The Lawyers that Stayed, the Lawyers that Left

Charlie Savage covers a very troubling development in the case of Ali al-Bahlul, a Yemeni who is serving a life sentence for serving as Al Qaeda’s videographer.

After Hamdan had his conviction vacated by the DC Circuit last year because material support was not a war crime at the time of his support for al Qaeda, Bahlul’s conviction was put in jeopardy too. As Savage earlier reported, there was a debate among the national security lawyers. And in spite of the fact that almost everyone disagreed with Eric Holder on this count, Holder made them press forward anyway.

The Obama administration, after a high-level debate among its legal team, told a federal appeals court on Wednesday that the conviction of a Guantánamo Bay prisoner by a military commission in 2008 was valid even though the charges against him — including “conspiracy” and “material support for terrorism” — were not recognized as war crimes in international law.

Attorney General Eric H. Holder Jr. decided to press forward with the case, fighting the appeal of a guilty verdict against the prisoner, a Yemeni man named Ali al-Bahlul. In an unusual move, Mr. Holder overruled the recommendation of the solicitor general, Donald B. Verrilli Jr., who had wanted to drop the case because the appeals court had rejected the same legal arguments in another case several months ago, according to officials familiar with the deliberations.

The chief prosecutor of the military commissions system, Brig. Gen. Mark Martins, had also urged the Justice Department to drop the case and pointedly did not sign the 22-page brief to the court on Wednesday. It concedes that the judges must side with Mr. Bahlul at this stage because of the earlier ruling in the other case, but argues that the earlier ruling was wrong.

It sure appears that Eric Holder is just counting on getting the same kind of batshit crazy ruling he got in Latif, so as to sustain his legally unjustified detention.

What’s especially interesting about this, however, is the Kremlinology. Back in early December over the course of two days time, both Jeh Johnson and Harold Koh resigned. It felt very much like a protest, or a refusal to be part of something that struck them as legally unsound (I thought then–as still suspect–it was partly a response to John Brennan’s halt of the effort to put drones on a sound legal footing).

And now we know that around that time, the Attorney General was overriding not just their advice, but that of most of the others involved in this, including the Solicitor General and the Military Commission Chief Prosecutor.

Yesterday’s brief, incidentally, was signed by the Acting Deputy General Counsel at DOD, not Johnson (of course).

So Johnson and Koh are gone. And Eric Holder? The Administration just announced he will stay into the second term. (And, not incidentally, yesterday I floated the suggestion that Lisa Monaco, who sided with Holder on this fight, would be named to replace FBI Director Mueller later this year; a number of smart people suggested that was a smart prediction.)

Update: In the WaPo version of this story, Steve Vladeck suggests that if the government really planned to push forward with an appeal of this to SCOTUS (that is, to reverse the ruling in Hamdan II), the language in the brief would have been stronger.

Incidentally, I wonder yet again about the case of the three Somalis in this context. Is this why they added a conspiracy charge to their indictment, to establish that as a precedent in this situation?


Clue: It Was the Drugs in the Solitary Confinement

Charlie Savage confirms what Jason Leopold had suggested earlier: Adnan Latif died from too much psychiatric drugs.

A Yemeni detainee who was found dead in September at the military prison at Guantánamo Bay, Cuba, died from an overdose of psychiatric medication, according to several people briefed on a Naval Criminal Investigative Service inquiry.

But while a military medical examiner labeled the man’s death a suicide, how the prisoner obtained excess drugs remains under investigation, according to American and Yemeni officials.

Savage’s sources suggest that Latif was stockpiling the drugs himself, perhaps in a bodily orifice.

One official, however, discounted [David Remes'] theories, saying investigators were working from the premise that Mr. Latif pretended to swallow his drugs for a period and hid the growing stash on his body. Prison monitoring policies — including how closely guards inspect detainees’ mouths after giving any medication and search their private areas — are now facing review.

Though of course, that would have required Latif to have brought them with him from the hospital ward to the solitary confinement ward, which would mean he managed to get the drugs by both the administration period but also the admission into solitary.

Savage also doesn’t mention a few details from Leopold’s earlier article. Shaker Aamer told David Remes that Latif had been told he’d be injected with a drug detainees say turns them into zombies for a month.

