Detention & Guantanamo

Thoughts on Latif #3

By Benjamin Wittes
Friday, November 11, 2011, 7:46 AM

Here's my question: Why has there been virtually no press coverage of the Latif decision? Other than this article on CNN's web page, which actually ignores the aspect of the case that makes it jurisprudentially important, a search on Google News reveals none (other than Lawfare stuff). Memo to the press: This case is important. It is far more likely, in my judgment, to provoke a cert grant than any habeas case the D.C. Circuit has decided to date. If and when it does so, it will present a novel and deeply important question to the Supreme Court: Whether the courts in reviewing these habeas cases should start with a presumption of the validity of government intelligence. If the justices hear it, they will face as well a challenge that is certainly unusual and may be unique in the history of the Supreme Court: How to handle a case, most of whose factual record is classified and therefore cannot be written about in public yet where that fact does not create a privilege claim that obviates the need to write about it? (I would be grateful to anyone who can point me to other examples of this problem in the court's history.) The case thus has a non-trivial prospect of making important law that has to be kept to a great extent secret. Before Latif gets to the Supreme Court, it may well provoke an interesting en banc dispute at the D.C. Circuit--where it is the first habeas merits case to divide a panel along ideological lines. It's well worth your time.