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Thoughts on Latif #4--A Fuller Analysis

Benjamin Wittes
Saturday, November 12, 2011, 9:06 PM

The more I study the D.C. Circuit decision in Latif, the more important I think it is, and the more regrettable I think it probably is. I'm going to spread this out over two posts. In this one, which is going to be very long, I'm going to describe in some depth the arguments in both the majority opinion by Judge Janice Rogers Brown and the dissenting opinion by Judge David Tatel.

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The more I study the D.C. Circuit decision in Latif, the more important I think it is, and the more regrettable I think it probably is. I'm going to spread this out over two posts. In this one, which is going to be very long, I'm going to describe in some depth the arguments in both the majority opinion by Judge Janice Rogers Brown and the dissenting opinion by Judge David Tatel. And I'm going to lay out why I have tentatively come to the conclusion that Judge Tatel has the better of the argument. In a subsequent post, I will lay out why I think Latif offers the detainee bar its best opportunity yet to get the D.C. Circuit's post-Boumediene's work in front of the justices and why, at least in my view, the en banc D.C. Circuit should preempt that possibility by taking a serious look at this case before it goes to the justices. There are people who would write a critique like this with glee. I am writing it in sadness--as a fan of the court, to which I worry this case does no credit. Let's start, though, with the opinion itself, which reviews this opinion by District Judge Henry Kennedy. The D.C. Circuit briefs are available here. Larkin's oral argument preview is available here. And Larkin's and my oral argument summary--such as it was--is available here. Any serious effort to analyze this case must be cautious. While I have strong feelings about the decision, they are tentative ones. The number and scope of redactions in critical places is simpy too high to make confident assertions about the merits of the opinion. I am relatively certain that I agree with Judge Tatel. But as I said in an earlier post, this judgment may be influenced to some degree by the fact that Judge Tatel--either intentionally or by luck--did a far better job than did Judge Brown in writing his opinion in such a manner that the government's redactions would not dismember it. The result is that his argument reads more cohesively--though there are, to be sure, still many pages that are impossible to parse. Here is my best effort to unpack the dispute: Judge Brown, writing for herself and Judge Karen LeCraft Henderson, declares that Judge Kennedy's opinion has "three errors [that] require us to vacate that decision. First, the court failed to accord an official government record a presumption of regularity. Second, the district court failed to determine Latif's credibility even though the court relied on his declaration to discredit the Government's key evidence. See Al-Adahi v. Obama, 613 F.3d 1102, 1110 (D.C. Cir. 2010). Third, the court's unduly atomized approach to the evidence is one we have rejected. . . . We remand so the district court can evaluate Latif's credibility as needed in light of the totality of the evidence, including newly available evidence." (Judge Henderson also writes separately to say that she would not bother with a remand but would reverse Judge Kennedy outright.) Judge Tatel, by contrast, sees the case very differently: "rather than apply ordinary and highly deferential clear error review to the district court's findings of fact, as this circuit has done when district courts have found the government's primary evidence reliable, the court, now facing a finding that such evidence is unreliable, moves the goal posts." It "impos[es a] new presumption and then proceed[s] to find that it has not been rebutted" and thus "denies Latif the 'meaningful opportunity' to contest the lawfulness