Aamer contends Latif was told on September 6, two days before his death, he would be given an “ESP injection,” that other prisoners claim “makes you a zombie” and “has a one-month afterlife,” according to unclassified notes of the meeting between Remes and Aamer.

More interesting still–given the points I raised above about how Latif would have managed to get drugs into solitary with him–is this detail.

Another prisoner said a female psychologist accompanied Latif from the hospital to Camp 5, where one prisoner told Remes the minimum stay is three months, “regardless of the magnitude of the offense.”

The female psychologist said she would communicate Latif’s concerns about being housed in Camp 5 to “higher-ups.”

Mind you, this psychologist at least sounds sympathetic. Moreover, this detail would seem to be unknowable to other detainees–how would they know what she had told Latif?–unless the psychologist had spoken to other detainees.

Finally, there’s this: Savage’s sources (as were some of Leopold’s) are citing the NCIS investigation, not the autopsy. But that’s not supposed to be done for nine months. Now perhaps NCIS doesn’t expect to have an explanation for how Latif got or stashed the drugs for another 7 months at least. Or perhaps the NCIS investigation will take that long only to make sure Latif’s remains will be good and decomposed by the time it’s done.

But as we discuss the minutia of how a detainee managed to overdose in closely guarded solitary, remember this: He was almost certainly innocent, and he surely should not have remained in Gitmo after habeas review.  Because of that legal injustice, we’re left playing clue about how a disturbed man died in America’s prison camp.


The Evidence Explaining Latif’s Death? “Now Badly Decomposed”

On October 4, I asked with disgust whether the government planned to hold Adnan Latif’s body until after the election.

Latif died on September 8–26 days ago, or 44% the period until the election. if the sole explanation for the delay is that the US is unwilling to turn over an explanation of how Latif died, it makes it far more likely that Latif died of something other than suicide.

So are they going to hold Latif on ice until the election? Is that the idea?

On October 18, when Jason Leopold explained the delay in revealing the cause of Latif’s death, I suggested any delay in repatriating Latif’s would prevent an independent assessment of why he died.

Meanwhile, no one can perform independent analysis on Latif’s body, because the government has stashed it at Ramstein Air Base in Germany. The US and Yemeni governments continue the same story shared with ProPublica: the Yemenis won’t accept the body until they get a report on why he died, the US hasn’t provided that, so the body decays in US custody.

[snip]

Tick tock.

Tick tock.

Latif died 40 days ago. Just 19 days remain before the election. Between them, the US and Yemeni governments have forestalled the time when the US has to admit a man–the sole evidence against whom was a flawed intelligence report written while Pakistanis were trying to convince us to pay a bounty for Latif–died of unnatural causes in their custody.

And when, 3 days after Obama’s reelection and 62 days after Latif’s death the government finished (but did not release) the autopsy results, I repeated my suspicion that the delay was designed to obscure the real cause of death.

This is all so predictable it really raises questions about what kind of unnatural causes killed Latif.

What caused a death at Gitmo that was scandalous enough it had to be buried until after the election?

With utterly predictable timing, Leopold reports the government has told Yemen–but not the American people, officially–how Latif died.

Suicide, they say, in seeming contradiction to early reports that said there were no signs of self-harm.

But here is the even more predictable kicker. No one can check their claims, because Latif’s body has been decomposing during the entire 79 day delay since he died.

Latif’s body has been held for nearly three months at Ramstein Air Base in Germany. US officials have said Latif’s remains have been handled according to Muslim precepts, which precluded taking steps to preserve his body and organs, now badly decomposed. Therefore, his family will not be able to seek an independent autopsy.

“This will be very tough for [Latif's] family,” the Yemeni government official said about the condition of Latif’s remains. [my emphasis]

To prevent any accounting for the death of a probably innocent man imprisoned for over 10 years, the most advanced government on earth has just let that man’s body rot.

And rot.

And rot.

For over one fifth of a year.

Until no one could prove or disprove that the US government’s own treatment (or prior head wounds the government insisted, in an effort to continue to detain him in spite of a dearth of real evidence against him, were never that serious) killed this man.

Rotten. Rotten. Rotten.


As Predicted, Government “Finishes” Latif Autopsy after Election

Thirty-five days ago, I predicted the government would hold Adnan Latif’s body on ice until after the election.

So are they going to hold Latif on ice until the election? Is that the idea?

