I have written extensively on the D.C. Circuit's Latif decision (here and here and here and here and here)--all with the I-hope-candid awareness that I did not know what lay behind the extensive redactions that mar both the opinion itself and Judge David Tatel's dissent. The less-redacted version of the decision that came out Friday partially pulls off the mask and thus allows a revisiting of the case. The new version still contains significant redactions--including whole pages in spots. But far more of the decision is available to the public now, including a lot more information about the intelligence report at the case's heart. The new information does not, at the end of the day, change my view of the case. I still think Judge Tatel has the better of the argument. The decision still suffers from a sense of the rules having changed when they produced a detainee victory--a presumption of regularity having magically materialized with respect to material whose credibility the the lower court doubted. And Judge Tatel's criticism of Judges Janice Rogers Brown and Karen LeCraft Henderson for having effectively replaced the district court's fact-finding with their own--and all without having found any of the district court's findings to be clearly erroneous--still seems to me, alas, valid. The new information available in the opinion complicates matters for me only in one sense: It gives me a certain sympathy for the majority judges' frustration at district court Judge Judge Henry Kennedy's assessment of the facts. While that frustration should not have spontaneously generated a presumption of regularity or caused the court so completely to abandon its duty of deference to the lower court on factual matters, it is worth noting. Indeed, Latif seems to me to be a case in which both the district court and the appeals court have gotten big things wrong--the appeals court seems to have done a better initial job than the district court did of processing the factual record. That is, it did a better job, I think, of being a district court. The trouble is that it is not a district court. And the majority's irritation at the district court's handling of its responsibility has caused it to ignore its own limited role as an appellate body. The D.C. Circuit Review blog has done a nice job of culling the new material from the main opinion:
The new version of Judge Brown’s opinion for the court reveals more about the content of the government report that was held to merit a presumption of regularity.
Critically, the Report purports to summarize an actual interview with Latif himself– not the anonymous hearsay we rejected in Parhat. Rather than “bottom-line assertions,” the Report tells a story that a court can evaluate for internal consistency, and for consistency with other evidence. And the Report includes enough biographical information to support an inference that Latif was indeed the subject of the interview.
Neither of the flaws Latif points to [in the Report] rebuts the presumption of regularity. At worst, they suggest the presence of minor transcription errors. But tangential “clerical errors” do not render a government document unreliable. It is almost inconceivable that a similar mistake could have resulted in the level of inculpatory detail contained in the rest of the Report. Consider Latif’s reported admissions that (1) ”Alawi talked about jihad” with Latif, (2) “Alawi took him to the Taliban,” (3) the Taliban “gave him weapons training,” (4) the Taliban “put him on the front line facing the Northern Alliance north of Kabul,” and (5) “[h]e remained there, under the command of Afghan leader Abu Fazl, until Taliban troops retreated and Kabul fell.” What series of innocent statements could possibly have been so badly corrupted, whether by misinterpretation or mistranscription?
The dissent also fails to account for Latif’s incriminating statements about being escorted to the Taliban and receiving weapons training, and does not explain why, if these inculpatory statements were produced by government agents filling gaps in their comprehension “with what [they] expected to hear,” those agents would invent the counterintuitive claim that Latif “never fired a shot” during his time on the front lines with the Taliban.
The newly released material mentions statements Latif made in captivity that allegedly corroborate the Report.
In interviews that took place during Latif’s confinement at Guantanamo, he confirmed several additional details of the Report, though he ascribed an exclusively medical purpose to his journey and disclaimed any involvement with the Taliban. In 2002, for example, Latif confirmed that he was from ’Udayn, that his mother’s name is Muna, and that he travelled to Afghanistan via Sana’a, Karachi, and Quetta, as stated in the Report.
Many characters from the Report’s dramatis personae reappear in Latif’s subsequent interrogations, sometimes playing different parts in his narrative with changes to the spelling of their names. For example, the mysterious Ibrahim appears as an itinerant charity worker, not a jihadi recruiter, but his role is familiar. In March 2002, more than a year after the initial interview on which the Report was based, Latif confirmed that Ibrahim met him in Yemen, convinced him to travel, reunited with him at a mosque in Kandahar, hosted him there in Ibrahim’s family home for three days, and then took him to his next destination in Afghanistan–all details that also appear the Report. But Latif said his time in Kabul was spent memorizing the Koran at the institute, not training for jihad. In the same interview, Latif confirmed that he was guided over the border from Afghanistan into Pakistan by Taqi Ullah (not Taqi Allah as the name was rendered in the Report), and he identified Abdul Fadel (not Abu Fazl) as the imam of the mosque in Kabul (not a Taliban commander). . . . In March and April 2002 interrogations, Latif identified Abu Bakr of the Arab Emirates, Awba (not Abu Hudayfa) of Kuwait, and Hafs (not Abu Hafs) of Saudi Arabia, among others, as three of the teachers who stayed with him at the study center in Kabul (not fellow Taliban fighters).
This provides some context for the D.C. Circuit’s conclusion that the district court failed to consider “striking similarities between Latif’s exculpatory story and the Report”:
What makes Latif’s current story so hard to swallow is not its intrinsic implausibility but its correspondence in so many respects with the Report he now repudiates. Like Dorothy Gale upon awakening at home in Kansas after her fantastic journey to the Land of Oz, Latif’s current account of what transpired bears a striking resemblance to the familiar faces of his former narrative. Just as the Gales’ farmhands were transformed by Dorothy’s imagination into the Scarecrow, Tin Man, and Cowardly Lion, it is at least plausible that Latif, when his liberty was at stake, transformed his jihadi recruiter into a charity worker, his Taliban commander into an imam, his comrades-in-arms into roommates, and his military training camp into a center for religious study. Although the [district] court noted Latif’s “innocent explanations for the names that appear in the [Report],” and addressed them one by one, the court failed to consider the cumulative effect of all these uncanny coincidences as our precedent requires.
Reading through the fuller opinion, I was found myself having no small sympathy for the instinct that lay behind Judge Brown's opinion--that to some considerable degree, the credibility of the Report Judge Kennedy rejected is bolstered by Latif's own subsequent denials of it. More broadly, the opinion is animated by a sense that Judge Kennedy had made every possible inference in Latif's favor in a fashion that led to a manifestly wrong outcome: the belief that it was more likely than not that Latif was not part of enemy forces. Judge Brown may well be right about that. Judge Tatel at one point notes that "My colleagues' interpretation of the evidence is undoubtedly plausible." Indeed, I would go a step further. At least to the extent the current redactions permit us to analyze the case, Judge Brown's reading of them strikes me as very likely preferable to the one the district court adopted. The trouble is that even if it is, the discipline of being an appellate judge is that one only gets to interfere with district court train wrecks to the extent that some of the found facts are clearly erroneous--which she could not find in this case--or to the extent that as a matter of law, the found facts add up to something other than what the district court did with them. Even with my new-found sympathy for Judge Brown's complaint against Judge Kennedy, she clearly exceeded this brief. In other words, it's very possible that Latif was mishandled at both the district and circuit levels. The petitioner should probably have lost at the district court--but having prevailed on the basis that he did, he should also have prevailed at the court of appeals.