of his detention guaranteed by Boumediene v. Bush." What's more, it "undertakes a wholesale revision of the district court's careful fact finding . . . all without ever concluding that the district court's particular take on the evidence was clearly erroneous." The easiest of these matters to evaluate--and undoubtedly the most important of them to the larger law of detention--is the first: the question of whether a "presumption of regularity" attaches to intelligence reports in Guantanamo habeas cases. Everyone seems to agree that this case turns on the reliability of a single government intelligence report, which Judge Kennedy found to be unreliable. Nearly all details concerning this report--its author, its subject, and its flaws--are redacted. But the centrality of the report and the fact that it would apparently alone justify Latif's detention were it reliable raises the question of what presumptions, if any, Judge Kennedy should have made concerning its reliability. Specifically, was he right to make no presumption as to the integrity of the document and merely assess its reliability? And if not, would a presumption of reliability in the case of the Report be overcome by its flaws? Judges Brown and Henderson say that Justice Kennedy was wrong. Judge Brown's opinion starts with the assumption that a presumption of regularity supports official acts of public officers in the absence of reason to doubt their regularity. This is true of publicly-produced documents no less than other actions, she argues. So just as a tax document is presumed to accurately report a tax filing, and just as in a normal habeas case, the courts presume regularity in the underlying criminal proceedings, the courts here should presume regularity in the preparation of the intelligence report at issue. The Supreme Court in Hamdi, Judge Brown notes, explicitly invited such an approach, writing that the "Constitution would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided." Judge Brown makes clear that she is not suggesting that there should be any "presumption of truth. But a presumption of regularity does not require a court to accept the truth of a non-government source's statement." Rather, the presumption of regularity "presumes the government official accurately identified the source and accurately summarized his statement, but it implies nothing about the truth of the underlying non-government source's statement." If it is not rebutted, it "requires a court to treat the Government's record as accurate; it does not compel a determination that the record establishes what it is offered to prove." Having insisted that a presumption of regularity attaches to the Report, Judge Brown takes another big step: Rather than remanding the case for a determination by Judge Kennedy in the first instance as to whether the presumption has been overcome by flaws he found, she rules on the point. "[W]e can only uphold the district court's grant of habeas if Latif has rebutted the Government's evidence with more convincing evidence of his own. Viewed together, both [REDACTION] and the other evidence he uses to attack its reliability fail to meet this burden." The entirety of her discussion of this point (more than ten pages) is reacted, so it's impossible for me to evaluate positively or negatively. But it seems to me a fateful step--and it energizes Judge Tatel's dissent on the point. Judge Tatel starts in a different place from Judge Brown. For him, the presumption of regularity stems from the mundane fact that routine business is normally not fouled up. All the cases applying the presumption, he notes, "have something in common: actions taken or documents produced within a process that is generally reliable because it is, for example, transparent, accessible, and often familiar. As a result, courts have no reason to question the output of such processes in any given case absent specific evidence of error." The Report on which this case hinges, he argues, stands in sharp contrast. It

