Brian Foster of Covington & Burling, who represents several Guantanamo detainees, writes in with the following comments on my defense of CIA lawyer Jonathan Fredman---and the case of his former client, Adnan Latif:
I’m interested in the basis and implications of your defense of Jonathan Fredman. As I understand your post, you believe Fredman has been unjustly accused based on an official government document (found here beginning at page 13), purportedly created in the ordinary course of business, that attributes to him a statement that he claims he did not make. And you believe based on numerous flaws in the document that the document is unreliable, and therefore that Fredman's denial should be believed and the document disregarded. Good thing Fredman’s not a Guantanamo detainee. Under Latif, the analysis would come out the other way, even though Fredman and Latif are similarly situated. Indeed, while acknowledging that Judge Tatel had the better argument on appeal, you indicated that Judge Kennedy may have gotten the case wrong in the first instance---despite numerous flaws in the document and Latif’s repeated denials. (See, e.g., here, here, and here.) Setting aside the double standard when the allegedly misquoted person is a CIA lawyer rather than a Guantanamo prisoner, this Fredman episode is instructive in another way: it shows exactly why the DC Circuit’s indefinite-detention jurisprudence is tilted too strongly in favor of the government. Let’s assume Fredman’s denial is genuine and he never made the statement attributed to him. If a routine document like meeting minutes can be so badly botched, it’s even more likely that a non-routine document like an interrogation report from the field of battle or a remote island prison may be mistake-ridden. And just like these minutes, interrogation reports do not purport to be verbatim summaries. Unlike the minutes, interrogation reports have multiple additional sources for error: mistranslation (in one or both directions), cultural miscues, misguided assumptions, etc. The potential for mistakes similar to the Fredman episode is vastly greater with respect to interrogation summaries. It thus should be beyond question that judicial reliance on isolated words and phrases in interrogation reports to justify the indefinite detention of detainees is a manifest miscarriage of justice. Again, Fredman is lucky he’s on the outside rather than the inside of Guantanamo.
I agree with Foster that the Fredman episode a good illustration of why affording government documents a presumption of regularity is not a good idea in Guantanamo cases. That's why I argued from the beginning in my many posts about Latif that Judge David Tatel's dissent was stronger than the majority opinion. I still believe that, and the Fredman incident is a good illustration of what happens when we take hastily written notes compiled for a different purpose and apply them years later with a presumption of regularity to evaluating someone's character. To the extent that Foster, however, is suggesting that my view reflects a "double standard when the allegedly misquoted person is a CIA lawyer rather than a Guantanamo prisoner," I disagree. Foster's view is predicated on three posts (this one, this one, and this one) in which I suggested that as an original construction of the evidence, Judge Janice Rogers Brown's reading of it might be preferable to the one that the district court adopted. As I explained at the time the less-redacted version of the opinion became public,
The new information available in the opinion complicates matters for me only in one sense: It gives me a certain sympathy for the majority judges’ frustration at district court Judge Judge Henry Kennedy’s assessment of the facts. While that frustration should not have spontaneously generated a presumption of regularity or caused the court so completely to abandon its duty of deference to the lower court on factual matters, it is worth noting. Indeed, Latif seems to me to be a case in which both the district court and the appeals court have gotten big things wrong---the appeals court seems to have done a better initial job than the district court did of processing the factual record. That is, it did a better job, I think, of being a district court. The trouble is that it is not a district court. And the majority’s irritation at the district court’s handling of its responsibility has caused it to ignore its own limited role as an appellate body. . . . Reading through the fuller opinion, I was found myself having no small sympathy for the instinct that lay behind Judge Brown’s opinion---that to some considerable degree, the credibility of the Report Judge Kennedy rejected is bolstered by Latif’s own subsequent denials of it. More broadly, the opinion is animated by a sense that Judge Kennedy had made every possible inference in Latif’s favor in a fashion that led to a manifestly wrong outcome: the belief that it was more likely than not that Latif was not part of enemy forces. Judge Brown may well be right about that. Judge Tatel at one point notes that “My colleagues’ interpretation of the evidence is undoubtedly plausible.” Indeed, I would go a step further. At least to the extent the current redactions permit us to analyze the case, Judge Brown’s reading of them strikes me as very likely preferable to the one the district court adopted.
I don't see where Foster derives any kind of double standard from this passage. In fact, I would apply the exact same standard to the Fredman "minutes" as I would to the intelligence report at issue in Latif: In neither case would I apply a presumption of regularity. Rather, in both cases, I would regard the document as probative to the degree one considers it reliable, and I would evaluate its reliability without any presumption at all. In Latif's case, if I had been the district judge, the question would be very hard for me and I think---though I'm not sure---that my reading of the facts would be closer to the D.C. Circuit majority's than to Judge Kennedy's (though I would certainly have affirmed Judge Kennedy's opinion had I been an appellate judge). In Fredman's case, I think the document in question 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. One further note on the Latif comparison. In Latif, the case should really have turned not on a presumption but on the degree to which the report in question was corroborated or contradicted by other materials and by its own flaws; the majority skated around this exercise by finding it presumptively reliable. But again, this was highly mischievous, and I think the right approach in the Fredman case should be to look at corroborating materials. In this instance, we know there exists a contemporaneous trip report that Fredman filed with his agency---a report that could go a long way to corroborating or refuting the relevant document on its major substantive points. My view of the "minutes" would certainly change if that document were to corroborate it on the quotations, or even the ideas, in question. By contrast, I would think if Fredman's contemporaneous account to his own agency was consistent with his own account to the committee, that would be fatal to the credibility of the minutes.