Latif v. Obama

• Decision Date: 14 October 2011
• Docket Number: No. 10–5319.,10–5319.
• Citation: 666 F.3d 746
• Parties: Adnan Farhan Abdul LATIF, Detainee, Camp Delta, et al., Appellees v. Barack OBAMA, President of the United States, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

666 F.3d 746

Adnan Farhan Abdul LATIF, Detainee, Camp Delta, et al., Appellees

v.Barack OBAMA, President of the United States, et al., Appellants.

No. 10–5319.

United States Court of Appeals, District of Columbia Circuit.

Argued March 15, 2011.Decided Oct. 14, 2011.

Appeal from the United States District Court for the District of Columbia (No. 1:04–cv–01254).August E. Flentje, Attorney, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Ian Heath Gershengorn, Deputy Assistant Attorney General, and Robert M. Loeb, Attorney.

Philip A. Scarborough argued the cause for appellees. On the brief were S. William Livingston, Roger A. Ford, and David H. Remes. Brian E. Foster entered an appearance.

Before: HENDERSON, TATEL and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

Concurring opinion filed by Circuit Judge HENDERSON.

Dissenting opinion filed by Circuit Judge TATEL.

BROWN, Circuit Judge:

The United States appeals the district court's grant of the writ of habeas corpus to detainee Adnan Farhan Abd Al Latif. Three errors in the district court's analysis require us to vacate that decision. First, the court failed to accord an official government record a presumption of regularity. Second, the district court failed to determine Latif's credibility even though the court relied on his declaration to discredit the Government's key evidence. See Al–Adahi v. Obama, 613 F.3d 1102, 1110 (D.C.Cir.2010). Third, the court's unduly atomized approach to the evidence is one we have rejected. See id. We remand so the district court can evaluate Latif's credibility as needed in light of the totality of the evidence, including newly available evidence as appropriate.

I

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[Redacted] In a declaration filed with the district court in 2009, Latif denies ever being part of the Taliban and offers an innocent explanation for his journey. Latif says he left Yemen in 2001 on a quest for medical treatment for head injuries he suffered in a 1994 car accident. He went to Pakistan to get help from Ibrahim, a Yemeni he had met at a charitable organization in Yemen. When Latif arrived in Quetta, Ibrahim had already left Pakistan, so Latif followed him to an Islamic studies institute in Kabul, Afghanistan. But once Latif caught up to Ibrahim at the institute, Ibrahim had to leave again and told Latif to wait for him there until they could travel together to Pakistan. After waiting in vain for several weeks, Latif says, he then returned to Pakistan without Ibrahim, fleeing U.S.-supported forces he had been told were advancing from northern Afghanistan.

The district court granted Latif's habeas petition following briefing and a hearing in which Latif declined to testify. Abdah v. Obama (Latif), 2010 WL 3270761, 2010 U.S. Dist. LEXIS 83596 (D.D.C. July 21, 2010). [Redacted]

II

In a Guantanamo detainee case, we review the district court's “specific factual determinations” for clear error, and its ultimate grant or denial of habeas de novo. Almerfedi v. Obama, 654 F.3d 1, 5 (D.C.Cir.2011). As in our prior cases, we assume, without deciding, that the district court was correct to hold the Government to the preponderance-of-the-evidence standard. See id., 654 F.3d at 5 n. 4; Al–Bihani v. Obama, 590 F.3d 866, 878 & n. 4 (D.C.Cir.2010); see also Boumediene v. Bush, 553 U.S. 723, 787, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (“The extent of the showing required of the Government in these cases is a matter to be determined.”); Al–Adahi, 613 F.3d at 1105 (“Although we doubt ... that the Suspension Clause requires the use of the preponderance standard, we will not decide the question in this case.”). To meet its burden, “the government must put forth credible facts demonstrating that the petitioner meets the detention standard, which is then compared to a detainee's facts and explanation.” Almerfedi, 654 F.3d at 6.

At the heart of the Government's case is [redacted]

Ordinarily, at this point in our analysis, we would simply review the district court's comparison of the Government's evidence with the “detainee's facts and explanation,” bearing in mind that the ultimate burden is on the Government to establish Latif's detention is legal. Id. We pause here, however, because the district court expressly refused to accord a presumption of regularity to the Government's evidence, and on appeal the Government continues to assert its Report is entitled to such a presumption.