was produced in the fog of war by a clandestine method that we know almost nothing about. It is not familiar, transparent, generally understood as reliable, or accessible; nor is it mundane, quotidian data entry akin to state court dockets or tax receipts. Its output, a [REDACTION] intelligence report, was, in this court's own words, "prepared in stressful and chaotic conditions, filtered through interpreters, subject to transcription errors, and heavily redacted for national security purposes."

Judge Tatel stresses that he not arguing that such material is inherently unreliable, just that "we should refrain from categorically affording it presumptions one way or the other." As he puts it in a passage that will give a sense of the frustration of reading this document,

One need imply neither bad faith nor lack of incentive nor ineptitude on the part of government officers to conclude that [REDACTION] compiled in the field by [REDACTION] in a [REDACTION] near an [REDACTION] that contain multiple layers of hearsay, depend on translators of unknown quality, and include cautionary disclaimers that [REDACTION] are prone to significant errors; or at a minimum, that such reports are insufficiently regular, reliable, transparent, or accessible to warrant an automatic presumption of regularity.

Judge Tatel goes on, quite persuasively in my view, to contrast the current approach with the court's handling of of prior cases in which the district court had assessed carefully documents' reliability. In those instances, he notes, the court reviewed for clear error--examining the lower court's assessment in detail. This would have been altogether unnecessary if some presumption of reliability had attached to the material. He makes quite clear that he regards the apparently-different approach in this case as purely outcome driven. "The only feature of this case not previously encountered is that here the government lost: the district court found the dispositive Report unreliable and granted a writ of habeas corpus." For Judge Tatel, the language in Hamdi permits the use of a presumption with respect to individual pieces of evidence, but it does not require its use for all intelligence reports. The relevant command from above, for him, is the requirement in Boumediene that "habeas review be 'meaningful'"--a command that he sees as jeopardized by the majority's standard, which assumes government evidence valid unless proven otherwise. Galling him all the more is the lack of a remand to see if Latif can overcome the presumption but, instead, the finding that the presumption cannot be overcome. He terms this "call[ing] the game in the government's favor," and unfortunately, it has the ring of truth. Redactions notwithstanding, enough of this dispute is public to permit the reader to decide with which side he agrees. On the major point of the value of the presumption itself, there's something to say for both sides, though I ultimately come down on Judge Tatel's side. Judge Brown is clearly correct that the Supreme Court contemplated and invited this sort of innovation, though it did not require it. But there's a reason why none of the district judges have been willing to go there--to afford intelligence reports a presumption of accuracy. The reason is that errors in these documents are not uncommon; they were not designed to be evidence in court. Judge Tatel's dissent notes that this Report--whatever it was--had "heavy redactions" even in the version submitted to the district court. It contained what the district court termed "factual errors." And as Judge Kennedy also noted, the government could not corroborate its incriminating statements. Now I'm not advocating a posture of particular skepticism towards, or fly-specking of, such material, but I don't see much reason to make a blanket assumption of its accuracy or regularity either. Judge Tatel's complaint about calling the game seems to me, in all probability, less of a judgment call--that is to say that I suspect that he is more obviously correct. The court's having determined that such a presumption should attach to intelligence reports, I can see no reason why that fact should provoke, instead of a remand, an adjudication in the D.C. Circuit in the first instance of whether the presumption could be overcome. This instinct may be unfair on my part, since I admittedly do not have access to Judge Brown's ten pages worth of reasons. But I would submit that if the question is even close enough that a judge of David Tatel's quality could have doubt as to how a judge of Henry Kennedy's quality might weigh the evidence, then Judge Kennedy should have the first crack. This brings us to the second of Judge Brown's concerns about the district court opinion: that it did not make a judgment about Latif's credibility even as it used his declaration to discredit the government's evidence. Making a credibility determination concerning the detainee's story is something the D.C. Circuit insisted on, rightly in my view, in Al Adahi, which came down just before Judge Kennedy's opinion in this case did. Were this matter the only grounds for reversal, this case would not especially concern me. Judge Kennedy made no explicit credibility finding, and if the D.C. Circuit wants to play gotcha on that score, I'm not going to lose a lot of sleep over it. Still, Judge Brown's opinion on this point really does make a weird fetish out specific language--rather than meaning. That is, reading over Judge Kennedy's opinion, it seems plenty clear to me that he did make a credibility finding as to Latif. Judge Kennedy writes that he finds Latif's story "plausible" and that this fact--among others--lessens his confidence in the Report. He writes that in finding the government's submission inadequate, he has,

taken into consideration the explanation of events Latif has offered. Latif's story is not without inconsistencies and unanswered questions, but it is supported by corroborating evidence provided by medical professionals and it is not incredible. The Court does not accept respondents' contention that Latif must be lying because he has told more than one cover story. That theory is based on two isolated statements. The first, an indication that Latif said he went to Kabul to "look around," . . . does not contradict Latif's version of events, in which he went to Kabul to wait for treatment. Furthermore, the document's reference to an ear problem, suggestion that Latif arrived in Kabul approximately five months earlier, and indication that he was elsewhere for the month preceding capture are all consistent with his story. The second statement on which respondents rely, an indication that Latif said he was helping at the Islamic studies center, may be the result of a misunderstanding or mistranslation. . . . Respondents' other arguments attacking the credibility of Latif's story are similarly unconvincing. The smaller inconsistencies to which respondents have pointed may be no more than misstatements or mistranslations; even if some details of Latif's story have changed over time, for whatever reason, its fundamentals have remained the same. The timing of his departure from Kabul is not sufficient to create an inference that he was involved in fighting. Whether Latif was sufficiently physically impaired as to make it impossible for him to fight is not a crucial question; much more important is that the evidence shows that Latif did have an injury that continued to affect him in 2001 and for which he might therefore have sought treatment. This exculpatory information contributes to the Court's finding that respondents have not proven by a preponderance of the evidence that Latif was in Afghanistan to train and fight with the Taliban.