Not long after, Jason Leopold revealed they did, indeed, have Latif on ice–at Ramstein Air Base–purportedly because the Yemeni government refused to accept the rotting corpse until they also got an autopsy report. I noted,

Tick tock.

Tick tock.

Latif died 40 days ago. Just 19 days remain before the election. Between them, the US and Yemeni governments have forestalled the time when the US has to admit a man–the sole evidence against whom was a flawed intelligence report written while Pakistanis were trying to convince us to pay a bounty for Latif–died of unnatural causes in their custody.

Surprise surprise! Leopold reports today that the government has now finished the autopsy and may turn it over to Yemen today (after which presumably they will finally accept Latif’s body, too).

The US government plans to turn over a long-awaited and recently-completed autopsy report to Yemeni Embassy officials in Washington, DC as early as today, but no one will say when or if the results will be made public.

An official at the Yemen Embassy, who declined to be named, said the embassy will not comment on the autopsy report’s conclusions or whether it determined how Latif died. Instead, the report will immediately be forwarded to government officials in Yemen’s capital, Sana’a. Someone there will decide “what the next step” will be, the embassy official said.

Not surprisingly, the delay pisses off Latif’s family.

Latif’s brother, Muhammed, said his family is distraught because they have been unable to properly mourn his older sibling and they are desperate to learn about the details of his death.

He questioned whether the delay was due to the presidential election.

“When will America apply the principles it claims to uphold?” Muhammed asked. “When will the American people demand the US government uphold the law? America is playing politics with a dead person. America doesn’t care about our rights, my brother’s rights or human rights. Yet, America claims they are favoring human rights all over the world. It’s hypocrisy.”

This is all so predictable it really raises questions about what kind of unnatural causes killed Latif.

What caused a death at Gitmo that was scandalous enough it had to be buried until after the election?


Nashiri Asks for the Targeting Package on the OTHER USS Cole Mastermind

Things just got interesting in the pre-trial hearing for Abd al Rahim al-Nashiri in Gitmo. According to Charlie Savage and Carol Rosenberg, he has asked for the targeting package used to kill Abu Ali al-Harithi in Yemen in November 2002.

While I have no confidence he’ll get the package, he has very good reason to demand it. Here’s what I wrote about the al-Harithi killing two and half years ago.

I find it rather interesting that that 2002 assassination was rationalized in the name of killing al-Harithi, accused of organizing the USS Cole bombing. That strike happened not long after the US started torturing a guy–Rahim al-Nashiri–whom we’re about to try in military commission for organizing the USS Cole bombing. [10/24/12: Correction, we actually started torturing Nashiri in earnest 13 days later] (And remember, al-Nashiri had been in custody in Dubai for a month by the time the US took custody.) Who was the mastermind of the Cole bombing, then? al-Harithi, who doesn’t even merit a mention in the 9/11 Commission report (though reports from when he was killed said he was among the 12 most senior al Qaeda figures), or al-Nashiri, who does, and is about to be tried for it? Note, too, that the Bush Administration did not announce it had custody of al-Nashiri until several weeks laterin November.

Now compare al-Harithi, with his loosely accused role in the Cole, with Kamal Derwish, whom the US accused of recruiting a number of Lackawanna youth into al Qaeda. Not only was Derwish accused of being an ongoing threat–the standard purportedly used to put Americans on kill lists now. But he was accused of training Americans in al Qaeda. Which is not all that different than what the government is accusing al-Awlaki of now.

And note, too, that Priest and maybe Miller [ed. changed per MD's comment] both now report that the CIA knew Derwish was in the car when they targeted (they say) al-Harithi. When Miller first reported this in 2002, he didn’t mention Derwish’s presence (nor did Pincus). When Priest broke the story of Derwish’s presence in the car, she stated it was unclear whether CIA knew he was there or not.

It was unclear whether the CIA operatives who fired the missile from hundreds of miles away knew that an American citizen was among their targets. It also was unclear whether that would have made any difference.

I guess I’m suggesting that, first of all, it would seem unnecessary to kill a guy for planning the Cole bombing if you knew you had the guy who–you say–planned the Cole bombing in custody. But that claiming a tie between him and the Cole bombing might provide the excuse to target a car carrying your real target, Derwish.

