“This included information obtained in chaotic battlefield settings, unless there was clear evidence to the contrary,” says Andrea Prasow, senior counterterrorism counsel at Human Rights Watch, “effectively shifting the burden to the detainee to prove that the evidence was false or unreliable.”

In June, the Supreme Court chose not to hear the case. It was among seven Guantánamo detainee appeals that the justices rejected without comment.

Latif’s 2008 Defense Department risk assessment recommended he be transferred from Guantánamo as “a medium risk” who “may pose a threat to the U.S. its interests and its allies.” It said he had often violated the prison’s rules, “had been noncompliant and hostile to the guard force.” At the time of his death, the prison camps spokesman said, Latif had been in single-cell confinement with reduced privileges for hurling a container of his bodily fluids at a guard.

Even had the judge’s order been upheld, it was unclear whether Latif would’ve been repatriated.

Defense Department review panels as far back as 2004 recommended he be transferred, as did a Task Force set up by the Obama administration in 2009.

But Yemen is wracked by internal violence. Neither the Obama nor Bush administration have been willing to repatriate most Yemenis, even those cleared for release from Guantánamo, for fear they would be ripe for recruitment by Al-Qaida of the Arabian Peninsula, an offshoot of the terror group Osama bin laden founded. Yemenis represent more than half of the 167 captives currently held at the prison camps in southeast Cuba.

Military sources said that by Tuesday Latif’s remains were airlifted from Guantánamo for repatriation to his homeland. Even in death, the military and defense attorneys could not agree on the captive’s age. A military release said he was 32. Remes said court records indicated Latif was 36 when he died.