As Judge Tatel asks in his dissent, "What else could the district court have meant other than that it found Latif's account convincing enough, plausible enough, consistent enough, and corroborated enough to to give it at least some weight against the government's evidence?" As I say, I'm not going to weep bitter tears over the D.C. Circuit's sudden determination that credibility findings have to be explicit, as opposed to merely obvious in their meaning to any sentient being. But I do have this feeling that had Judge Kennedy used comparably coy language to describe not crediting Latif's story, Judges Brown and Henderson might have found their way to understand him. Finally, Judge Brown concludes that Judge Kennedy viewed the evidence in an unduly atomized fashion--also, if true, rightly deemed an offense against Al Adahi. This point is hard to evaluate in light of the redactions. But here's Judge Brown's outline of the problem:

The district court's unduly atomized approach is illustrated by its isolated treatment (or failure to consider) several potentially incriminating inferences that arise from evidence Latif himself offers in support of his petition--namely (a) striking similarities between Latif's exculpatory story and [REDACTION], (b) the route Latif admits traveling, and (c) contradictions in Latif's exculpatory statements. In addition, the district court improperly declined to consider [REDACTION].

I cannot say Judge Brown is wrong here; too much is redacted for me to glean the totality of her argument. But what does emerge from this section of her opinion is an almost total lack of deference to the district court's fact-finding. She does not seem to find anything clearly erroneous, but she seems to find a completely different set of facts and inferences salient than did Judge Kennedy--and seems to fault him for not assembling the data as she prefers. Judge Tatel points out repeatedly that his facts are not clearly in error. While I cannot evaluate this dispute rigorously, I do come away with a strong sense that she and Judge Henderson have played fast and loose with the rules of appellate judging. Whereas in the earlier part of the opinion, they go out of their way to rule that Latif cannot overcome the presumption of reliability of the Report,dismissing along the way the inconsistencies and errors that discredited it in the eyes of Judge Kennedy, in this part, they seem to construe every inconsistency in the detainee's story in the fashion least favorable to the petitioner--again, in the face of and without disturbing the district court's factual findings. I have never joined the chorus of folks who insist that the D.C. Circuit is trying to gut Boumediene, and I'm not going to do so now. It is, however, worth noting that Judge Brown, in this opinion all but does so herself. As though to emphasize her hostility to the framework, Judge Brown concludes her opinion with a broadside against Boumediene itself:

As the dissenters warned and as the amount of ink spilled in this single case attests, Boumediene's airy suppositions have caused great difficulty for the Executive and the courts. . . . Luckily, this is a shrinking category of cases. The ranks of Guantanamo detainees will not be replenished. Boumediene fundamentally altered the calculus of war, guaranteeing that the benefit of intelligence that might be gained--even from high-value detainees--is outweighed by the systemic cost of defending detention decisions. . . . While the court in Boumediene expressed sensitivity to such concerns, it did not find them "dispositive." . . . Boumediene's logic is compelling: take no prisoners. Point taken.

Just to be clear: I think the Supreme Court's decision in Boumediene--which announced that the courtroom doors were open to detainees but refused to engage any serious questions concerning the contours of the review it authorized--was a completely irresponsible exercise of judicial power. But it is the law. I have no problem with D.C. Circuit judges criticizing it. But this sort of fevered criticism in the context of a decision that--even while overturning the uniform view of all district judges to have considered the matter--reduces the scope of the judicial review taking place under the decision, will not engender confidence that the court is honoring, rather than subverting, binding precedent.

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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