Basically, one of two things is likely true: al-Harithi is the mastermind of the Cole strike, and we knew that before we started torturing Nashiri, in the name of his role as the USS Cole mastermind, in earnest. Or, Nashiri is the real mastermind of the Cole bombing, in which case the al-Harithi story was probably a cover story so we could kill an American citizen, Kamal Derwish, with no due process.

I suspect the second is true (though Nashiri has also asked for the FBI investigative file on the attack; it’s rather stunning he hasn’t gotten it yet–maybe this is the reason he’s being inappropriately tried in a military commission?). In which case this is a kind of graymail, the knowledge that the US can’t turn over the targeting package for al-Harithi because it would show Derwish was the real target.

In any case, it was an interesting legal move.


Lindsey Graham Must WANT the Terrorists to Have Kittens and Beard Dye

In the last week, we’ve had two stories about how terrorists at Gitmo have made themselves comfortable.

First there was Michelle Shephard’s investigation into whether Majid Khan has a cat.

A week-long investigation into Guantanamo’s feline affairs couldn’t determine the case for sure.

“No detainees are provided pets, and detainees are not authorized to keep animals, as they present a health and sanitation hazard,” wrote Navy Capt. Robert Durand, the director of Joint Task Force Guantanamo’s Public Affairs, in a lengthy response to my cat query.

“Wild animals often carry diseases and pests such as rabies, lice, mites and other infections.”

However: “Recreation yards are surrounded by security fences that keep detainees in and unauthorized people out, but small animals can and do squeeze through any gaps.”

Durand’s emailed response goes on to describe the island’s wildlife: “The Cuban Rock Iguana is a protected species, and banana rats and feral cats lack natural predators, so these populations thrive in the areas immediately adjacent to the various camps.”Yes, but does Khanhave a cat?

“We do not discuss the details of any individual detainee.”

And now there’s Carol Rosenberg’s story explaining that Khalid Sheikh Mohammed hennaed his beard with berries and juice.

Tuesday, Army Lt. Col. Todd Breasseale said in response to a five-month-old question that Mohammed “did craft his own natural means” inside the prison camps to concoct his self-styled beard dye.

“I don’t have his exact procedure,” Breasseale said, “but can confirm the use of at least berries and juice to create a kind of harmless dye.”

We paid Halliburton a lot of money to build this prison–and still shell out $800,000 a year to keep terrorists there. But apparently Halliburton couldn’t even keep feral cats out?

I’m guessing Jose Padilla doesn’t have a kitten in Florence SuperMax. And even when Umar Farouk Abdulmutallab was held at the local minimum security prison in Milan, he didn’t show up in court in a camo vest and dyed beard (he asked to wear a Yemeni dagger, mind you, and he looked too young to grow one, mind you).

So I’m beginning to think that Lindsey Graham and all the others that insist terrorists must be held in Gitmo rather in the real prisons in the US want the terrorists to have kittens.

Upate: h/t to joanneleon for alerting me that, by my spelling, I tried to kill KSM’s beard rather than color it.


Latif’s Unexplained Death: Yemeni Government Facilitates US Stall

Jason Leopold has an important story on Adnan Farhan abd al Latif’s unexplained death. He provides more detail of Latif’s struggles with his 1994 head injury the government claimed wasn’t the reason for his 2001 trip to Pakistan. He describes how Latif’s family–including his 14 year old son Ezzi Deen–responded to the news Latif had died at Gitmo.

But most importantly, Leopold adds more details to those reported by ProPublica on Latif’s death and subsequent limbo.

When Latif died, people–including me–suggested he might have finally found a way to kill himself. But as Leopold points out, with every suicide at Gitmo, DOD has released details on the obvious signs of that suicide. And a Gitmo spokesperson has repeatedly confirmed there was no immediately apparent evidence of suicide.

But in a statement to the Associated Press two days after Guantanamo officials announced the death of a prisoner without naming him, Durand said, “There is no apparent cause, natural or self-inflicted.”

Durand explained to Truthout at the time he made that statement he was responding to a reporter’s query: “Would you call it an apparent suicide or natural causes?”

Now, however, “It would be inappropriate to speculate on the cause of death at this time.”

There was nothing to “immediately suggest ‘apparent suicide,’” Durand said, and the death is being investigated by “multiple entities.”

A Yemeni official reflecting information presumably passed from John Brennan to Yemeni President Abed Rabu Mansour Hadi when they met on September 28 confirms the government appears to have ruled out suicide.

