Tomorrow morning, the D.C. Circuit Court of Appeals will hear arguments in Abdah v. Barack Obama (Al Latif) (No. 10-5319). The argument is slated to proceed before Judges Karen LeCraft Henderson, David Tatel, and Janice Rogers Brown—first in open session, and followed, if necessary, by a classified session closed to the public. In this case, the government appeals Judge Kennedy’s July 2010 decision granting Adnan Farhan Abd Al Latif's habeas petition. The district cout held that the government had not demonstrated by a preponderance of the evidence that Latif was part of Al Qaeda or an associated force.
The government’s case before Judge Kennedy rested on the claim that Latif was “recruited to travel to Afghanistan by a member of Al Qaeda and received military training from, and then fought with, the Taliban.” The petitioner argued in the district court that a document on which the government relied to support its claims was “inherently unreliable,” and that more reliable reports contradicted information it contained. Latif argued that the document was flawed on its face, and additionally that it was uncorroborated. He argued further that the government itself did not rely on the same report in assessing his detainability during various internal reviews. The district court held that the government’s evidence about why Latif went to Afghanistan was “not corroborated,” and further wrote that the government’s allegations about Latif's training and fighting with the Taliban were lacking in support and the government had not met its burden. He disagreed with the government’s contention that, as he summarized, "Latif must be lying because he has told more than one cover story,” and he wrote that Latif’s story in a 2009 declaration was “plausible.” Based on these findings, Judge Kennedy granted Latif's petition. The government first challenges the district court’s finding that the report on which the government relied was inaccurate. It is difficult to discern the exact nature of the government’s claims here because both the government’s brief and the district court opinion it challenges have been heavily redacted. In places, entire pages of argument relating both to the report and, presumably, to other evidence have been blacked out. But, in particular, the government argues that Judge Kennedy, in finding Al Latif’s exculpatory explanation for his activities merely “plausible,” did not “properly address” the petitioner’s credibility--something he was required to do under Al Adahi. The court's conclusion about the report was, the government argues, "the product of the court's failure to address Latif's credibility and the lack of any meaningful assessment of the evidence supporting the overall accuracy of the report." The government seems also to be arguing that the petitioner’s exculpatory account did not give the district court a sufficient basis on which to reject the government’s key evidence in this case: the report. In particular, the government argues that the district court placed a “special burden” on the government to establish the report’s accuracy, and that this burden was something greater than a preponderance of the evidence. Tying the two notions together, the government contends that the court’s core finding that Latif’s explanation was “plausible” is “not a finding—either express or implied—that it was more likely than not that his alternative version of events was true,” explaining that Judge Kennedy required the government to effectively "prove a negative" regarding the veracity of the petitioner’s account. This, the government writes, is because the district court expected the government to show that the petitioner "must be lying because he has told more than one cover story" (emphasis in government's quotation of the district court). Taken together, these rulings were tantamount to imposing a higher burden than a preponderance of the evidence. Because, the government urges, Judge Kennedy did not explicitly find it more likely than not that the report was inaccurate, it committed an error that “infected” its assessment of the rest of the government’s evidence. At a minimum, as a result, the government asks the D.C. Circuit to remand the case so that the district court can make a clear finding about Latif’s credibility; it quotes the D.C. Circuit’s recent Salahi decision for the notion that a remand is required if the district court failed to “make definitive findings regarding certain key facts . . . .” The petitioner's counsel respond by emphasizing that the government’s case turns on one particular report, and urges the panel to find that the district court did not err in ruling the report unreliable. Though large sections of the petitioner’s response brief are also redacted, Latif's lawyers further assert that “[t]he evidence in this case is so one-sided that the judgment should be affirmed even if this Court reviewed de novo.” They stress the highly deferential standard of review, contending that Judge Kennedy carefully considered the government’s arguments and simply found them “unconvincing,” a finding buttressed by the judge's finding that the report was “riddled with reliability problems.” Once he discredited the report, the petitioner says, the government’s case “necessarily collapsed.” Further, there was no corroboration of Latif’s “supposed