JURIST Guest Columnists Mark Denbeaux, Nick Stratton and Lauren Winchester of Seton Hall University School of Law say the right to a meaningful habeas corpus proceeding by Guantanamo detainees has been complicated by a recent decision making it more difficult for detainees to challenge the evidence against them…

With the US Court of Appeals for the District of Columbia Circuit decision in Latif v. Obama on October 14, 2011, the right to a meaningful habeas corpus proceeding established in Boumediene v. Bush is now a nullity. By solving the puzzle caused by the voluminous redactions in the 112 page opinion, understanding prior habeas case law, and pondering evidentiary standards, it became apparent how flimsy the record was upon which this crucially important decision rests. A habeas petition can now be denied when the government relies on a single document — an interrogation report — compiled in what the dissent describes as “the fog of war.” In addition, after Latif, district court judges are required to view reports by interrogators containing translated material as accurate, shifting the burden to the detainee to prove inaccuracy. Subject to this high burden and with limited resources, the detainee will be left challenging the credibility of the subject of the interrogation — himself. Further, through muddled vocabulary and misapplied hypotheticals, the majority hides the fact that the presumption’s application to Latif’s interrogation report will prevent him from challenging the only evidence against him. The effect of the presumption on all detainees who are recorded as having given incriminating statements in their interrogations is the creation of a Catch-22.

How to Overturn a District Court Judge Who Did Not Clearly Err

Since the outset of habeas proceedings, district court judges have assessed the reliability of intelligence documents against claims of mistranslation and lack of corroboration. The DC Circuit has upheld a number of these findings (Barhoumi v. Obama, Al Alwi v. Obama, Khan v. Obama), and even overturned one reliability finding (Bensayah v. Obama). Dissenting Judge David Tatel, however, noted that Latif contains a feature not present in the others: the government lost because the district court found the dispositive government report to be unreliable.

Adnan Farhan Abd Al Latif is a Yemeni citizen who was seized by Pakistani authorities and held at the Guantanamo Bay detention facility since January 2002. In his July 21, 2010 decision, Judge Kennedy granted Latif’s habeas petition, concluding that the government failed to demonstrate Latif’s detention is lawful because it primarily relied on a document that was not sufficiently reliable, the document had no corroboration, and Latif’s alternative story to explain his travel was at least corroborated by medical records. Instead of reviewing Judge Kennedy’s thorough findings of fact for clear error, the DC Circuit reviewed de novo his decision not to give the government document a presumption of accuracy. In so doing, the DC Circuit avoided ruling on the merits of Judge Kennedy’s determination that the report was unreliable. The majority disguises the fact that it could not overturn Judge Kennedy on the merits by creating a new, and confusing, rule of law.

The Meaning of the Presumption and its Practical Application in the Guantanamo Context

The DC Circuit’s mandated use of the presumption of regularity in intelligence reports is a covert attempt to circumvent the intent of Boumediene. According to the majority, the presumption presumes the interrogator accurately recorded and compiled the report, though it does not presume the information from the third party source is true. In Boumediene, the Supreme Court stated several reasons why Combatant Status Review Tribunals (CSRTs) fell short of the procedural protections of habeas proceedings. One reason was that the CSRTs accorded a presumption of validity to government evidence. Although the presumption applied by the DC Circuit is that of regularity (and sometimes accuracy), since there is no practical way for a detainee to rebut the presumption in the context of a report of his own interrogation (see paragraphs below), what was just a presumption of accuracy is, for all intents and purposes, a presumption of validity. Thus, Latif renders Article III habeas proceedings as limited as the flawed CSRT process.

To illuminate how the presumption works, the majority utilizes a hypothetical that does not properly apply to Latif’s case. The hypothetical depicts a government intelligence officer taking the statement of a third party informant. The majority would have us presume that the officer accurately wrote down what the third party informant said, though not presuming the informant’s statement was itself true. This seems to make sense until you apply it to the facts of Latif. A fair and thorough reading of the opinion suggests that the document and information being redacted is a report from an interrogation of Latif that contains opponent-party admissions. The interrogation likely involved an interrogator, a translator, and Latif. Thus, the third party informant in the majority’s hypothetical is Latif himself.

The likelihood that this intelligence document is an interrogation report with admissions is confirmed by the fact that the Latif opinion redacts part of the un-redacted Al-Bihani opinion. The Al-Bihani opinion discusses how statements in interrogations are treated as opponent-party admissions and that translation does not affect their status as an admission, despite technically rendering the statements as hearsay. The incriminating statements at issue likely have something to do with Latif’s travels and reasons for being at certain locations at certain times based on the district court’s finding that his alternative story was plausible.