The Yemeni government official told Truthout that US officials appear to have ruled out suicide as the manner of his death.

Leopold quotes Cyril Wecht suggesting convulsions (possibly associated with his brain injury) or drugs may have had a role in Latif’s death.

Meanwhile, no one can perform independent analysis on Latif’s body, because the government has stashed it at Ramstein Air Base in Germany. The US and Yemeni governments continue the same story shared with ProPublica: the Yemenis won’t accept the body until they get a report on why he died, the US hasn’t provided that, so the body decays in US custody.

[Latif's brother] Muhammed said the family was told by Yemen’s Ministry of Foreign Affairs that his brother’s remains would be sent home within two weeks after his death. The Ministry of Foreign Affairs, according to Muhammed, obtained that information from the Yemen Embassy in Washington, DC.

But according to a Yemeni official, the Yemen government refused to accept Adnan’s body until they receive a full accounting of the cause of his death.

[snip]The Yemeni government official’s comments about Adnan were obtained during an interview late last month when President Hadi visited the United States. His statements about Adnan were made in the context of discussions Hadi had with top US officials in the White House about the remaining Yemeni detainees in Guantanamo and Afghanistan.

Tick tock.

Tick tock.

Latif died 40 days ago. Just 19 days remain before the election. Between them, the US and Yemeni governments have forestalled the time when the US has to admit a man–the sole evidence against whom was a flawed intelligence report written while Pakistanis were trying to convince us to pay a bounty for Latif–died of unnatural causes in their custody. Possibly, they will have to admit complications of the same head injury they claimed, in court, was not all that serious, killed him.

And it appears John Brennan may be buying Hadi’s complicity on this front with promises he may not be able to keep. Leopold’s Yemeni source makes clear that the US and Yemeni government have tied discussions of the release of the other Yemenis in Gitmo and Bagram to the fate of Latif’s body.

“President Hadi was in Washington, DC, and met with President Obama’s cabinet ministers,” the official said. “The remaining Yemeni detainees was one of the talking points. President Hadi has made Guantanamo and Bagram [prison in Afghanistan] a high priority for Yemen. We are emphasizing talks and opening up a dialogue to ensure the timely release and transfer and rehabilitation of those remaining detainees to Yemeni custody and we are working closely with the US government. These discussions took place with high-level officials in the Obama administration.” [brackets original]

I can imagine a quid pro quo that goes this way: Hadi agrees to refuse to accept the body, helping to forestall announcements of how Latif died, until after the election. And then the US will enter discussions to do what they should have done 2 years ago: release the Yemenis who don’t pose a threat to the US.

But all that’s premised on getting Congressional support to release roughly 60 Yemenis, after the Administration already neutralized the one point of leverage–detainee wins in habeas proceedings–that has worked to override Congressional intransigence in the past.

To some degree, I can’t blame Hadi for doing the bidding of the superpower that put him in power, on whose continued military support he relies. I can’t blame Hadi for trading Latif’s decaying corpse for the fate of 60 other Yemenis unjustly held at Gitmo.

But if that’s the trade-off, I do question Hadi’s judgment for believing Obama will do in a second term what he had easier ways of doing–habeas proceedings–in the first.


DC Appeals Court Throws Out Hamdan Conviction

Back in 2009, then Assistant Attorney General David Kris predicted that appellate courts might throw out material support military commission convictions because material support is not a law of war crime.

There are two additional issues I would like to highlight today that are not addressed by the Committee bill that we believe should be considered. The first is the offense of material support for terrorism or terrorist groups. While this is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the U.S. Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.

Today, the DC District Court did just that, though making a slightly narrower ruling. In a ruling overturning Salim Hamdan’s conviction on material support, conservative judge Brett Kavanaugh notes that material support still is not a law of war crime, and did not become a crime covered by military commissions in the US until the 2006 Military Commissions Act.

First, despite Hamdan’s release from custody, this case is not moot. This is a direct appeal of a conviction. The Supreme Court has long held that a defendant’s direct appeal of a conviction is not mooted by the defendant’s release from custody.

