ends?”

    And on the Husain Haqqani story, the Express Tribune reports that if Haqqani is cleared in the investigation over the memo, he might be restored to his position as Ambassador.

  3. emptywheel says:

    @MadDog: Kennedy just quit, with little notice (yes, about the time this opinion became public). So when it gets remanded, a different judge gets to look at it.

    Wittes is pushing hard for this to get reviewed by the whole circiut.

  4. MadDog says:

    @emptywheel: Wow! Whether Kennedy quit as a result of this decision I suppose is unknown, but it sure smells fishy.

    Per my comment at #1, it sure seems like the remand leaves little option left but to deny habeas.

    I don’t know whether the entire circuit will take up the review, but this piece in the Bellingham Herald (originally from the Baltimore Sun) might provide the smallest glimmer of hope:

    Conservative federal appeals court shifts left

  5. MadDog says:

    @Jim White: There is definitely more to the Davis story than has yet been revealed.

    As to Haqqani getting his job back if cleared by the investigation, that sounds more like wishful thinking on somebody’s part.

  6. JohnLopresti says:

    Mostly off topic,
    interesting article about judge Kennedy and judge Urbina, who both retired around the same time, there. Nice photos of each judge. Condensed history of judge Kennedy’s time on bench mentions his work adjudicating the millions of erased or lost emails from Bushco. Urbina did work on one of the mercenary cases.

    Also, there was an interesting article in 2010 by Marcia Coyle describing some analysis of how the DCDC bench was navigating habeas cases; there. One of the cases discussed includes some interesting reflections upon certiorari chances and potential Scotus argument, as well as mention of the geopolitics of gtmo.

  7. Mary says:

    Agreed that a lot of it is about the Yemeni civil war, but a lot of it is also about mental illness and torure. A lot of the yemenis weren’t captured in Yemen or plotting wih regard to yemen. But the core of the “informants” supporting the detentions (and further torture of) the Yemenis were subjected to torture for a substantial period of time and were either already mentally ill while being tortured or became so after. Iirc, the guy who was the informant against many has actually now been shipped off (Spain maybe) because of his multiple attempts at suicide by beating his own head repeatedly against walls. I always thought he was the guy Warden claimed (to Sullivan maybe? Can’t remember the judge) the Doj did not have to give info on his mental illness to the defense despite a court order because he was impeachable for so many other reasons anyway. So now, with him gone and beyond reach, how much more difficult is it for the defense counsel to challenge the accuracy of these gov reports relying on evidence from the man who has now been disappeared to another country and whose torture and mental illness were used to pad most of those reports. I don’t think they find the civil war to be nearly as much an issue as how freakin horrible the stuff in the Yemeni files really is. Fruit of torture to fruit of mental illness to fruit of more torture, all used to keep Yemenis for years stretching to a decade, even when the only real intel for many of them alway indicated they should have been released immediately after their misdirected, $ based captures, often in Pakistan.

  8. emptywheel says:

    @Mary: That’s true of other Yemenis. But in Latif’s case, the only insanity they’re hiding is his. No other detainees IDed him at all. There’s just this report.

  9. allan says:

    @MadDog: Re: the Frontline piece tonight.
    The level of DEA/FBI duplicity/incompetence is stunning.
    Another feather in Robert Mueller’s cap.

  10. Timbo says:

    OT sort of

    Marcy, here is an article about what is happening in Britain with many, many cases of torture and abuse within the British sphere in Iraq.

    I mention this because it seems that there may be an outside chance that some of these tortured prisoners of the British…who may all soon be getting their day in court and a public investigations of the war crimes committed by the British military police in Iraq…some of those victims of abuse may have been in American custody at some point and may also have had American interrogators at some point. Since many of these torture sessions were recorded on video, perhaps there will be some headway against American war crimes through the British cases. Farfetched? Yeah. But at least there is some hope of it happening, however small…

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