I don't normally agree on detention policy matters with Seton Hall's Mark Denbeaux--and there's certainly some rhetoric in this piece in Jurist that I would never use and conclusions I do not reach. That said, I recommend it to those interested in why Latif is a big deal, a point I have made more than once myself. Denbeaux's article hinges on a factual predicate I cannot at this stage endorse--not because I think it wrong, but because I do know it to be correct: that the key intelligence report on which the entire decision depends "is a report from an interrogation of Latif that contains opponent-party admissions." It is certainly true that in many cases, reports of prior detainee admissions are key evidence, and I have no reason to doubt that this may be the case here too. That said, it strikes me as more of a hypothesis at this stage than known reality. Over at the Empty Wheel blog, Marcy Wheeler offered these speculations about what the document may be:
I think the document in question is a report with the serial number TD-314/00684-02 that I take to be the CIA’s report of Pakistani claims about a significant number of detainees they turned over to the US in December 2001–basically the intake report for a chunk of detainees, possibly (given the time and place) turned over for bounty.
So let's just say that I am agnostic about whether Denbeaux's assumption is correct. That said, I think his argument is interesting in any case and would certainly correctly describe other cases that would have to be decided under Latif even if it does not describe Latif itself. Here's the nub of his argument:
Applying the presumption of accuracy, Latif is faced with a Catch-22. If the report is presumed accurate, then his only option is to attack the reliability of the non-government source, himself. Under the presumption of accuracy, Latif must show by at least by a preponderance of the evidence, that the interrogator did not accurately record or collect the information in the interrogation report. In order to do so, his attorneys would need to present evidence that, for practical purposes, is unavailable to them because there is little likelihood that the government will allow the attorneys to interview the interrogator and translator, and the existence (or continued existence) of a tape of the interrogation is highly doubtful. Instead, the sole evidence presented will be the detainee's own testimony that he did not say what is in the report, and in doing so he puts his own credibility on the line. Unable to rebut the presumption, Latif will need to argue that the underlying truth of the report is in question. However, the underlying truth goes to Latif's own admissions and statements. In order to attack his admission, Latif must argue either that he himself was not credible at the time (thus undermining his current credibility) or that other circumstances, such as torture or coercion, led to his admission (which the federal courts have been loath to acknowledge or consider in habeas proceedings). If a document is presumed to be accurately recorded, all statements within the document are presumed to have been said. Assuming Latif cannot rebut the accuracy, the only argument he has is to say that what he is reported to have said is false in substance. He can no longer argue that he did not say those words; instead he must prove the words he said were lies. The presumption requires that Latif call himself a liar for saying something he did not say, because he cannot adjudicate the fact that he never uttered the words. And this conundrum does not just apply to Latif; all detainees have interrogation reports, and many detainees will face this problem. The majority glosses over the issue by discussing "non-government sources" rather than the reality that detainees, in order to prove their testimony is credible enough to rebut the presumption, must prove they were incredible in the first instance.