A

“The presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C.Cir.2007). The presumption applies to government-produced documents no less than to other official acts. See Riggs Nat'l Corp. v. Comm'r, 295 F.3d 16, 21 (D.C.Cir.2002) (holding that “an official tax receipt” of a foreign government “is entitled to a presumption of regularity”). But Latif (and our dissenting colleague) argue no such presumption can be applied in Guantanamo cases—at least not to [redacted] reports prepared in stressful and chaotic conditions, filtered through interpreters, subject to transcription errors, and heavily redacted for national security purposes.

Since the problems Latif cites are typical [redacted], the rule he proposes would subject all such documents to the he-said/she-said balancing of ordinary evidence. It is impossible to cure the conditions under which these documents were created, so Latif's proposed rule would render the traditional presumption of regularity wholly illusory in this context. We conclude first that intelligence documents of the sort at issue here are entitled to a presumption of regularity, and second that neither internal flaws nor external record evidence rebuts that presumption in this case.

Courts sensibly have anticipated that some sort of presumption is proper in the Guantanamo context, but until now we have not directly addressed the question. The dissent interprets our silence heretofore as disapproval and suggests that a presumption in favor of the Government's evidence in this case “inappropriately shift[s] the burden” of proof from the Government to the detainee. Dissenting Op. at 783. A Supreme Court plurality said just the opposite, however—and in a case involving the military detention of an American citizen, no less:

[T]he Constitution would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria.

Hamdi v. Rumsfeld, 542 U.S. 507, 534, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004).

When the Supreme Court extended the habeas right to non-citizen detainees in 2008, it tasked the lower courts with developing a workable habeas remedy that would give detainees a “meaningful opportunity to demonstrate” the unlawfulness of their detention, Boumediene, 553 U.S. at 779, 128 S.Ct. 2229, yet it left unaddressed the content of the governing law, id. at 798, 128 S.Ct. 2229. Boumediene noted that “common-law habeas corpus was, above all, an adaptable remedy” whose “precise application and scope changed depending upon the circumstances.” Id. at 779, 128 S.Ct. 2229. Our dissenting colleague seems to think Boumediene mandates a skeptical—if not cynical—supervisory role for the courts over the Executive branch's interactions with its detainees at Guantanamo. Dissenting Op. at 773. In our view, the Boumediene Court envisioned a much more modest judicial role. Aside from a few minimal procedural safeguards, designed to preclude the Government acting as its own judge,¹ the Court left the scope of the habeas right to the common-law-like process in which we have been engaged ever since: “[T]he Suspension Clause does not resist innovation in the field of habeas corpus. Certain accommodations can be made to reduce the burden habeas corpus proceedings will place on the military without impermissibly diluting the protections of the writ.” Boumediene, 553 U.S. at 795, 128 S.Ct. 2229.

In that spirit, the district court has operated under a case management order that specifically authorized reliance on evidentiary presumptions. See In re Guantanamo Bay Detainee Litig., 2008 WL 4858241, at *1–3, 2008 U.S. Dist. LEXIS 97095, at *104 (D.D.C. Nov. 6, 2008) (“The Merits Judge may accord a rebuttable presumption of accuracy and authenticity to any evidence the government presents as justification for the petitioner's detention if the government establishes that the presumption is necessary to alleviate an undue burden presented by the particular habeas corpus proceeding.”). The Government has frequently invoked this order in urging a presumption that its evidence is accurate, but the district court, with no guidance from us, has been reluctant to grant anything more than a presumption of authenticity. See Benjamin Wittes, Robert M. Chesney & Larkin Reynolds, The Emerging Law of Detention 2.0: Guantánamo Habeas Cases as Lawmaking, at 52–53 nn. 237–43 (May 12, 2011) (citing cases granting a presumption of authenticity but not accuracy), http:// www. brookings. edu/ papers/ 2011/ 05_ guantanamo_ wittes. aspx (last visited September 30, 2011). Aside from our silence, there are at least two other reasons why the district court has not applied a presumption of accuracy.

Confusion about the nature of the presumption may account for the district court's reluctance. In an order applicable to the present case, the district court held, “any evidence presented by the government that has been created and maintained in the ordinary course of business should be...