Applying the presumption of accuracy to the interrogation report, the document upon which the government’s entire case turns, the district court will have to deny Latif’s petition. If the presumption is applied, the report is an accurate account of what the detainee said through a translator. Therefore, under Al-Bihani, we have an admission from a party-opponent in an accurate government document that does not lose its status as an admission even though a translator was used. This means the trier of fact is weighing an accurate account of an admission against the detainee’s word and any other evidence he presents. The accuracy of the report (and therefore the accuracy of the recording of this admission) will not be questioned by the trier of fact unless and until the detainee presents at least a preponderance of the evidence rebutting the accuracy. Practically speaking, the detainee will not have any evidence beyond his own word to rebut this presumption of accuracy. Therefore, the trier of fact will likely be weighing an admission (usually weighed very heavily) against whatever evidence the detainee may be able to produce.

Contrast the result if the presumption is not applied. The accuracy of the report is automatically in question, and the government must prove it is accurate. The detainee can give his account, and the trier of fact will balance what is before him to determine whether or not the report is an accurate account of the interrogation. By affording the detainee the opportunity to challenge the accuracy (and making the government prove the accuracy) at this lower standard, the trier of fact will necessarily view and scrutinize more evidence and make a determination based on the whole picture. If the report’s accuracy is challenged, the admission is challenged, and the trier of fact does not have to afford the admission so much weight. Potential errors in interrogation reports would likely be brought up in all detainees’ habeas cases, so the presumption would likely never apply to these types of government documents; however, this only requires the government to corroborate its reports and supply enough evidence so it does not have to rely solely on one report.

Even in an everyday situation where information and evidence is much more readily available, a court may choose not to apply such a presumption. Consider a car accident where an officer comes on scene and one party only speaks Spanish, while the officer does not. Fortunately, another person on the scene speaks fluent Spanish and agrees to facilitate a conversation between the officer and the party. The officer’s report of the conversation includes an admission from the party that he did not slow down when the light turned yellow even though he probably could have stopped. Leaving hearsay issues aside (hearsay is automatically allowed into evidence in all Guantanamo habeas cases) would the court automatically presume the accuracy of the report in this situation, or would the court consider using its discretion to not apply the presumption, and balance all of the factors and evidence available?

The Catch-22

Applying the presumption of accuracy, Latif is faced with a Catch-22. If the report is presumed accurate, then his only option is to attack the reliability of the non-government source, himself. Under the presumption of accuracy, Latif must show by at least by a preponderance of the evidence, that the interrogator did not accurately record or collect the information in the interrogation report. In order to do so, his attorneys would need to present evidence that, for practical purposes, is unavailable to them because there is little likelihood that the government will allow the attorneys to interview the interrogator and translator, and the existence (or continued existence) of a tape of the interrogation is highly doubtful. Instead, the sole evidence presented will be the detainee’s own testimony that he did not say what is in the report, and in doing so he puts his own credibility on the line. Unable to rebut the presumption, Latif will need to argue that the underlying truth of the report is in question. However, the underlying truth goes to Latif’s own admissions and statements. In order to attack his admission, Latif must argue either that he himself was not credible at the time (thus undermining his current credibility) or that other circumstances, such as torture or coercion, led to his admission (which the federal courts have been loath to acknowledge or consider in habeas proceedings).

If a document is presumed to be accurately recorded, all statements within the document are presumed to have been said. Assuming Latif cannot rebut the accuracy, the only argument he has is to say that what he is reported to have said is false in substance. He can no longer argue that he did not say those words; instead he must prove the words he said were lies. The presumption requires that Latif call himself a liar for saying something he did not say, because he cannot adjudicate the fact that he never uttered the words. And this conundrum does not just apply to Latif; all detainees have interrogation reports, and many detainees will face this problem. The majority glosses over the issue by discussing “non-government sources” rather than the reality that detainees, in order to prove their testimony is credible enough to rebut the presumption, must prove they were incredible in the first instance.

The consequence of the DC Circuit’s decision in Latif is an opinion that singlehandedly destroyed the Great Writ for Guantanamo detainees. The Latif decision, and effective repeal of Boumediene, rests on a single interrogation report, translated and uncorroborated, now required to be viewed through a blurry lens of forced legitimacy. In the end, however, there is no legitimacy in a system that creates insurmountable hurdles to the ultimate goal — discerning the truth and ruling upon it.

Professor Denbeaux is the Director of the Seton Hall Law School Center for Policy and Research, which is best known for its dissemination of the internationally recognized series of reports on the Guantánamo Bay Detention Camp. The Guantánamo report series is primarily produced by Seton Hall Law students of all levels. Nick Stratton and Lauren Winchester are research fellows for the Center.

Suggested citation: Mark Denbeaux, Nick Stratton & Lauren Winchester Latif v. Obama: Redaction Riddle Resolved, JURIST – Forum, Jan. 14, 2012, http://jurist.org/forum/2012/01/denbeaux-stratton-winchester.php.