I have only just begun reading the D.C. Circuit's decision in Latif, but it already clear to me that it is a very big deal. Judge Janice Rogers Brown, for the majority, expressly adopts a presumption in favor of the government's evidence in Guantanamo habeas cases--something the lower courts had declined to do on which the D.C. Circuit had so far maintained a silence. Here is how she describes the "presumption of regularity" she finds:
the district court has operated under a case management order that specifically authorized reliance on evidentiary presumptions. See In re Guantanamo Bay Detainee Litig., 2008 U.S. Dist. LEXIS 97095, at *104 (D.D.C. Nov. 6, 2008) ("The Merits Judge may accord a rebuttable presumption of accuracy and authenticity to an evidence the government presents as justification for the petitioner's detention if the government establishes that the presumption is necessary to alleviate an undue burden presented by.the particular habeas corpus proceeding."). The Government has frequently invoked this order in urging a presumption that its evidence is accurate, but the district court, with no guidance from us, has been reluctant to grant anything more than a presumption of authenticity. See BENJAMIN WITTES, ROBERT M. CHESNEY & LARKIN REYNOLDS, The Emerging Law of Detention 2.0: Guantanamo Habeas Cases as Lawmaking, at 52-53 nn. 237-43 (May 12, 2011) (citing cases granting a presumption of authenticity but not accuracy), http://www.brookings.edu/papers/2011/05_guantanamo_wittes.aspx (last visited September 30, 2011). Aside from our silence, there are at least two other reasons why the district court has not applied a presumption of accuracy.
Confusion about the nature of the presumption may account for the district court's reluctance. In an order applicable to the present case, the district court held, "any evidence presented by the government that has been created and maintained in the ordinary course of business should be afforded a presumption of authenticity," Dist. Ct. Docket No.
606, but the court rejected the government's request for a presumption of accuracy "for the reasons stated by Judge Kessler in Ahmed v. Obama, 613 F. Supp. 2d 51, 54-55 (D.D.C. 2009) and Judge Kollar-Kotelly in Al Mutairi v. United States, [644 F. Supp. 2d 78 (D.D.C. July 29, 2009)]." Id. Those cases misunderstood the nature of the presumption. In Ahmed and Al Mutairi, the district court assumed the requested presumption would go to the truth of "the facts contained in the Government's exhibits." Ahmed, 613 F.Supp. 2d at 55. Since "the accuracy of much of the factual material contained in the [Government's] exhibits [was] hotly contested," id., quoted in Al Mutairi, 644 F. Supp. 2d at 84, and the evidentiary dispute in Ahmed involved allegations that the relevant statements were "obtained by torture," Ahmed, 613 F. Supp. 2d at 55, the court was rightly disinclined to grant them a presumption of truth. But the presumption of regularity does not require a court to accept the truth of a nongovernment source's statement.
The confusion stems from the fact that intelligence reports involve two distinct a c tor s - the non-government source and the government official who summarizes (or transcribes) the source's statement. The presumption of regularity pertains only to the second: it 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. There are many conceivable reasons why a government document might accurately record a statement that is itself incredible. A source may be shown to have lied, for example, or he may prove his statement was coerced. The presumption of regularity--to the extent it is not rebutted--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.
Another reason the district court has denied the Government's motions for a presumption of accuracy may be that such a presumption is often unnecessary or irrelevant. The Government has frequently been able to prove its detention authority without relying on any presumption that its records are accurate. And in many cases, detainees do not challenge the Government's recordkeeping. Instead, they attack the sufficiency of the evidence, or they claim that the Government's information is unreliable because it resulted from harsh interrogation techniques, multiple levels of hearsay, or unknown sources.
This case presents a different question because Latif's sole challenge is to the accuracy of the Government's [REDACTION]. When the detainee's challenge is to process itself, should a presumption of regularity apply to the official government document that results? We think the answer is yes.