As reported by Kevin Gosztola in the 17 July Dissenter, a panel of the D.C. Court of Appeals stayed Judge Royce Lamberth’s ruling overturning a search protocol at Guantanamo that included groin searches of detainees as much as four times in a single day.

Key to the panel’s ruling was a written declaration by JTF-GTMO’s parent command (SOUTHCOM) top officer, Marine General John F. Kelly. See detailed press coverage of the legal issues at The Public Record, the Miami Herald and the Washington Post, as well as a new report by the UK charity Reprieve, which details the controversy over the hunger strikes and the abusive practices of the Guantanamo military authorities. (Reprieve attorneys represent a number of Guantanamo detainees.)

Kelly’s declaration presents a dishonest picture of the reasons underlying the changes in search protocols, and other policies, at Guantanamo in recent months. He does, however, note that the reason for the changes was the purported suicide of Adnan Latif last September, in addition to a more recent purported discovery of a stash of prisoner contraband. Kelly points out, an Army investigator found that Latif’s death was due to an overdose of the antipsychotic medication paliperidone, also known as Invega.

The SOUTHCOM report was declassified and released thanks to a FOIA request from Jason Leopold, who also wrote a deep analysis of it for Al Jazeera. My own analysis of the report was posted at The Dissenter on June 29. An NCIS investigation into Latif’s death has not been completed.

Kelly uses Latif’s death to spin the conclusions from the SOUTHCOM report, conducted under Army regulation AR 15-6, to make it appear that Latif died because he was able to hide medications in his groin area. He ignores other conclusions and facts enumerated in the report. Let us look at what he says and what the report says.

What Contributed to Latif’s Death?

According to Kelly’s declaration, the AR 15-6 report “found that Latif hoarded medications and ingested them shortly before he was found unresponsive. Several factors, to include the prohibition against searching a detainee’s groin area contributed to the ability of Latif to hoard the medications. The report found that the prohibition against searching a detainee’s groin area created ‘extraordinary opportunities for detainees to conceal contraband should they choose.’”

Kelly cites a recommendation in the report to reconsider the search policy that prohibits guards “from conducting searches of the area from the waist to above the knee of the detainees.”

The declassified report had actually redacted the information about the groin searches, including the recommendation cited, so I am grateful to Kelly for updating us. But he artfully elides much of the content of the report, with the effect that the issue of groin searches is given much more weight than it deserves. The recommendation on searches, for instance, never is mentioned in the reports Executive Summary.

Kelly also gives tremendous credence to the testimony of Col. John Bogdan, the commander of Guantanamo’s Joint Detention Group, which runs the prison. This is problematic because the AR 15-6 report blasts Bogdan’s regime.

Even more, the report suggests that there was more to Latif’s death than has been heretofore suggested by any military source. In the end, the report’s conclusions, its failure to seek testimony from other prisoners, and its failure to recommend any accountability measures, mar the work fatally. But as is often the case, the devil we seek is in the details, and those do not bear out Kelly’s claims. (I would like to know also where Kelly got the time reference that says Latif ingested the drugs “shortly” before he died. That’s not in the declassified section of the report.)

According to the SOUTHCOM report, written by an anonymous “objective senior officer in the rank of Colonel,” a number of factors were implicated in Latif’s death. Among the various factors listed in the report’s Executive Summary none of them included failure to adequately search prisoners.

The Executive Summary lists the following issues (emphases added):

* Guards and medical personnel “repeatedly violate” Standard Operating Procedures (SOPs)

* Guards failed to follow “line of sight” and medication SOPs, “and failed to take remedial measures after ISN156 [Latif] appeared to be sleeping an unusual amount of time. Medical personnel also violated the medication SOP

* Latif’s ability to hoard medications (if we accept that is in fact what happened) was due to “inconsistent JDG [Joint Detention Group] and JMG [Joint Medical Group] SOPs” with respect to medication administration; “confusion on the part of guards, corpsmen, leadership (camp, JDG, and JMG) regarding what the SOPs require; and failure to follow medication administration SOP requirements

* Flawed training and procedures for medical personnel.

* The JDG commander (Col. Bogdan), and the JMG senior leadership (presumably including its Commander, Captain Richard Stoltz and Senior Nurse Executive), seemed “largely removed from several aspects of what is going on at the tactical level at the Behavioral Health Unit/Detainee Hospital and the camps.

* Poor communication by leadership “to ensure that their respective detainee operations practices and policies are consistent and synchronized.”

* Failure of JTF-GTMO leadership to implement previous recommendations after other detainee deaths.

Later in the report, the SOUTHCOM investigator cites the various failures noted above and directly states, “These failures contributed to the death of ISN156 in that they permitted ISN156 to hoard medications” (p. 66) Nothing similar is said about hiding or hoarding medications in one’s private parts. Instead, the report notes various failure to follow SOPs as contributory to Latif’s death, as when guards failed to act when Latif supposedly used food to obscure the camera lens used to observe him electronically.

Perhaps General Kelly would like to explain to the full D.C. panel of judges why a more rigorous and intrusive search policy is necessary after Latif’s death when the hoarding of drugs is not attributed to search policy in the investigatory report (at least the part publicly released, and summarized without redaction in the Executive Summary). Instead the report attributes the death, at least in large part, to failure to follow SOPs, lax discipline, poor coordination, and an out-of-touch or negligent leadership.

