Guantanamo: Litigation: D.C. Circuit

A Thought on Khan

By Benjamin Wittes
Tuesday, September 6, 2011, 11:48 AM

I have only read the D.C. Circuit's Khan opinion very quickly and may have further thoughts when I dive in a little deeper. On brief perusal, though, it seems to me that the chief importance of the decision--written by Judge Merrick Garland for himself and Judges David Sentelle and Douglas Ginsburg--is in giving the lower court more guidance concerning how to consider hearsay evidence in the form of intelligence reports.

Recall that in Parhat v. Gates, the D.C. Circuit--in another opinion by Judge Garland--rejected a CSRT judgment based on intelligence reporting where it had no basis on which to evaluate the reporting's credibility or sourcing. In Khan, the lower court judge--faced with intelligence reports he could not evaluate--responded by giving the government the opportunity to present material justifying its (and his) reliance on these reports and their underlying sources. When the government did so, Judge Bates determined that the material was reliable and proceeded to rule on of their contents. As Judge Garland summarizes the history:

The government’s evidence in Parhat was insufficient to enable the court to assess its reliability. The four intelligence reports at issue described activities “as having ‘reportedly’ occurred, as being ‘said to’ or ‘reported to’ have happened, and as things that ‘may’ be true or are ‘suspected of’ having taken place.” 532 F.3d at 846. “But in virtually every instance, the documents d[id] not say who ‘reported’ or ‘said’ or ‘suspected’ those things. Nor [did] they provide any of the underlying reporting upon which the documents’ bottom-line assertions [were] founded.” Id. at 846-47. Those deficiencies made it impossible to assess the reliability of the reports standing on their own, and no additional evidence supported their reliability. Id. at 848. We therefore set aside the CSRT’s enemy combatant determination. To facilitate meaningful review, we ruled, the government must do more than merely “submit[] documents that read as if they were indictments or civil complaints, and that simply assert as facts the elements required to prove that a detainee falls within the definition of enemy combatant." Id. at 850.

At an early stage of the proceedings in this case, the district court determined that the informant reports, standing alone, lacked adequate indicia of reliability. Khan, 646 F. Supp. 2d at 16-17. It then properly afforded the government an opportunity to submit “sufficient additional information . . . permit[ting the factfinder] to assess [their] reliability,” Bensayah, 610 F.3d at 725-26 (quoting Parhat, 532 F.3d at 849). The government responded with the declarations of the Army intelligence collectors who had met with the sources and prepared the reports. The court found that “[t]hese declarations provide the  information necessary to assess the sources’ reliability,” and “based on that information,” the court concluded that the reports by the informants were reliable. Khan, 741 F. Supp. 2d at 13-14.

Judge Garland in this opinion clearly seems to endorse Judge Bates's approach, one that differs from that of some of the other district judges. The result, he notes,

looks nothing like the intelligence reports at issue in Parhat. Unlike in Parhat, we do not have a series of documents containing naked assertions about acts that “may have” occurred or that were “reported to” have taken place, where we do not know the identity of either the documents’ authors or their sources. To the contrary, here we know that the authors of the documents are U.S. Army intelligence collectors who were on the ground in Kandahar at the time of the events in question, and we know that their sources are the three Afghan informants -- two of whom are identified by name and one by position. Nor are the materials limited to the collectors’ “bottom-line assertions”; rather, they contain the “underlying reporting” that was missing in Parhat. Also unlike the reports in Parhat, the collectors’ reports and declarations contain great detail about what each source said about the detainee’s activities.

Judge Garland's Khan opinion thus offers something of a process for answering the question his Parhat opinion earlier posed: What should a lower court do when presented with hearsay material whose reliability it can't assess? The emerging answer seems to be that the judge should flag that material, make clear that he or she will not rely on it unless its reliability is better established, and then give the government the opportunity to save it.