Latif v. Obama , 666 F.3d 746 ( 2011 )

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~nitco ~tatcs ([ourt of ~ppcaIs
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 15, 2011 Decided October 14, 2011
No. 10-5319
ADNAN FARHAN ABDUL LATIF, DETAINEE, CAMP DELTA, ET
AL.,
APPELLEES
v.
BARACK OBAMA, PRESIDENT OF THE UNITED STATES, ET AL.,
ApPELLANTS
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.
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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 AI-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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In
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 briefmg and a hearing in which Latif declined to
testify. Abdah Obama 2010 U.S. Dist. LEXIS
83596 .D.C. 21 201
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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, - F.3d -, 2011 U.S. App. LEXIS 11696, at *11
(D.C. Cir. June 10, 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. at 11 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 (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, - F.3d -,2011 U.S. App. LEXIS
11696, at *12-13.
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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 1105, 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 FJd 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
pre can be applied in Guantanamo cases-at least
not to reports prepared in stressful and chaotic
conditIons, through interpreters, subject to
transcription errors, and heavily redacted for national security
purposes.
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Latif cites are typical
VVJLVU.J.1.3
the rule he proposes
ect to the he-saidlshe-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 30. 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 (2004).
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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,
yet it left unaddressed the content of the governing law, id. at
798. 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. 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 7. 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.
1 Specifically, the Supreme Court held that Guantanamo
detainees must have "the means to supplement the record on
review," Boumediene, 553 U.S. at 786, and that the court
conducting habeas proceedings must have authority (1) "to assess
the sufficiency of the Government's evidence against the detainee,"
id.; (2) "to admit and consider relevant exculpatory evidence," id.;
(3) "to make a determination in light of the relevant law and facts,"
id. at 787; and (4) "to formulate and issue appropriate orders for
relief, including, if necessary, an order directing the prisoner's
release," id.
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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 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:
Guantanamo 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_witte
s.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
afforded a presumption of authenticity," Dist. Ct. Docket No.
606, but the court rejected the government's request for a
presumption of accuracy "for the reasons stated by Judge
Kessler in Ahmed v. Obama, 613 F. Supp. 2d 51, 54-55
(D.D.C. 2009) and Judge Kollar-Kotelly in Al Mutairi v.
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United States, [644 F. Supp. 2d 78 (D.D.C. July 29, 2009)]."
Id. Those cases misunderstood the nature of the presumption.
In Ahmed and Al Mutairi, the district court assumed the
requested presumption would go to the truth of "the facts
contained in the Government's exhibits." Ahmed, 613 F.
Supp. 2d at 55. Since "the accuracy of much of the factual
material contained in the [Government's] exhibits [was] hotly
contested," id., quoted in Al Mutairi, 644 F. Supp. 2d at 84,
and the evidentiary dispute in Ahmed involved allegations that
the relevant statements were "obtained by torture," Ahmed,
613 F. Supp. 2d at 55, the court was rightly disinclined to
grant them a presumption of truth. But the presumption of
regularity does not require a court to accept the truth of a non-
government source's statement.
The confusion stems from the fact that 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.
Another reason the district court has denied the
Government's motions for a presumption of accuracy may be
that such a presumption is often unnecessary or irrelevant.
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The Government has frequently been able to prove its
detention authority without relying on any presumption that
its records are accurate. And in many cases, detainees do not
challenge the Government's recordkeeping. Instead, they
attack the sufficiency of the evidence, or they claim that the
Government's information is unreliable because it resulted
from harsh interrogation techniques, multiple levels of
hearsay, or unknown sources.
This case presents a different question because Latif s
sole is to the accuracy of the Government's
. When the detainee's challenge is
to process itself, should a presumption
of regularity apply to the official government document that
results ? We think the answer is yes.
To forbid a presumption of regularity in spite of
Boumediene's implicit invitation to innovate, 553 U.S. at 795,
would be particularly counterintuitive, since the field of
habeas corpus is already well accustomed to such burden-
shifting presumptions. In a state prisoner's federal habeas
proceeding, for example, "a determination of a factual issue
made by a State court shall be presumed to be correct," and
"the applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing
evidence." 28 U.S.C. § 2254(e)(1); see AI-Bihani, 590 F.3d at
878. And after a state court conviction becomes final, it is
subject to a "presumption of regularity," such that "[i]f that
conviction is later used to enhance a [federal] criminal
sentence, the defendant generally may not challenge the
enhanced sentence through a petition under § 2254 on the
ground that the prior conviction was unconstitutionally
obtained." Lackawanna Cty. Dist. Att Y v. Coss, 532 U.S. 394,
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403-04 (2001); see also Parke v. Raley, 506 U.S. 20, 30
(1992) (same for enhancement of a state court sentence).2
Just as principles of vertical comity and federalism
justify presumptions in favor of state court judgments in
ordinary criminal habeas proceedings, see Sumner v. Mata,
449 U.S. 539, 547 (1981), the horizontal separation of powers
justifies a presumption in favor of official Executive branch
records in Guantanamo habeas proceedings. The district court
is uniquely qualified to determine the credibility of hearsay,
and the presumption of regularity does not detract from that
role. But courts have no special expertise in evaluating the
nature and reliability of the Executive branch's wartime
records. For that, it is appropriate to defer to Executive branch
expertise. See Boumediene, 553 U.S. at 796-97 ("In
2 Even the particular presumption at issue in this case-the
presumption that an official government record was accurately
produced-applies in ordinary criminal habeas cases. See Hobbs v.
Blackburn, 752 F.2d 1079, 1081 (5th Cir. 1985) ("Official records,
such as this signed [state court guilty plea], are entitled to a
presumption of regularity and are accorded great evidentiary
weight" in a federal habeas proceeding.); see also Walker v.
Maggio, 738 F.2d 714, 717 (5th Cir. 1984) ("minute entry of the
[state] court" is entitled to a "presumption of regularity");
Thompson v. Estelle, 642 F.2d 996, 998 (5th Cir. 1981) ("The
district court could properly rely on the regularity of the state
court's documents in preference to Thompson's own self-serving
testimony."); Webster v. Estelle, 505 F.2d 926, 929-30 (5th Cir.
1974) (indictment and docket sheet are entitled to presumption of
regularity). The same presumption applies to official government
records in a probation revocation proceeding, a circumstance like
habeas in which liberty is on the line. See United States v. Thomas,
934 F.2d 840, 846 (7th Cir. 1991) (probation officer's report);
United States v. Verbeke, 853 F.2d 537, 539 (7th Cir. 1988)
(treatment center's report); United States v. Callum, 677 F.2d 1024,
1026 (4th Cir. 1982) (same).
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considering both the procedural and substantive standards
used to impose detention to prevent acts of terrorism, proper
deference must be accorded to the political branches."). Both
the Constitution and cOmn1on sense support judicial modesty
when assessing the Executive's authority to detain prisoners
during wartime, for it is an area in which the jUdiciary has the
least competence and the smallest constitutional footprint.
Our dissenting colleague concludes the presumption of
regularity should not extend to official intelligence reports
because he imagines the presumption of regularity is just a
shortcut for crediting the work product of official processes
we know to be "transparent, accessible, and often familiar,"
Dissenting Op. at 3, and because he thinks we know relatively
little about how intelligence reports are created, id. at 4-5.
Both premises are false. Courts regularly apply the
presumption to government actions and documents that result
from processes that are anything but "transparent,"
"accessible," and "familiar." The presumption of regularity is
founded on inter-branch and inter-governmental comity, not
our own judicial expertise with the relevant government
conduct. In Riggs National, we presumed a foreign
government entity's receipt to be reliable without pretending
it was produced by a "familiar" or "transparent" process. Id.
at 3; see 295 F.3d at 20-22. Likewise, federal courts need no
expertise concerning the procedures of state courts, probation
offices, and drug treatment centers to afford their official
records a presumPti.on of regularity. See cases cite~
note 2. Thanks to the explanatory declarations _
_ which we discuss below, see infra at 21-22, we
~r more about the personnel, process, and standards
involved in producing intelligence records like the Report
than we do about the foreign and state governmental organs
whose records we also presume to be reliable, and we have no
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reason to suspect such documents are fundamentally
unreliable. 3
Rather than cast doubt on the viability of the presumption
of regularity in this context, our only pertinent post-
Boumediene discussion of the presumption strongly suggests
its continuing viability. In Al-Bihani, the detainee complained
that the district court had "erred by .,. presuming the
accuracy of the government's evidence." 590 F.3d at 875.