Who Wrote the Email Predicting Latif’s Death?

All of that would be damning enough — indeed, Leopold’s article described how the AR 15-6 investigation found that a “widespread breakdown of safeguards” and a “systemic breakdown” contributed to Latif’s death. But the report describes other incidents that are not fully explained, and indicate we do not yet have the full story about Latif’s death.

The narrative around the failure to maintain the line of sight surveillance of Latif — an order that encompassed both direct (eyeball) and electronic line of sight observation — is never adequately explained in the report, seemingly because the crucial sections are highly censored. Indeed, even investigators may have been stymied in finding the truth, as the report notes how a failure by the Watch Commander “to make the line of sight entries into [camp database] DIMS as required by SOP…. did make it difficult after the fact to re-create the immediate events leading up to the point that the guards found ISN156 unresponsive.”

In addition, while we know that drugs were simply left in Latif’s cell tray (or “splashbox”) the day he died, supposedly he never took those drugs as he had already overdosed. But the report notes this kind of SOP violation (leaving drugs unsupervised for a detainee) may have occurred numerous times before. “Similar failures by medical staff over time, to follow the SOP may have contributed to ISN156′s ability to hoard medications,” the report states.

All of the above would be more than enough to throw grave doubt upon the conclusions of the report, but we also must consider the fact an internal email warning that if Latif was moved he would commit suicide was sent to Col. Bogdan on September 7, 2012 — the day Bogdan ordered Latif’s move from the detainee hospital to a isolation punishment cell in Guantanamo’s Camp V. (A medical officer okayed the move at Bogdan’s request, even though, as it turned out, Latif suffered from pneumonia and never should have been moved, no matter what his psychiatric condition.)

The report states on September 7, “around 1400, a [one word redaction] analyst from the [four or five word redaction -- possibly Behavioral Science Consultation Team?] arrived with a Force Protection Report indicating [one word redaction] was saying that ISN156 was suicidal and was going to kill himself. [One or two word redaction] recalled asking the analyst whether he knew what method ISN156 intended to use to kill himself. The analyst indicated that he did not know and followed up the exchange with an email.”

A footnote notes it was this very warning that prompted the order to place Latif on both direct and electronic line-of-sight surveillance.

The report continues (p. 20): “the JTF-GTMO Cultural Advisor ([three or four words redacted]) also received the same Force Protection Report, in a high priority email at 1430 on 7 September 2012. [One or two words redacted] forwarded the email to COL Bogdan, [two or three words redacted] (the Deputy JDG Commander), and others in a high priority email, adding that ‘pushing 156 to the corner never works to our advantage.’ COL Bogdan indicated he was not aware of the email until sometime the following day, Saturday.”

Elsewhere in the report, returning again to the 7 September “high-priority” email, the report continues: “Although COL Bodgan did not receive the email until the following day, he stated that it would not have affected his decision to transfer ISN156 to Camp V, because ISN156 was known to make ‘melodramatic’ statements. In this instance, COL Bogdan acted reasonably as he had to address the frequent misconduct by ISN156. On balance, the suicidal ideation did not stand out compared to any of the other instances” (p. 64).

But SOUTHCOM’s own report suggests otherwise. Indeed, just how many “high-priority emails” were sent to COL Bogdan or his predecessors warning of a detainee’s suicide? It’s also worth noting that other news reports describe Latif saying camp authorities were pushing him “towards death every moment.” Latif also complained to his attorney David Remes that guards were leaving contraband in his cell by which he could hurt himself. To my knowledge, no investigation into this charge has ever taken place.

SOUTHCOM must release the relevant emails and indicate exactly who sent and received them.

Conclusion

There are other aspects to the Kelly declaration that do not fit what SOUTHCOM’S own investigators found. For instance, Kelly says that he discussed changing the search protocols with Bogdan after he arrived at Guantanamo in November 2012. But the AR 15-6 report stated, “The OIC (Officer-in-Charge) of teh BHU/DH and Camp Iguana indicated that COL Bogdan called the Camp OICs into his office on 24 September 2012 to discuss a modified search program and an implementation process.”

We don’t know if Bogdan addressed that in his own declaration to the court on the search issue, and Kelly’s own declaration ends with a plea to the court not to release Bogdan’s statement. Jason Leopold has filed a suit for the release of Bogdan’s declaration.

For many years now the military, including its authorities posted to Guantanamo, have shown themselves unable or unwilling to be truthful about events. It seems likely that the SOUTHCOM report went as far as they are generally willing to go to issue criticisms, yet even then it remains what Latif’s attorney called it, “a whitewash.” It is worth reminding ourselves that no officer in charge has ever been held accountable for promulgating a policy of torture or abuse of prisoners.

We don’t know what really happened to Adnan Latif. Congress seems totally uninterested in pursuing it. Mainstream reporters cover mostly the government’s spin. Progressive bloggers have abandoned the subject nearly entirely. Human rights attorneys battle on, but fatigue and demoralization lie ahead if the American people continue to ignore the pressing issues of abuse and non-accountability. In an age when domestic drones are operating in U.S. skies, and hunger strikes and onerous conditions of imprisonment spread within U.S. borders, the fight over Guantanamo isn’t about only Adnan Latif, or the 166 detainees remaining at the prison, half of whom languish though cleared for release, it’s about the fight for human dignity and the rule of law.