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Brian Foster Follows Up on Fredman and Latif

Benjamin Wittes
Monday, April 8, 2013, 12:00 PM

Brian Foster of Covington & Burling, responds to my comments on his earlier guest post as follows:

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Brian Foster of Covington & Burling, responds to my comments on his earlier guest post as follows:

I don’t derive a double standard merely from your sympathy for the instinct behind the Latif majority’s factual assessment. I’m focusing on the inconsistent outcomes: on the one hand, you argue the Fredman minutes should be considered unreliable as to what Fredman allegedly said because there are demonstrable flaws and Fredman denied saying what the minutes indicated he said, while on the other hand, you say the intelligence report in Latif should be relied upon for what Latif allegedly said even though there are demonstrable flaws and Latif denied saying what the report indicated he said. Your response further illustrates the point. You say that the Fredman document

is perfectly reliable for certain purposes: Establishing that he attended a meeting at GTMO, for example, or that he spoke on interrogation law, or that he met with a certain group of people. Insofar as it purports to establish these facts, it seems to me both reliable and corroborated by other statements, including Fredman’s later memo. But I also think, given Fredman’s memo to the committee and given the internal problems with the document itself, it is not reliable concerning the details of what he said at the meeting.

The same might arguably have been said of the Latif document: it may establish that an interrogation took place, that Latif answered questions about his background, and that certain people were involved in the interrogation (although those details are not public). There is nothing like the extensive paper trail documenting the GTMO meeting Fredman attended. Latif denied that he said the inculpatory things attributed to him, and there are numerous internal problems with the Latif document itself, including conceded factual errors (e.g., that his injury was to his hand rather than his head). There is thus no basis to distinguish the cases---if the Fredman document is “not reliable concerning the details of what he said at the meeting,” the Latif document is also “not reliable concerning the details of what he said at the” interrogation. Regarding flaws in the Fredman minutes, you highlighted the following “absurd” statement: “In Turkey they say that interrogation at all, or anything you do to [sic] that results in the subject betraying his comrades is torture.” Yet Fredman’s 2008 memo confirms that during the meeting, he noted that “the Istanbul Protocol of 1999 provides that . . . the use of coercion to induce an individual ‘to betray someone placing them at risk of harm’ . . . constitute[s] torture.” The statement in the minutes thus appears to be a distortion of what Fredman actually said---another example of the game of “telephone” described in Judge Tatel’s Latif dissent. Similarly, we argued to Judge Kennedy that the Latif document’s references to fighting jihad and being on the front lines with the Taliban were distortions of his alleged statements. The Turkey point also shows that, contra Judge Brown’s reading of the evidence in Latif, the mere fact that certain undisputed details in a document are corroborated elsewhere does not render disputed details in the document clearly more reliable. A factfinder approaching Fredman’s case the way Judge Brown approached Latif’s---applying no presumption as to reliability---would seize on Fredman’s “corroborating” admissions in his 2008 memo, ignore his denials, and conclude that the minutes are reliable and accurately reflect what he said at the meeting. But Fredman’s admission that he mentioned the Istanbul Protocol doesn’t make the minutes’ account of his “if the detainee dies you’re doing it wrong” statement authoritative. Nor does Latif’s confirmation of certain family details in the document make the document’s account of his jihad/front-lines statements authoritative. Corroboration of innocent and undisputed facts (reference to Turkey, names of family members) in a summary tells us little, if anything, about the accuracy of other, disputed portions of the summary.

I'm going to let Foster have the last word in this exchange. I think there's more to be said for the Latif majority's view of the document they confronted than there is for relying on the Fredman minutes. And I don't think that conclusion rests necessarily on a double standard. That said, as I said in my original post, I am broadly sympathetic to Foster's point here, and I have never been comfortable with what the majority did in Latif. And while I am not entirely comfortable with Judge Kennedy's handling of the case either, I have never been entirely sure that my reading of the facts in the case is optimal. So I'll leave this particular fight to someone who actually supports the D.C. Circuit's handling of the Latif case.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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