Without isolating the components of AI-Bihani's multifaceted
procedural argument-it included attacks on the standard of
review, the denial of a full-blown evidentiary hearing, alleged
burden-shifting, and the district court's discovery orders-we
said that his "argument clearly demonstrate [d] [his own]
error" and that Boumediene's holding had placed it on "shaky
ground." Id. at 876. Without explicitly confirming that the
district court had applied a presumption in favor of the
Government's evidence in that case, we noted that its case
management order "reserved the district court's discretion,
when appropriate, to adopt a rebuttable presumption in favor
of the accuracy of the government's evidence." Id. at 869-70.
We implied that the district court had in fact exercised this
discretion when we quoted the order with approval in our
hearsay analysis. Id. at 880 ("[T]he Court will determine, as
to any evidence introduced by the Government, whether a
presumption of accuracy and/or authenticity should be
accorded."). Consistent with this order, we noted, the district
no Its
....u~."' ...... E:!'"'....'"''"'
would be used in litigation. Instead, the Government
was seeking accurate, actionable intelligence to protect the country
from imminent attack. The Government had the strongest incentive
to produce accurate reports and no incentive to frame innocent
bystanders as Taliban operatives.
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court had judged the "admissions presented by the
government to be 'credible and consistent. '" Id. Indeed, the
district court relied on "certain statements by the petitioner
that the Court finds credible and certain classified documents"
without entertaining the possibility that the detainee's
statements had been mis-reported. Al Bihani v. Obama, 594 F.
Supp. 2d 35, 38-39 (D.D.C. 2009). We did not distinguish the
presumption of regularity from the admission of hearsay
evidence generally, but we noted that "had the district court
imposed stringent standards of evidence in the first instance,
the government may well have been obligated to go beyond
AI-Bihani's interrogation records and into the battlefield to
present a case that met its burden," Al Bihani, 590 F.3d at
877-78, and we "disposed of' "[t]he rest of AI-Bihani's
procedural claims ... without extended discussion," id. at
881. Although AI-Bihani does not clearly hold the district
court may accord government evidence a presumption of
regularity, that case is certainly consistent with today's
holding.
Although it was decided under the pre-Boumediene
Detainee Treatment Act of 2005 (DTA), our opinion in
Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008), also lends
support to the continuing viability of such a presumption. In
Parhat, we noted that the DTA incorporated by reference a
"rebuttable presumption that the Government Evidence is
genuine and accurate." Id. at 847 (quotation marks omitted)
(quoting Implementation of Combatant Status Review
Tribunal Procedures at E-l § G(11) (July 29, 2004)). We
reversed the Tribunal's decision because the Government's
evidence, despite the presumption in its favor, could not
"sustain the determination that Parhat is an enemy
combatant." 532 F.3d at 847. The intelligence consisted of
anonymous hearsay in the form of unsupported "bottom-line
assertions," so it was impossible for us to "assess the
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reliability of the assertions in the documents." Id. We
explained that "[i]f a Tribunal cannot assess the reliability of
the government's evidence, then the 'rebuttable' presumption
becomes effectively irrebuttable." Id. Although we found the
presumption rebutted in Parhat, we cast no doubt on the
propriety of such a presumption in the Guantanamo context.
Parhat still "sets the guideposts for our inquiry into the
reliability of the [Government's] evidence in a detainee's
habeas case." Bensayah v. Obama, 610 F.3d 718, 725 (D.C.
Cir. 2010) (quoting Barhoumi v. Obama, 609 F.3d 416, 428
(D.C. Cir. 2010)). And neither the Supreme Court nor our
court has ever rejected the presumption we analyzed in that
case.
Our dissenting colleague points to four more recent cases
to defend his view that intelligence documents like the Report
in this case are undeserving of a presumption of regularity.
Dissenting Op. at 10-12 (citing Barhoumi, 609 F.3d 416,
Bensayah, 610 F.3d 718, Al Alwi v. Obama, - F.3d - , No.
09-5125, 2011 U.S. App. LEXIS 14991 (D.C. Cir. July 22,
2011), and Khan v. Obama, - F.3d - , No. 10-5306, 2011
U.S. App. LEXIS 18471 (D.C. Cir. Sept. 6, 2011)). But we
had no occasion to apply such a presumption in any of these
cases, and none of them limits our discretion to do so under
Boumediene.
In Barhoumi, we considered a Government intelligence
report containing a translation of a diary. Although we
affirmed the district court's favorable treatment of the
Government's evidence, 609 F.3d at 428-31, we did not
apply a presumption of regularity. The reason for that
omission is simple. The district court had credited the
Government's evidence without applying a presumption of
regularity, and we were reviewing for clear error. See Brief of
Respondents-Appellees at 52, Barhoumi, 609 F.3d 416 (No.
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09-5383), ECF No. 1236093 (observing that "the district
court did not presume the accuracy or authenticity of the
government's evidence"). True, the Government's brief
interpreted the criminal cases on which Barhourni relied as
"acknowledg[ing] that, absent 'unusual circumstances,' a
translation is assumed to be accurate" in "criminal
proceedings governed by the Confrontation Clause and the
Federal Rules of Evidence." Id. at 45-46 (quoting United
States v. Martinez Gaytan, 213 F.3d 890, 892 (5th Cir. 2000)
and United States v. Vidacek, 553 F.3d 344, 352 (4th Cir.
2009)). But the Government did not ask us to apply any such
presumption to its evidence. Indeed, the Government noted
those criminal cases were "clearly distinguishable." Id. at 45.
We agreed. The cases Barhoumi relied on related to the
question of admissibility, which we observed was irrelevant
in the Guantanamo habeas context since all hearsay is
admissible. We rejected the detainee's contention that
deficiencies in the translation rendered it unreliable. See
Barhoumi, 609 F.3d at 431. We certainly did not deny the
possibility that a presumption of accuracy might apply in the
habeas context-we simply were not confronted with that
question. Our opinion in Barhoumi therefore cannot bind us
to the dissent's view that the constitutional right to habeas
precludes any presumption in favor of an official intelligence
report. "Constitutional rights are not defined by inferences
from opinions which did not address the question at issue."
Texas v. Cobb, 532 U.S. 162, 169 (2001); see also Lopez v.
Monterey Cty, 525 U.S. 266, 281 (1999) ("[T]his court is not
bound by its prior assumptions."); cf Ariz. Christian Sch.
Tuition Org. v. Winn, 131 S. Ct. 1436, 1448-49 (2011)
("When a potential jurisdictional defect is neither noted nor
discussed in a federal decision, the decision does not stand for
the proposition that no defect existed. The Court would risk
error if it relied on assumptions that have gone unstated and
unexamined." (citations omitted)); Brecht v. Abrahamson,
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507 U.S. 619, 631 (1993) ("[S]ince we have never squarely
addressed the issue, and have at most assumed the
applicability of the Chapman [' harmless beyond a reasonable
doubt'] standard on habeas, we are free to address the issue
on the merits. ").
For the same reason, we cannot extract from Bensayah,
Al Alwi, or Khan the dissent's proposed bar on evidentiary
presumptions for intelligence reports. As in Barhoumi, the
Government did not request a presumption of regularity in
any of these appeals. See Brief of Respondents-Appellees at
38-39, Bensayah, 610 F.3d 718 (No. 08-5537); Brief of
Respondents-Appellees at 34--38, Al Alwi, - F.3d - (No.