weapons training or time on the front line”; if there were any truth to those claims, the petitioner argues, there would have been some corroboration of them. Latif's lawyers call the government’s claim that Judge Kennedy elevated the government's burden of proof utterly baseless. They point to language in Judge Kennedy's opinion itself reciting the preponderance standard. (The government contends, in its reply brief, that this language was mere “lip service” to the proper standard.) Latif's lawyers also point to a curious line in the government’s brief, which contends that the district court impermissibly allowed the petitioner to benefit from a “lower burden of proof”; in reality, they say, Latif had no burden. The government concedes this point as a matter of law in its reply brief, but reasserts that the district court’s assessment of the two competing stories did not reflect application of the relevant legal standard. As to the government’s notion that the report’s reliability was supported by various declarations from government officials, the petitioner states that the court was not required to elevate officials' "generic assertions" that their agencies' reports are “generally accurate” above the specific reasons in the record why this report was unreliable. (The government responds that the fact that “nearly every detail [in the report] is concededly accurate” is highly probative of the report’s accuracy as a whole.) The government next argues that the district court’s conclusion regarding Latif’s credibility—even if it was sufficiently clear—was wrong. Latif had claimed that the reason for his travel from Yemen was to seek medical treatment, but the government argues that the court improperly gave no adverse weight to either the conclusory nature of this claim (made in Latif’s declaration) or to the lack of corroboration for it. And it argues as well that Judge Kennedy gave too much weight to medical records that Latif submitted as corroboration for his exculpatory account. Judge Kennedy failed to evaluate all of Latif’s statements together, it contends, and these contain “key inconsistencies that are highly suggestive of the development of a cover story.” On this point the government points to the D.C. Circuit’s Al Adahi opinion and its statement that “false exculpatory statements are evidence—often strong evidence—of guilt.” It further argues that Judge Kennedy failed to consider Latif’s failure to testify in evaluating his credibility. Latif’s litigation declaration is analogous to an “uncrossed allocution,” it argued; both reflect an effort to present one side of the story to the trier of fact while avoiding cross-examination. In response, Latif's lawyers frame the issue of the petitioner’s credibility as one of the petitioner’s right to present his explanation for the events in the form of his choice. Judge Kennedy, they contend, "was not required to penalize Latif for submitting a[n exculpatory] declaration.” They argue that the government waived any right “it may have had to demand that Latif testify live,” pointing out the the parties’ stipulation that the petitioner would have an opportunity to testify live and that if he did testify, he would be subject to cross-examination. On the more substantive point of whether Judge Kennedy’s finding about Latif’s credibility was erroneous, they argue that the alleged inconsistencies had “nothing to do with the allegations that he was part of al Qaeda or the Taliban.” Judge Kennedy, they note, found that the “fundamentals” of Latif’s account had “remained the same.” Accordingly, they urge the D.C. Circuit to find the district court’s finding about his cover story was not clearly erroneous. Indeed, they point out that the government’s submissions included “exactly the same type of inconsistency of which it accuses [their client].” They argue that there is a significant oversight in the government’s brief regarding Latif’s explanation of who paid for his trip: At one point, the petitioner's lawyers say, the government complains that he gave no explanation, but then eleven pages later makes mention of how the trip was financed. Latif's lawyers also emphasize the importance of various medical records showing his treatment for a head injury in the past, arguing the district court's finding that the records showed he “might . . . have sought treatment” in fact did adequately corroborate Latif’s exculpatory account. The government’s final major argument is that district court failed to consider evidence (such as the timing of Latif’s flight from Afghanistan or the fact that Latif gave a recruiter his passport) that would have corroborated the accuracy of the report, and thus failed consider all of the evidence together as a whole. On this point the government also urges remand because this evidence cannot be “unduly atomized” from the other record evidence (citing language in the D.C. Circuit's Salahi opinion). In sum, the government urges, the court's assessment leaves a “definite and firm conviction that a mistake has been committed” (quoting Awad). Here the petitioner's counsel respond that again the district court properly rejected this evidence, though redactions make precise details of their argument difficult to parse. August Flentje will argue the case for the government. Philip Scarborough will argue for Latif.