Second, consistent with Congress’s stated intent and so as to avoid a serious Ex Post Facto Clause issue, we interpret the Military Commissions Act of 2006 not to authorize retroactive prosecution of crimes that were not prohibited as war crimes triable by military commission under U.S. law at the time the conduct occurred. Therefore, Hamdan’s conviction may be affirmed only if the relevant statute that was on the books at the time of his conduct – 10 U.S.C. § 821 – encompassed material support for terrorism.

Third, when Hamdan committed the relevant conduct from 1996 to 2001, Section 821 of Title 10 provided that military commissions may try violations of the “law of war.” The “law of war” cross-referenced in that statute is the international law of war. See Quirin, 317 U.S. at 27-30, 35-36. When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime. Indeed, the Executive Branch acknowledges that the international law of war did not – and still does not – identify material support for terrorism as a war crime. Therefore, the relevant statute at the time of Hamdan’s conduct – 10 U.S.C. § 821 – did not proscribe material support for terrorism as a war crime.

Because we read the Military Commissions Act not to retroactively punish new crimes, and because material support for terrorism was not a pre-existing war crime under 10 U.S.C. § 821, Hamdan’s conviction for material support for terrorism cannot stand. We reverse the judgment of the Court of Military Commission Review and direct that Hamdan’s conviction for material support for terrorism be vacated.

Hamdan has already been released. Only one other detainee has been convicted on just material support, Ibrahim al-Qosi, who has been repatriated to Sudan and is in a reintegration program [oops--I forgot David Hicks, though he too has been released]. As Carol Rosenberg points out, three other Gitmo detainees were convicted of material support: Majid Khan, Noor Uthman Muhammed, and Ali al-Bahlul, but they were also convicted of other crimes. So assuming the Administration doesn’t appeal this, it probably doesn’t affect all that much.

Then again, the Administration could appeal this and have SCOTUS decide whether material support should be covered by military commissions more generally.

Update: I was wondering how this would affect al-Bahlul’s appeal. Steve Vladeck says it might affect it significantly.

And that’s where the next military commission case, al-Bahlul, comes in–one of the claims al-Bahlul raises in his appeal is that conspiracy was not recognized as a violation of the laws of war when the MCA was enacted, and so, as in Hamdan, the commission could not try him for that offense, either.

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Latif: Indefinitely Detained Even in Death

ProPublica reports that Adnan Farhan abd al Latif’s body remains in limbo–in an undisclosed location.

His body hasn’t been sent back to his home country of Yemen, and it’s no longer at Gitmo.

It’s being held in an undisclosed location.

“Mr. Latif’s remains are being handled with the utmost care and respect by medical professionals and are being maintained in an appropriate facility designed to best facilitate preservation,” said a Defense Department spokesman, Lt. Col. Todd Breasseale. “His remains are no longer at JTF-Guantanamo Bay.”

Breasseale blames the delay on the Yemenis, who have insisted on autopsy and investigation reports into why he died.

Lt. Col. Breasseale said the U.S. is responding to Yemen’s “wishes that we maintain the remains until a time when they are prepared to receive them.”

A Yemeni official said his government “will not accept the remains until we get an official autopsy and an investigation report. We just want to know what happened.” The official, who declined to be named, also said that the government was in touch with Latif’s family.

Latif died on September 8–26 days ago, or 44% the period until the election. if the sole explanation for the delay is that the US is unwilling to turn over an explanation of how Latif died, it makes it far more likely that Latif died of something other than suicide.

So are they going to hold Latif on ice until the election? Is that the idea?


Now That Latif Has Died But His Precedent Lives, DOD Releases List He Would Have Been On

As Josh Gerstein reported, the government has released a list of 55 Gitmo detainees who have been cleared for release.

The list was dated September 21–almost two weeks after Adnan Farhan abd al Latif died. Note, the list makes it clear there are others who have been cleared, but the names of the others “approved for transfer” are “protected by sealed orders issued by the Court of Appeals.” I assume, from that, that these others are the men who have lost habeas cases, probably in the DC Circuit, and the government doesn’t want to admit how many detainees’ habeas cases it fought after having decided on their own account they could release it.

That is, they don’t want to admit how many other detainees are in the position Latif was in: cleared for release, but held on one dodgy intelligence report.

And now that Latif is dead and that Latif precedent is still valid in the DC Circuit, many of the others on the list are presumably facing that same limbo: held on the basis of what the CIA or DOD dubiously claim when they don’t need to be.