09-5125); Brief of Respondents-Appellees at 45-58, Khan, -
F.3d - (No. 10-5306). Thus, the court appropriately
refrained from addressing the viability of such a presumption
in each of those cases. See Rumber v. District of Columbia,
595 F.3d 1298, 1302 (D.C. Cir. 2010) ("[W]e follow our
usual practice of declining to reverse the district court based
on arguments that the appellant did not raise."); United States
v. Vizcaino, 202 F.3d 345, 348 (D.C. Cir. 2000) ("Because
[the defendant] failed to preserve the argument for appeal, we
review ... at most for plain error." (emphasis added)). Absent
relevant arguments, none of these cases can be read to
foreclose a presumption of regUlarity for government
documents in general or intelligence reports in particular.
Apart from its precedential argument, the dissent frets
that "in practice" the presumption of regularity will compel
courts to rubber-stamp government detentions because it
"suggest[ s] that whatever the government says must be
treated as true." Dissenting Op. at 19 (quoting Parhat, 532
F.3d at 849). That fear is unfounded. Again, the presumption
of regularity, if not rebutted, only permits a court to conclude
that the statements in a government record were actually
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made; it says nothing about whether those statements are true.
And while the presumption applies to government records, it
does not apply only to the government's evidence. If a
detainee introduces a govemlnent record to support his side of
the story-as has been done in the past, see, e.g., Awad, No.
09-5351, slip op. at 8 ("In support of his petition, Awad
introduced into evidence ... additional statements he made to
his interrogators")-he can benefit from the presumption as
well. Finally, the presumption likely will never playa 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.
A body of judge-made law is not born fully formed, like
Athena from the head of Zeus. It grows gradually, developing
little by little in response to the facts and circumstances of
each new case. Until now, we have not had to decide whether
the common-law presumption of regularity applies in
Guantanamo habeas proceedings. This case finally forces the
issue because Latif challenges only the reliability of the
Report, and because the Government persists in its request for
a presumption of regularity on appeal. 4 We hold that in
4 The Government's argument for a presumption of regularity
is unambiguous. Observing that "[i]t is well established that there is
a strong 'presumption of regularity' for actions of government
officials taken in the course of their official duties," Appellants' Br.
30 (quoting United States v. Chemical Found., Inc., 272 U.S. 1, 14-
15 the Government that the expert descriptions I
"should have been
CotlSIdlere:d III presumption that government
officials are properly carrying out their duties." Id. Developing this
argument by analogy, the Government that "the factors
supporting [the] accuracy" of
"even stronger than in the immIgratIOn CODltext"
agent "cannot be presumed to be ... other an accurate
recorder" of the alien's statement. Id. at 30-31 (quoting Espinoza v.
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Guantanamo habeas proceedings a rebuttable presumption of
regularity applies to official government records, including
intelligence reports like the one at issue here.
B
Because the Report is entitled to a presumption of
regularity, and because the Report, if reliable, proves the
lawfulness of Latif s detention, we can only uphold the
district court's grant of habeas if Latif has rebutted the
Government's evidence with more " evidence of his
own. 5 Viewed together, both
_ and the other
~ to meet this burden.
INS, 45 F.3d 308, 311 (9th Cir. 1995)). The dissent's claim that our
holding goes "well beyond what the government actually argues in
its briefs" is unfounded. Dissenting Op. at 9.
5 We need not decide precisely how much more the detainee
must show to overcome the presumption of regularity. Depending
on the circumstances, courts have required litigants to meet
standards ranging from "clear and specific evidence," Riggs Nat 'I,
295 F.3d at 21 (tax), to "clear and convincing evidence," Riggins v.
Norris, 238 F.3d 954, 955 (8th Cir. 2001) (habeas); see also United
States v. Armstrong, 517 U.S. 456, 464 (1996) ("clear evidence")
(selective prosecution); Dep't of Labor v. Triplett, 494 U.S. 715,
723 (1990) ("[A ]necdotal evidence will not overcome the
presumption of regularity") (effective assistance of counsel); cf
Sussman, 494 F.3d at 1117 (noting a "less stringent standard"
applies in at least some FOIA cases (quoting Nat'l Archives &
Records Admin. v. Favish, 541 U.S. 157, 174 (2004))). Even if we
assume a detainee may overcome the presumption by a mere
preponderance of the evidence, Latif cannot meet that standard.
SECRET 21 SECRET
1
SECRET 22 SECRET
we
an
hn'iliTP"'i3r, report involves just one level
hearsay-that of the interrogator. 590 F.3d at 879. Like the diary
translated in Barhoumi and unlike the anonymous hearsay in
Parhat, are "the underlying
reporting on s assertions are founded. "
Barhoumi 609 F.3d at 428. The act of translation "does not affect
II!NM status." Al-Bihani, 590 F.3d at 879; see
Bar oumi, 609 .3 at 430-31. And, as Parhat and Al-Bihani
demonstrate, courts are capable of determining whether official
government records that contain hearsay merit the presumption of
regularity.
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SECRET 24 SECRET
SECRET 25 SECRET
SECRET 26 SECRET
SECRET 27 SECRET
2
SECRET 28 SECRET
SECRET 29 SECRET
SECRET 30 SECRET
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III
The district court issued its decision in this case a week
after we published our opinion in AI-Adahi v. Obama, 613
F.3d 1102 (D.C. Cir. 2010). We observed that "[o]ne of the
oddest things" about that case was that "despite an extensive
record and numerous factual disputes, the district court never
made any findings about whether AI-Adahi was generally a
credible witness or whether his particular explanations for his
actions were worthy of belief." Id. at 1110. The district
court's analysis in this case suffers from the same omission.
Because the court relied in part on Latif s declaration in
discrediting the Report, see Latif, 2010 U.S. Dist. LEXIS
83596, slip op. at 26 ("[T]he Court cannot credit [the Report]
because ... Latif has presented a plausible alternative
story."), the district court was obligated to consider his
credibility. Only a credible story could overcome the
presumption of regularity to which the Report was entitled.
The court's failure to make a credibility finding is especially
puzzling where the inCUlpatory and eXCUlpatory versions of
the detainee's story ov so that the factfinder is forced to
.l.lJ5.le the detainee's
I.UU..... story _
do~
t o ' s credibility when she
professed that the family and friends gathered around her bed
had been with her in Oz. See THE WIZARD OF Oz (MGM
1939) ("Of course we believe you, Dorothy."). The district
court, by contrast, mustered only a guarded finding of
SECRET 32 SECRET
plausibility. See Latif, 2010 U.S. Dist. LEXIS 83596, slip op.
at 26.
La~if makes two main arguments in defense of the district
court's decision to proceed without an explicit finding of
credibility. First, he argues that the court did in fact believe
his declaration even though its opinion did not use those
words. Second, he argues no credibility determination is
necessary because the district court relied on the inherent
weakness of the Government's evidence to discredit it.
Neither argument has merit.
A
The closest the district court's opinion comes to making a
credibility determination is in its statements that Latif's story
was "plausible" and "not incredible." Id., slip op. at 26-27. A
story may be "plausible" or "not incredible" and yet be very
unlikely. Cf Uthman v. Obama, 637 F.3d 400,406 (D.C. Cir.
2011) ("Uthman's account ... involves many coincidences
that are perhaps possible, but not likely."). A judgment about
credibility, by contrast, measures the truthfulness of the
speaker or the likelihood. that what he says is true. See
RICHARD HOOKER, THE LAWS OF ECCLESIASTICAL POLITY bk.
II, ch. 4, at 151-52 (George Edelen ed., Harvard Univ. Press
1977) (1594) ("[T]hings are made credible, eyther by the
knowne condition and qualitie of the utterer, or by the
manifest likelihood of truth which they have in themselves.").
Thus, neither of the district court's statements is equivalent to
a finding that Latif's declaration is more likely true than false.
On this, we are all agreed. See Dissenting Op. at 30.
