Detention & Guantanamo

Thoughts on Latif #1

By Benjamin Wittes
Wednesday, November 9, 2011, 11:24 PM

I have now read the entirety of Latif, and I am--quite honestly--not entirely sure what to make of it. For one thing, the redactions are extensive, far more so than in the normal D.C. Circuit habeas case. They involve matters central to the disposition of the case, and they thus make much of the dispute between Judges Janice Rogers Brown and Karen LeCraft Henderson, on one side, and David Tatel, on the other, more than a little bit difficult to discern. While I emerged from my reading of the case with a strong sense that Judge Tatel has the better of the argument here, that may well be because his argument is less broken up by blacked-out passages and pages than is Judge Brown's. It thus comes through the fog of secrecy a little more clearly. Their dispute--which is often quite heated--has a number of facets: Whether the district court properly evaluated the detainee's credibility and how district court facts should be evaluated on appeal, for example. All are interesting. But in this post, I want to focus on what I think is the major importance of this case, which is--as I noted earlier--the majority's adoption of a "presumption of regularity" with respect to the government's presentation of evidence against detainees in the form of intelligence reports. The issue of evidentiary presumptions is one that Bobby and Larkin and I discussed in some depth in Chapter 5 of our report, "The Emerging Law of Detention 2.0" (which is cited, incidentally, both in the majority and dissenting opinions), and it is an issue with which the lower court has wrestled repeatedly. To make a long story short, the government has asked the district court in habeas cases--following some suggestive language in Hamdi--to afford its evidence a presumption of both authenticity and of accuracy. As we summarized in the report, it has sometimes prevailed in its request for a presumption of authenticity, but the lower court judges have unanimously refused to afford intelligence reports any presumption of accuracy:

Requesting a presumption of accuracy (or “reliability” or “credibility”) for the government’s evidence is a different matter. Whereas authenticity speaks to a threshold question of admissibility, accuracy speaks to the subsequent question of what weight the fact finder should attach to a particular item of admitted evidence. That is to say, to presume the accuracy of evidence would be to presume the evidence establishes that which it is offered to prove. Such a presumption, if given, would be consistent to some degree with the language in Hamdi, where the plurality expressly contemplated the possibility of a rebuttable presumption in favor of the government’s evidence. But as noted above, the judges in the post-Boumediene habeas cases have elected instead to place the burden of proof on the government. A presumption of accuracy for the individual items of evidence the government puts forward would be in considerable tension with that approach. Given this understanding about the nature of a presumption of accuracy, it is unsurprising that none of the publicly available rulings on the issue have favored the government—even as the government continues to request just this type of presumption.

The D.C. Circuit has now upset this apple cart--granting a form of this accuracy presumption. Judge Brown's opinion casts it narrowly, as an incremental development in the court's treatment of hearsay reliability questions. She stresses that she is not presuming that the statements contained in the intelligence report are true, merely that they have been accurately described:

intelligence reports involve two distinct actors – 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.

Judge Tatel, by contrast, sees it as more sweeping. For him, the presumption of regularity in other settings comes from judicial confidence that the regular production of the sort of document in question tends to produce accurate government records. No such assumption, in his view, makes sense about intelligence reports produced in the fog of war, particularly when district judges in the past have found significant errors in these documents:

In sum, given how and where we typically apply the presumption of regularity, and given the balance this circuit has already struck on how to deal with hearsay evidence in Guantanamo Bay cases, and given the seasoned observations of our district courts about the reliability of such evidence, the question still unanswered to my satisfaction is "Why?" Why does this court now require district courts to categorically presume that a government report--one created in a [REDACTION] near a [REDACTION] with multiple layers of hearsay, and drafted by unidentified translators and scriveners of unknown quality--is accurate? Whether the presumption can be overcome by a preponderance of the evidence or by clear and specific evidence--this court never says which--I fear that in practice it "comes perilously close to suggesting that whatever the government says must be treated as true," see Parhat, 532 F.3d at 849. In that world, it is hard to see what is left of the Supreme Court's command in Boumediene that habeas review be "meaningful."

Whether one sees this development as a good thing or a bad, my gut tells me that Judge Brown is probably wrong when she downplays the significance of the holding--stressing that "the presumption likely will never play a larger role in the resolution of a case than it does here (because the reliability of the Report is the central dispute), and even here, the presumption is not dispositive." Rather, I suspect that Judge Tatel is probably correct that it is highly significant. At a minimum, it puts the burden of proof on the detainee challenging a government intelligence report (or, less frequently, on the government when a detainee tries to introduce a government intelligence report) to show that there is some reason not to credit the translation, transcription, and summary of a complicated interview. Given the role that these intelligence reports play in the Guantanamo cases, that is a big deal. And it will further weaken the hand of detainees in the district court. Until today, when confronted with an intelligence report, the government had to persuade the judge that the report summarized an interview that (a) was accurately translated, (b) was accurately recorded, (c) was accurately summarized, and (d) whose relevant statements were likely true. Now, the D.C. Circuit has instructed the lower court to simply presume points (a) through (c) in the absence of some reason to doubt them. The government need only take responsibility for (d). That's a big change. And it will make a real difference.