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Sabin Willett on Latif

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Thursday, November 17, 2011 at 11:12 PM

Sabin Willett, who represented the Guantanamo Uighurs in Parhat and Kiyemba, writes in with the following comments about Latif:

It is not hyperventilation to say, as so many have said, that Latif guts Boumediene, because — trust me —  every prisoner has an intelligence report.  Now the prisoner hasn’t just lost his judicial remedy to Kiyemba; if those reports control, factfinding is over, too.

But Latif, and before it Adahi, are not just law-of-war cases.  They may raise the eyebrow of civil procedure sachems as well.

Because despite the gnashing of teeth over Boumediene’s failure to issue a manual, the Guantanamo habeas cases have mainly been about facts.  Wedding guest or soldier?  By the time review finally got on its legs in 2008, the President had had years to winnow away the silly and outrageous detentions (and Congress hadn’t yet taken up the blood sport of preventing him from doing so). Logically, we would have expected the government to have good facts in cases that remained, and to win most of them.

Something like that was happening in the district court, but then something else quite illogical began happening.  On appeal, the government began to run the table.  No habeas win could survive.  

The district court was finding facts from old, cold and unreliable records, and so uniform results would have been a little surprising, but still possible, given the trial court’s broad factfinding discretion.  You’d expect regular affirmance on appeal of both wins and losses, because in civil practice, the trial court‘s fact-finding is rarely disturbed.  So where district court results are non-uniform, it is surprising–one might even say, conditionally improbable–that appellate results should make them so.

What’s going on here?  The circuit is making up a new standard of appellate review.

Take Adahi.  To a first approximation, Adahi is an “Oh, come on!” case: al Farouq, bin Laden at Sister’s wedding, shady characters on the bus, the Casio insignia–come on!  But Judge Kessler wasn’t asking whether Adahi had thuggy associates.  She was after the legally-relevant nut: has the government shown he is an enemy soldier?  If General Petraeus attends my sister’s wedding, am I therefore a soldier?  Suppose I go to Quantico and after ten days, they throw me out.  Am I a Marine?  (In doing this work I met a number of Marines.  Each–I am quite sure of this–would declare ten days insufficient to make a Marine of me.)

As a matter of appellate procedure, the problem was this: Adahi testified.  Judge Kessler found that testimony credible (leaving Farouq, denying he trained troops there).  Adahi’s entire testimony is, “I wasn’t a soldier.”  So if we have witness testimony the court deems credible, and it refutes enemy status, how does the circuit flip the judgment on appeal?

By not believing him, and crediting other evidence.  That used to be for the trial court–remember?

My guess is that Judge Randolph saw the appellate review problem, for in addition to his famous innovation, he noted Judge Kessler’s failure to make an express credibility determination.  Well, okay.  But she did find facts for which the only record evidence was Adahi’s testimony, so she must have found him credible.  If we’re not sure about that, why not remand for clarification?

Latif presents none of these distractions.  Even the government agrees that the circumstantial evidence is down to one document, on which everything turns.

I tried Parhat.  He had an intelligence report too.  We picked it apart, as I’m sure Latif’s lawyers must have done with their report, and as Judge Garland did in the classified Parhat opinion.  No one could make a straight-faced argument for a presumption after that was done.  You have to–I can’t say this any other way, because Parhat’s documents remain classified–but you have to see an “intelligence report”  to appreciate just how surreal the proposition is.

The trial lawyer would think this way: if this tissue of hearsay, speculation, and gossip comes in evidence at all, the trial court must at least be allowed to weigh it.  But when the circuit lays the thumb of presumption on the scale, there’s no more judicial review — not even in the court of appeals.  “Review” is in the anonymous DoD analyst who wrote the report.

Review was Judge Kennedy’s job, and he did his job.  Whether we agree or disagree with his weighing, the scale had always been his before.  This idea, I think, lies at the bottom of Judge Tatel’s thoughtful dissent.  Can the jailer’s report trump the judicial officer, in civil cases that are supposed to be a check on the jailer itself?   There’s not much evidence that anybody up at SCOTUS cares about the GTMO prisoners any more (whose imprisonments now treble WW2 detentions), but there may still be four of them who worry about trial judges.

Latif should worry the Law Faithful, too.  If my client were stuck with this presumption, the first thing I’d bawl for is discovery of every scrivener, interpreter, interrogator–every scrap, jot and tittle behind the document.  Last time we did that, in Bismullah, CIA averred the republic would be shaken to its knees.

*  *  *

Pause a moment.  A man sits in government prison for ten years and counting, on the strength of a secret document created by the jailer, in haste, from hearsay, which didn’t persuade an experienced trial judge. Does that sound like the stuff of regimes we are prone to condemn?

Even Odysseus headed for home after ten years.

The other evening I saw an old friend whose client was, in 2001, an enemy belligerent under any definition.  He was released from Guantanamo many years ago. He has a job, a family, a peaceful outlook on life; he’s grown up.  Why is he out, and Latif in?  Because he hales from the west.  After ten years, it’s not about security any more.  It’s all about politics: the politics of the 2012 elections, the politics of where you’re from.

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