By definition, a "plausible" statement is one "seeming
reasonable, probable, or truthful"; it may in reality have only
"a false appearance of reason or veracity." OXFORD ENGLISH
SECRET 33 SECRET
DICTIONARY ONLINE, http://www.oed.comJview/Entry/
145466 (definition 4.a) (emphasis added) (last visited June
16, 2011). A plausible explanation does not necessarily
compel credence. See Zamanov v. Holder, No. 08-72340, -
F.3d - , 2011 U.S. App. LEXIS 8886, at *12 (9th Cir. Apr.
29, 2011) ("[Petitioner's] explanation ... is plausible.
However, the record does not compel the finding that the
[Immigration Judge's] unwillingness to believe this
explanation ... was erroneous."). It is when a detainee tells a
plausible story that an evaluation of his credibility is most
needed. There may be several plausible explanations for
Latifs itinerary; it is the district court's job to decide whether
the Government's explanation is more likely than not. See Al-
Adahi, 613 F .3d at 1110 ("Valid empirical proof requires not
merely the establishment of possibility, but an estimate of
probability." (quoting DAVID HACKETT FISCHER, HISTORIANS'
FALLACIES: TOWARD A LOGIC OF HISTORICAL THOUGHT 53
(1970))).
Likewise, to say Latif s tale is "not incredible" is not to
imply its teller ought to be believed. At best, the district
court's statement means a reasonable finder of fact could
believe Latifs story, not that he has actually done so. Cf
United States v. Wooden, 420 F.2d 251, 253 (D.C. Cir. 1969)
("The appellant's story was not incredible; indeed, the jury
seems to have accepted it, at least in part.... "). Different
factfinders may come to different conclusions about whether
to credit evidence that is "not incredible" as a matter of law.
Other statements in the district court's opinion confirm
that it did not reach a decision on Latifs credibility. For
example, the court rejected the Government's "contention that
Latif must be lying," Latif, 2010 U.S. Dist. LEXIS 83596, slip
op. at 27 (emphasis added), while assiduously avoiding any
determination that Latif was not lying. The court speculated
SECRET 34 SECRET
more than once that the inconsistencies in his statements
"may be the result of a misstatement or a mistranslation,"
without ever making a finding to that effect. Id., slip op. at 27
(emphasis added); id. ("The smaller inconsistencies ... may
be no more than misstatements or mistranslations." (emphasis
added)). Likewise, the court found that "Latif did have an
injury ... for which he might therefore have sought
treatment." Id., slip op. at 28 (emphasis added); see also id.,
slip op. at 6 n.4 (citing Latif s "alternative explanation for not
having his passport at the time he was seized," without
deciding whether that explanation is more likely than the
Government's incriminating explanation). The district court
provided no indication that it actually believed Latif s story
and instead noted the story's "inconsistencies and unanswered
questions." Id., slip op. at 27.
B
The district court's decision gives us no reason to believe
it would have reached the same result had it not relied on
Latifs "plausible" version of the relevant events. The court
said it could not "credit"
partly "because ... Latif
story to explain his travel." Id., slip op. at 26. Instead of
advancing from plausibility to a judgment about Latif s
the court ted its
re on
basis for rejecting_
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SECRET 36 SECRET
story "plausible," not credible, the court merely established
the possibility, not the probability, that Latifs story was true.
And without a "comparative judgment about the evidence,"
there is no finding of fact for this court to review. AI-Adahi,
613 F.3d at 1110.
By forgoing a determination of credibility for one of
plausibility, the district court replaced the necessary factual
finding with a legal conclusion that some other reasonable
factfinder might believe Latif s story. In other words, the
district court took on the role of a reviewing court, assuming
in effect that Latif already had been found credible and then
applying a deferential standard of review to that imaginary
finding. Cf A wad, 608 F.3d at 7 ("[I]f the district court's
account of the evidence is plausible in light of the record
viewed in its entirety, the court of appeals may not reverse
it."). We cannot allow the district court to bypass its
factfinding role in favor of an appellate standard of review.
Cf Anderson v. United States, 632 F.3d 1264, 1269-70 (D.C.
Cir. 2011) (noting that the district court may not apply the
appellate court's standard of review in crafting its own
sentence). And since "de novo factfinding is inconsistent with
[an appellate court's] proper role," United States v.
Brockenborrugh, 575 F.3d 726, 746 (D.C. Cir. 2009), we are
at an impasse.
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In sum, the district court's failure to resolve
the key question of [the lead witness's]
credibility makes it impossible for us to
perform our appellate function. "The purpose
of an appeal is to review the judgment of the
district court, a function we cannot properly
perform when we are left to guess at what it is
we are reviewing. " We therefore vacate the
district court's order and remand for further
proceedings consistent with this opinion.
United States v. Holmes, 387 F.3d 903, 907-08 (D.C. Cir.
2004) (quoting United States v. Williams, 951 F.2d 1287,
1290 (D.C. Cir. 1991)).
C
On remand, the district court may consider any relevant,
admissible evidence to aid its evaluation of Latirs credibility.
If Latif again declines an opportunity to testify, that is another
fact bearing on his credibility. Although the district court's
factual findings may be supported by documentary evidence
no less than by oral testimony, see Barhoumi, 609 F.3d at
423-24, a civil party's decision not to testify may support an
adverse inference about his credibility, see Mitchell v. United
States, 526 U.S. 314, 328 (1999) ("The Fifth Amendment
does not forbid adverse inferences against parties to civil
actions when they refuse to testify in response to probative
evidence against them."). Latif argues "it would make no
sense to require an adverse inference in habeas cases in which
the petitioner declines to testify while prohibiting such
inferences in criminal cases." Appellee's Br. 52. This neglects
the crucial point that the rule for criminal cases is based on
the Fifth Amendment privilege against self-incrimination. See
Mitchell, 526 U.S. at 316. That privilege has no application
outside the criminal context, and a Guantanamo habeas
SECRET 38 SECRET
petitioner is not entitled to the same constitutional safeguards
as a criminal defendant. Cf A l-Bihani, 590 F .3d at 879
("[T]he Confrontation Clause applies only in criminal
prosecutions and is not directly relevant to the habeas
setting."). Especially where a detainee's own self-serving
statements comprise the only evidence against the
Government's case, his refusal to testify is relevant to the
district court's credibility determination. 12
IV
"[A] court considering a Guantanamo detainee's habeas
petition must view the evidence collectively rather than in
isolation." Salahi v. Obama, 625 F.3d 745, 753 (D.C. Cir.
2010). A habeas court's failure to do so is a legal error that
we review de novo, separate and apart from the question of
whether the resulting findings of fact are clearly erroneous in
themselves. See Al-Adahi, 613 F.3d at 1111 ("[T]he district
court clearly erred in its treatment of the evidence and in its
view of the law. The court's conclusion was simply not a
permissible view of the evidence. And it reached this
conclusion through a series of legal errors."). Under Al-Adahi,
a detainee is not entitled to habeas just because no single
piece of evidence is sufficient by itself to justify his detention.
613 F.3d at 1105-06. It follows that a habeas court may not
ignore relevant evidence, for a court cannot view collectively
evidence that it has not even considered.
12 On appeal, Latif retorts that the Government did not put on
witnesses either. 's Br. 51. This misses the .
contrast, every to
purpose of his visit. His failure to testify and subject
himself to cross examination therefore undermines his credibility.
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Perhaps because it had already denied the Government's
key evidence a presumption of regularity, the district court
committed both errors, explaining away some of the
individual contradictions and coincidences in Latif's story
one by one, as if each stood alone, and ignoring other
probative details altogether. In AI-Adahi, we reversed the
district court's grant of habeas because the court had failed to
consider all the evidence in context. Viewing the evidence as
a whole, we concluded the Government had proven the
detainee "was more likely than not part of al-Qaida." Id. at
1111. Although we do not reach an ultimate conclusion on the
merits in this case, the district court's similar treatment of the
evidence in this case provides an alternative basis for remand.
The district court's unduly atomized approach is
illustrated by its isolated treatment (or failure to consider)
several potentially incriminating inferences that arise from
evidence Latif himself offers in support of his petition-
namely, ~ similarities between Latif's exculpatory
story and _ (b) the route Latif admits traveling, and
(c) contradICtIons in Latif's exculpatory statements. In
",,,.n"T,·r, ... the district court . declined to consider
court
1 " . . " T••r·1
of weighing this evidence in
A
story so hard to swallow is
t its nA~...aC''''''A,...,rI,a...,,'a
SECRET 40 SECRET
SECRET 41 SECRET
B
Nor did the district consider that Latif's
e to a
distinctive path used by al Qaeda members can be probative
evidence that the traveler was part of al Qaeda." Uthman, 637
F.3d at 405 (citing Al Odah, 611 F.3dat 16). At Guantanamo,
more than a year after his capture, Latif told his interrogators
he flew from Sana' a, Yemen to Karachi, Pakistan in early
2001 with a plane ticket Ibrahim gave him. From there he
took a bus to Quetta, Pakistan and a taxi to Kandahar,
Afghanistan as Ibrahim had instructed. Then Ibrahim took
him by taxi to Kabul, where Latif said he spent five months in
the religious study center. 14 This route has been well traveled
by al-Qaida and Taliban recruits and by our precedent. See
Uthman, 637 F.3d at 405 (noting that Uthman's route from
Sana' a to Karachi by plane, from Karachi to Quetta by bus,
14 Although Latifs more recent declaration in the district court
leaves out some of these details, he does not deny taking this route.
Indeed, Latif cites the consistency of his Guantanamo
interrogations as evidence that his current story is true. Appellee's
Br. 18-22. Latifs recent declaration confirms he took a bus to
Quetta and a taxi from Quetta to Afghanistan, and then stayed in
Kabul before returning to Pakistan.
SECRET 42 SECRET
from Quetta to a Taliban office by taxi, and from there to
Kandahar "is similar to the paths of admitted al Qaeda
members"); Al Odah, 611 F.3d at 10, 12 (noting that a similar
"route used by al Odah was a common travel route for those
going to Afghanistan to join the Taliban"). The record in this
case is replete with interrogation summaries of other Yemeni
detainees who followed the same route to Afghanistan.
Instead of focusing on Latif s route, the district court
observed that "[n]o other detainee told interrogators that he
fled from Afghanistan to Pakistan, from Tora Bora or any
other location, with Latif." Latif, 2010 U.S. Dist. LEXIS
83596, slip op. at 26. That is true. But the court overlooked
the implications of Latif s own subsequent admissions about
the route he traveled. IS This is relevant evidence, and it
should have factored into the district court's decision. The
court's failure even to consider it is a legal error that compels
remand.
c
IS a
evidence we called for in AI-Adahi. But as
with the other evidence, the district court examined some
15 The district court did not, as the dissent suggests, "treat[]
[this] evidence as more akin to traveling along 1-95 than a lonely
country road." Dissenting Gp. at 35. The court did not consider it at
all.
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contradictions in isolation from the rest of the evidence and
overlooked others altogether.
The court gestured obliquely to what it characterized as
"smaller inconsistencies" that it concluded "may be no more
than misstatements or mistranslations." Id. Apparently, the
court found it unnecessary to get to the bottom of these
contradictions because "even if some details of Latif's story
have changed over time, for whatever its
fundamentals have remained the same." Id.
statements,
court's reasoning neglects "the well-settled principle that
false exculpatory statements are evidence-often strong
evidence-of guilt." AI-Adahi, 613 F.3d at 1107. Thus, even
if a given inconsistency in a detainee's story does not go to
the central question of his involvement with the Taliban or al-
Qaida, it may be relevant nonetheless to the court's evaluation
of his credibility, which in turn bears .on the reliability of the
Government's evidence. Cf United States v. Philatelic
Leasing, Ltd., 601 F. Supp. 1554, 1565 (S.D.N.Y. 1985)
(citing the principle, "which Wigmore has described as 'one
of the simplest in human experience,'" that "when a litigating
party resorts to 'falsehoods or other fraud' in trying to
establish a position, the court may conclude the position to be
without merit and that the relevant facts are contrary to those
asserted by the party") (quoting 2 John Henry Wigmore,
Evidence § 278, at 133 (1979)).
court
o In on (in
which he claimed to be too disabled to fight) Latif said he
SECRET 44 SECRET
"spent three months at the Islamic Jordanian Hospital in
Amman, Jordan," Petitioner's Decl., ~ 3, but his own medical
records reveal that he was released just five days after
admission. The court· made no explicit finding about the
source of this inconsistency, and it failed to mention that Latif
himself testified before the Combatant Status Review
Tribunal that he was "treated . . . for five days," ISN 156
CSRT Tr. at 8, a fact that is surely relevant to the credibility
of Latif s recent declaration.
The court failed even to mention other incongruities
among the stories Latif has told his interrogators. Latif has
said that he stayed with a doctor in Kabul, but also that he
stayed in a religious study center there; that Latif was arrested
at the Pakistani border fleeing Afghanistan, but also that he
was arrested at a hospital in Pakistan; that he paid for his
medical treatment, but also that he could not pay; that
Ibrahim's charitable organization is called Jamiat an-Nur, but
also that it is called Gameiat al Hekma or, alternatively, Jam-
SECRET 45 SECRET
eiah Islam. Even if some of the inconsistencies in Latif's
story "may be," as the district court suggested about others,
"no more than misstatements or mistranslations," Latif, 2010
U.S. Dist. LEXIS 83596, slip op. at 27, viewed together with
the rest of the evidence they undermine the credibility of
Latif's declaration. "We do not say that any of these
particular pieces of evidence are conclusive, but we do say
that they add to the weight of the government's case against
[the detainee] and that the district court clearly erred in
tossing them aside." AI-Adahi, 613 F.3d at 1110.
D
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16 We do not ''find[J'' that this evidence "do[ es] in fact
implicate" Latif, as the dissent accuses us of doing. Dissenting Op.
at 2. Rather, we hold the district court's findings suspect in that the
court "failed to take into account" related evidence when it made
those findings. AI-Adahi, 613 F.3d at 1108.
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E
In a recent case, we held "the location and date of [the
detainee's] capture, together with the company he was
keeping, strongly suggest that he was part of al Qaeda."
Uthman, 637 F.3d at 405. The Yemeni detainee in that case
was captured in December 2001 with at least five other
Yemeni men, two of whom were confessed al-Qaida
members, at the Afghan-Pakistani border near Tora Bora, a
cave complex in Eastern Afghanistan that was, at that time,
the site of a battle between al-Qaida and the United States. Id.
Analogous details in the circumstances of Latif s capture
should have been weighed in combination with the rest of the
Government's incriminating evidence.
Latif admits that he was captured in "late 2001" after
- being led across the Afghan border into Pakistan, Appellee's
Br. 7, and he confmned to his Guantanamo interrogators that
an Afghan guide led him across the border. The record
contains no direct evidence about Latif s route from Kabul to
the Pakistani border.
,,""'U'~.I."""'~ court con\.l.lU~..J.\.IU
tImIng from Kabul is not sufficient to
create an inference that he was involved in fighting." Id., slip
op. at 27 (emphasis added). This is exactly the formulation we
criticized in AI-Adahi. In that case the district court concluded
"AI-Adahi's attendance at an al-Qaida training camp 'is not
sufficient to carry the Government's burden of showing that
he was a part' of al-Qaida." 613 F.3d at 1105 (emphasis
added). We cited that statement as an example of the court's
SECRET 48 SECRET
having "wrongly 'required each piece of the government's
evidence to bear weight without regard to all (or indeed any)
other evidence in the case." Id. at 1105-06. The district court
commits exactly the same "fundamental mistake" in this case
by considering the time and place of Latifs capture in
isolation from the rest of the evidence. Id. at 1106. The
question to ask is not whether the circumstances of Latif s
capture are sufficient by themselves to prove he was part of
the Taliban, but whether, in combination with the rest of the
evidence, they make that conclusion more likely than not.
SECRET 49 SECRET
The dissent admits the circumstances of Latif's flight
from Afghanistan are helpful to the Government's case, but
contends they may not be very helpful since, for all we know,
his route was frequented by non-combatants too. Dissenting
Op. at 33-35. This bold speculation is beyond our purview as
an appellate court, and the district court did not suggest it had
so much as considered the possibility. (Indeed, the record
contains no evidence to support the dissent's theory.) At this
juncture, all we can say is that the location and timing of
Latif's exodus is relevant evidence, and the district court
erred by considering his route in isolation and ignoring the
similarly situated detainees' altogether.
F
To summarize, in addition to viewing Latif's own
statements in isolation, the district court ignored the probative
value of (1) Latif's familiar, four-leg route to Kabul;
(2) Latif's CSRT testimony that he was hospitalized for just
five instead of three months as he now claims'
a court's
opinion that any of these facts infonned its conclusion about
the Government's evidence. In light of our application of the
presumption of regularity, there can be no question on remand
SECRET 50 SECRET
but that all of this evidence must be considered-and
considered as a whole.
The dissent makes much of the fact that, contrary to the
usual practice, we do not assume the court considered all the
evidence it failed to mention. Dissenting Op. at 43-44. If that
is true, the result flows from the unusual posture of this case.
Even in the typical he-saidlshe-said case-in which two people
provide conflicting statements-the court must conduct a close
and precise balancing of the evidence to reach a valid result.
In detainee cases the difficulties are heightened because it is a
he-saidlhe-said case-the same person provides both the
incriminating and exculpatory statements. Thus the Al Adahi
formulation becomes critical.
The district court's failure to address certain relevant
evidence leaves us with no confidence in its conclusions
about the evidence it did consider. For example, the district
court implicitly rejected evidence that Latifs purported
benefactor, Ibrahim AI-Alawi, is actually Ibrahim Ba'alawi,
known as Abu Khalud, an al-Qaida facilitator. Other
detainees have described Ibrahim Ba'alawi in much the same
Ba' alawi arranged their travel along the same route Latif took
to Afghanistan, lived in Kandahar as Latif s benefactor did,
and arranged for their attendance at military training camps.
Although noting the similarities between Ibrahim Ba' alawi
and the Ibrahim AI-Alawi who appears in Latif's current
story _ the district court implicitly concluded
they ~ men on the basis of exculpatory
statements Latif made _ Latif makes
much of the fact tha~t name from
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Ba'alawi, not just a variant spelling, and at least seven
detainees reported their recruiter's name as Ba'alawi or some
variant thereof. But such a minor phonetic mistake could
easily result from a translation or transcription error. 18 It does
not negate altogether the probative value of this link between
Latif s current and a known recruiter
was a person
without ever finding that to be so.
Even if the district court had made a clear finding in
Latifs favor about Ibrahim's identity, we could not affirm it
on this record. Since the probability of one asserted fact is
conditioned upon the likelihood that related facts are true, we
cannot uphold the district court's evaluation of a particular
piece of evidence that is susceptible to more than one
interpretation when the court has ignored related evidence.
On remand, the district court has an opportunity to
evaluate all the evidence as a whole. In the event of another
appeal following that evaluation, we would have to decide
whether, in light of all the evidence, we are left with "the
definite and firm conviction that a mistake has been
committed." Almerfedi, - F.3d -, 2011 U.S. App. LEXIS
18 Indeed, as the district court acknowledged, the recruiter is
identified as Alawi in another detainee's interrogation report. The
district court dismissed this evidence, observing that in another
case, the district court had discredited this detainee's statement
about an unrelated detail-the timing of another detainee's arrival
at a guesthouse-because it conflicted with other detainees'
statements. Latif, 2010 U.S. Dist. LEXIS 83596, at *26 n.10, slip
op. at 19 n.10 (citing Abdah v. Obama, 717 F. Supp. 2d 21, 35
(D.D.C.2010)).
SECRET 52 SECRET
11696, at *23. In its current posture, this case does not require
us to answer that difficult question. 19
v
Although the district court committed the same errors
here as in AI-Adahi, the evidence before us presents a closer
question than we faced in that case and our subsequent
reversals. Cf Almerfedi, - F.3d - , 2011 U.S. App. LEXIS
11696; Uthman, 637 F.3d at 400. And the Government s it
has discovered new evidence
_ that neither the rllC'TM'"'T
occaSlOn to consider.
As the dissenters warned and as the amount of ink spilled
in this single case attests, Boumediene's airy suppositions
have caused great difficulty for the Executive and the courts.
See 553 U.S. at 824-26 (Roberts, C.l, dissenting); id. at 827-
28 (Scalia, J., dissenting). Luckily, this is a shrinking category
of cases. The ranks of Guantanamo detainees will not be
replenished. Boumediene fundamentally altered the calculus
of war, guaranteeing that the benefit of intelligence that might
be gained-even from high-value detainees-is outweighed by
the systemic cost of defending detention decisions. Id. at 828
(Scalia, l, dissenting). While the court in Boumediene
19 Judge Henderson would reverse the district court's grant of
habeas corpus outright. In her view, "remand is unnecessary
because 'the record permits only one resolution of the factual
issue.'" Concurring Op. at 12 (quoting Pullman-Standard v. United
Steel Workers of Am., AFL-CIO, 456 U.S. 273, 292 (1982)).
Because of the legal errors we have both identified, I find it
unnecessary to decide that question. Remand is warranted not only
when "further fact-finding by the district court is necessary," but
also when it "would be helpful." Al Alwi, 2011 U.S. App. LEXIS
14991, at *9. This is such a case.
SECRET 53 SECRET
expressed sensitivity to such concerns, it did not find them
"dispositive." Id. at 769. Boumediene's logic is compelling:
take no prisoners. Point taken.
In light of the district court's expertise as a fact finder
and judge of credibility, I am reluctant to reach the merits
before the district court has had an opportunity to apply the
controlling precedent. But see Concurring Op. at 12
("[F]urther factfinding will be a waste of time and judicial
resources."). We therefore vacate and remand the district
court's grant of habeas for further proceedings. On remand
the district court must consider the evidence as a whole,
bearing in mind that even details insufficiently probative by
themselves may tip the balance of probability, that false
exculpatory statements may be evidence of guilt, and that in
the absence of other clear evidence a detainee's self-serving
account must be credible-not just plausible-to overcome
presumptively reliable government evidence.
So ordered.
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KAREN LECRAFT HENDERSON, Circuit Judge, concurring in the
judgment:
Although I agree with Judge Brown's analysis and therefore
concur in the judgment of remand, I write separately to respond
to the dissent and to explain that, in my view, the better course
would be to simply reverse the district court's grant of habeas
corpus relief to the detainee Adnan Farhan Abd Al Latif. The
dissent attacks Judge Brown's majority opinion on three
grounds. The first two grounds are related: the dissent claims
that there is no clear error in the district court's opinion,
Dissenting Op. at 2, 20-45 and that we have arrived at the
contrary conclusion-finding clear error-only by
"undertak[ ing] a wholesale revision ofthe district court's careful
fact findings," and "suggest[ ing] [our] own story," Dissenting
Op. at 2, 32; see id. at 32-39. As discussed below, however, the
dissent misunderstands the clear error standard of review and its
application to this case. The dissent also claims that our use of
the presumption of regularity "moves the goal posts" and "calls
the gmne in the government's favor." Dissenting Op. at 2, 19.
As also set forth below, however, the dissent's high-pitched
rhetoric not only ignores the safeguards under which we have
already endorsed-albeit not explicitly-the presumption of
regularity but also fails to understand how the presumption of
regularity in fact aids the reliability inquiry of hearsay evidence.
Finally, I believe remand for further factfinding will be a
pointless exercise. Assuming he decides to testify, Latif cannot
persuasively counter the presumption of regularity. Nor can he
overconle the long odds against his exculpatory narrative by
testifying, as his' declaration already tells his story and any
embroidery thereof will only work against him. Accordingly, I
concur in the remand judgment only.
SECRET 2 SECRET
I.
This appeal hinges on one question: did the district court
correctly find the government's key piece of evidence
unreliable? See Abdah v. Obama (Latif), No. 04-1254,2010 WL
3270761, at *9, slip op. at 25 (D.D.C. July 21, 2010). "The
question whether evidence is sufficiently reliable to credit is one
we review for clear error," Al Alwi v. Obama, --- F.3d ----, 2011
WL 2937134, at *6 (D.C. Cir. July 22,2011), and ordinarily this
standard of review creates little controversy.
The clear error standard requires us to reverse a factual
finding if" 'on the entire evidence' " we are" 'left with the
definite and firm conviction that a mistake has been
committed.' "Anderson v. City ofBessemer, 470 U.S. 564, 573
(1985) (quoting United States v. Us. Gypsum Co., 333 U.S.
364, 395 (1948)). The dissent first claims that we cannot
legitimately find clear error here, relying on our precedent that
"[w]here there are two permissible views of the evidence, the
factfinder's choice between them cannot be clearly erroneous,"
Awad v. Obama, 608 F.3d 1, 7 (D.C. Cir. 2010) (internal
quotations omitted), cert. denied, 131 S. Ct. 1814 (2011), and
that "[t]he task of resolving discrepancies among the various
accounts offered into evidence is quintessentially a matter ...
for the district court sitting as the fact-finder," Al-Madhwani v.
Obama, 642 F.3d 1071, 1076 (D.C. Cir. 2011) (internal
quotations omitted). See Dissenting Op. at 20, 31. But the
dissent apparently forgets that the quoted passages describe only
the starting point for clear error review. Granted, the district
court has wide latitude to resolve factual disputes-but only
within certain bounds. We must assure ourselves that the district
court's finding is "permissible" or "plausible in light of the
record viewed in its entirety." Anderson, 470 U.S. at 574. In
both Awad and Al-Madhwani, we examined the evidentiary
bases for the district court's factual findings and, finding them
SECRET 3 SECRET
within the range of "permissible" inferences to be drawn from
the evidence, concluded that the district court had not clearly
erred. See Awad, 608 F.3d at 6-9; AI-Madhwani, 642 F.3d at
1076. But in both Awad and AI-Madhwani, unlike here, the
district court's permissible inferences were based on the record
in its entirety-not on the view that one side's evidence,
standing in isolation, is plausible.
The dissent seems to suggest that ifLatifs story "on its own
terms[] is not 'intrinsic [allyJ implausible,' " then we cannot
review the district court's evaluation of the government's key
piece of evidence or other pieces of evidence. Dissenting Op. at
30,32. It is not enough, however, for the district court to base its
factual findings on some evidence in the record. The clear error
standard authorizes us to reverse a finding, not unless, but
" 'although there is evidence to support it.' " Anderson, 470
U.S. at 573 (quoting Us. Gypsum Co., 333 U.S. at 395)
(emphasis added); see also Easley v. Cromartie, 532 U.S. 234,
257 (2001) (finding clear error even where "record contains a
modicum of evidence offering support for the District Court's
conclusion"). Where the record contains conflicting evidence,
then, the clear error standard requires us, as the reviewing court,
to assess the comparative weight of the evidence both for and
against the district court's finding. It may be that the evidence
relied upon by the district court is insufficiently probative to
sustain its finding. See, e.g., Easley, 532 U.S. at 247, 250, 257
(clear error where statistical evidence "too small to carry
significant evidentiary weight," testimony did not provide "more
than minimal support" and other evidence did not "significantly
strengthen" district court's finding). Or the evidence may be
outweighed by other, more persuasive evidence. See, e.g.,
Anderson, 470 U.S. at 575 (credibility finding clearly erroneous
if"[ dJocuments or objective evidence ... contradict the witness'
story"); us. Gypsum Co., 333 U.S. at 396 (clear error
SECRET 4 SECRET
"[w]here . . . testimony is in conflict with contemporaneous
documents"). The dissent is simply wrong to equate Judge
Brown's careful and complete review of the record
evidence-which finds Latif s version both minimally
probative, Majority Op. at 45-46, and decisively outweighed by
the government's evidence, id. at 20-31-with a "wholesale
revision of the district court's careful fact findings," Dissenting
Op. at 2.
With the clear error framework in mind, there is no
difficulty in that the district court cle erred in
to credit
to on ty
we ac a government record, see Majority Op. at 6-20.
At the same time, the district court gave undue emphasis both to
SECRET 5 SECRET
and to Latif s "plausible"
...... "...,.........,,,.. veexp tra ,Latif,2010WL3270761,
at *9, slip op. at 26. The second error is especially glaring not
only in light of the district court's failure to make any finding
regarding Latifs credibility, see AI-Adahi v. Obama, 613 F.3d
1102, 1110 (D.C. Cir. 2010) (by "sp[ eaking] only of a possible
alternative explanation" for detainee's actions and failing to
"make any finding about whether this alternative was more
likely than the government's explanation," district court failed
to make any "comparative judgment about the evidence [that] is
at the heart of the preponderance standard of proof' (internal
quotations omitted)), cert. denied, 131 S. Ct. 1001 (2011), but
also in light of the inconsistencies between Latif s alternative
explanation-as set forth in his declaration submitted to the
district court-and his earlier statements
see Majority Op. at
conSI eVIdence taken as a whole," A wad, 608
F .3d at 7, I, like Judge Brown, cannot help but conclude that the
district court's finding regarding the unreliability o~
coupled with its finding regarding the mere plau~
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Latif s story is neither "permissible" nor "plausible in light of
the record viewed in its entirety," Anderson, 470 U.S. at 574.
of regularity to_ II.
The dissent also asserts that application of the presumption
"disturbs" the "careful and conscious
balance of the Important interests at stake" we have struck in
past detainee decisions for admitting and assessing the reliability
of hearsay evidence. Dissenting Op. at 12. Judge Brown
thoroughly disposes of the assertion-laying out in detail that,
while we have not heretofore enunciated the presumption of
regularity, we have all but done so. See Majority Op. at 14-20.
And we most assuredly are not "discard[ing] the unanimous,
hard-earned wisdom" of district courts that have assessed
hearsay evidence in detainee cases. Dissenting Op. at 13. To the
contrary, sound evidentiary considerations warrant incorporating
the presumption of regularity-in the careful manner we
expressly do today-into the district court's overall reliability
assessment of these records as we routinely do with others,
including the point that the facts supporting the presumption of
regularity have significant probative force in their own right, as
discussed below.
Moreover, our holding does nothing to disturb the existing
framework for hearsay evidence. All hearsay evidence "must be
accorded weight only in proportion to its reliability." Barhoumi
v. Obama, 609 F.3d416, 427 (D.C. Cir. 2010). The district court
assesses reliability in the first instance, see Parhat v. Gates, 532
F.3d 834, 847-48 (D.C. Cir. 2008), and in so doing must
consider whatever "indicia of reliability" the hearsay evidence
manifests as well as any" 'additional information' "bearing on
the question of reliability. Bensayah v. Obama, 610 F.3d 718,
SECRET 7 SECRET
725-26 (D.C. Cir. 2010) (quoting Parhat, 532 F.3d at 849).3 The
district court considers a wide range offactors-recognizing that
anyone of several "hearsay dangers" might render the hearsay
unreliable, see Williamson v. United States, 512 U.S. 594, 598
(1994) ("The declarant might be lying; he might have
misperceived the events which he relates; he might have faulty
memory; his words might be misunderstood or taken out of
context by the listener."). Information "relayed through an
3 Parhat also requires that hearsay evidence "be presented in a
form, or with sufficient additional information, that permits the ...
court to assess its reliability." 532 F.3d at 849. As Barhoumi notes,
however, the quoted passage has more to do with the form than with
the substance of hearsay evidence: "the problem with the intelligence
reports at issue in Parhat was that they failed to provide 'any of the
underlying reporting upon which the documents' bottom-line
assertions are founded,' thus inhibiting our ability to evaluate the
reliability of those assertions." 609 F.3d at 428 uot' Parhat, 532
F.3d at 846-47)).
SECRET 8 SECRET
interrogator's account" presents an additional "level of technical
hearsay because the interrogator is a third party unavailable for
cross examination." AI-Bihani v. Obama, 590 F.3d 866, 879
(D.C. Cir. 2010), cert. denied, 131 S. Ct. 1814 (2011). The
presumption of regularity does not come into play with respect
to many aspects of hearsay, however; for example, it does not
vouch for assertions made about a detainee by a third party nor
does it answer the reliability inquiry if the detainee claims he
was coerced in making admissions. Rather, the presumption
touches on only one dimension of reliability: "it presumes the
government official accurately identified the source and
accurately sumlnarized his statement, but it implies nothing
about the truth of the underlying non-government source's
statement." Majority Op. at 10. Thus it addresses only the
question whether the "interrogator's account,"AI-Bihani, 590
F.3d at 879, faithfully records the underlying statement. See,
e.g., United States v. Smith, 521 F.2d 957, 964-65 (D.C. Cir.
1975) ("it is presumed that [the police officer] accurately
transcribed and reported [the witness's] story" but "complaining
witness' [s] description of the crime, recorded by the police
officer in his report, . . . does not deserve the presumption of
regularity").
The Federal Rules of Evidence, which carve out exceptions
to the general rule against hearsay on the ground that "some
kinds of out-of-court statements are less subject to ... hearsay
dangers," Williamson, 512 U.S. at 598, make certain public
records admissible, using "the assumption that a public official
will perform his duty properly" as well as "the reliability factors
underlying records of regularly conducted activities generally."
Fed. R. Evid. 803(8) advisory committee's notes (1972
Proposed Rules). Granted, in detainee habeas cases, the Rules do
not decide the admissibility of hearsay evidence. Barhoumi, 609
F.3d at 422 (rejecting as "counter to this court's [precedent]" the
SECRET 9 SECRET
claim of error in admission of hearsay evidence "absent a
demonstration by the government that they fall within an
established hearsay exception in the Federal Rules of
Evidence"). But because the presumption of regularity is based
on much the same rationale as the public records exception, see
United States v. Chern. Found., 272 U.S. 1,15 (1926)
(presumption applies because "courts presume that [public
officers] have properly discharged their official duties."); cf
Legille v. Dann, 544 F.2d 1, 7 n.39 (D.C. Cir. 1976)
(presumption of due delivery of the mail and presumption of
regularity in government agency's handling thereof "have a
common origin in regularity of action"), the facts supporting the
presumption of regularity carry significant probative force in
their own right. 4 See Legille, 544 F.2d at 9 ("The facts giving
rise to the presumption [of procedural regularity] would also
have evidentiary force, and as evidence would command the
respect normally accorded proof of any fact."); Webster v.
Estelle, 505 F.2d 926, 930 (5th Cir. 1974) ("The same special
reliability that warrants relaxing the hearsay rule as to [public
records] also warrants according them great evidentiary
weight."), cert. denied, 421 U.S. 918 (1975); Stone v. Stone, 136
F.2d 761, 763 (D.C. Cir. 1943) ("[T]he basic fact that public
officials usually do their duty . . . has . . . that quality and
quantity of probative value to which it is entitled, entirely apart
from any presumption; just as is true of any other fact which is
based on common experience."); Alsabri v. Obarna, 764 F.
4While the facts surrounding hearsay evidence may not always
justify applyin the p tion of regularity, it is prop lied
here because
SECRET 10 SECRET
~.D.C. 2011) ("The fact that _
_ were prepared by government agents In
the course of their normal intelligence gathering duties provides
a degree of support for their reliability."). The presumption of
regularity thus embodies a common-sense judgment about the
general reliability of hearsay evidence memorialized in a
government record. And the district court's failure to apply the
presumption of regularity is an error going to the heart of the
"careful and fine-grained approach to the assessment of
reliability," Dissenting Op. at 13, it is required to undertake.
N or does the requirement that a challenger offer "clear or
specific evidence" to defeat the presumption of regularity, Riggs
Nat'l Corp. v. Comm'r, 295 F.3d 16, 21 (D.C. Cir. 2002),
somehow short-circuit the district court's reliability analysis, as
the dissent suggests. Dissenting Op. at 9-10. It is well
established that clear error can occur if a district court fails to
credit otherwise reliable evidence on the basis of insignificant
gaps therein. See, e.g., Almerfedi v. Obama, --- F.3d ----, 2011
WL 2277607, at *5 (D.C. Cir. June 10, 2011) ("district court
clearly erred in regarding [hearsay evidence] as unreliable"
because of "inconsequential" "discrepancy in dates"). Requiring
a challenger to produce "clear or specific evidence"-that is,
evidence with real probative force-to defeat the presumption
of regularity prevents a district court from relying on minor
discrepancies to reject a government record. At the same time
it disc s the kind of .
SECRET 11 SECRET
SECRET 12 SECRET
III.
Based on the considerations outlined above-as well as
Judge Brown's comprehensive opinion-I believe the district
court clearly erred in failing to credit _ Unlike my
colleague, however, I also believe reman~se for further
factfinding will be a waste of time and judicial resources. Judge
Brown believes remand-with the possibility that Latif might
choose to testify-is necessary to allow the district court to
correctly weigh Latif's credibility. See Majority Op. at 36-38.
While I agree that the district court erred in failing to assess
Latif's credibility, Majority Op. at 31-38-for "[a]tno point did
the court make any finding about whether [Latif's narrative] was
more likely than the government's explanation," Al-Adahi v.
Dbama, 613 F.3d at 1110-1 also believe remand is unnecessary
because "the record permits only one resolution of the factual
issue," Pullman-Standardv. United Steel Workers ofAm., AFL-
CID, 456 U.S. 273, 292 (1982); see Easley, 532 U.S. at 257
(finding clear error and reversing because "we do not believe
that providing appellees a further opportunity to make their ...
arguments in the District Court could change th[e] result").
The apparent premise behind Judge Brown's argument
for remand is that Latif might of testimon so compelling that
Mer
it would shake our confidence and overcome any
doubt about Latif's credibility. But w at testimony could
possibly accomplish so much? If Latif were to repeat on the
stand the same unpersuasive assertions he made in his
declaration-assertions that are inconsistent with his earlier
court wou e no
'-U'.."Jv .. ~eve
him. "Credibility involves more than demeanor" and
instead "apprehends the over-all evaluation of testimony in light
of its rationality or internal consistency and the manner in which
SECRET 13 SECRET
it hangs together with other evidence." United States v. McCoy,
242 F.3d 399, 408 n.15 (D.C. Cir.) (internal quotations omitted),
cert. denied, 534 U.S. 872 (2001); see also Anderson, 470 U.S.
at 575 ("[F]actors other than demeanor and inflection go into the
decision whether or not to believe a witness. Documents or
objective evidence may contradict the witness' story; or the
story itself may be so internally inconsistent or implausible on
its face that a reasonable factfinder would not credit it. "). If, on
the other hand, Latif were to change his story once again on
remand, the very fact that he "made inconsistent statements ...
would tend to undermine his credibility." United States v.
Stover, 329 F.3d 859,867-68 (D.C. Cir. 2003), cert. denied, 541
U.S. 1018 (2004). Latifs credibility would suffer even if he
largely repeated the story in his declaration but also decided to
embellish it with additional detai
_-because" statements omIt
:= are inconsistent if it would have been
'natural' for the witness to include them in the earlier
statement." United States v. Stock, 948 F.2d 1299, 1301 (D.C.
Cir. 1991). In short, Latif could only dig himself deeper into a
hole on remand. 6 Because the record can reasonably be viewed
in only one way-that is, against him-I would not remand
simply to give Latif a shovel but would instead conclude the
litigation with the only result the evidence allows: that the
government has indeed "shown that Latif is part of Al Qaeda or
6Indeed, even Latif's continued failure to testify would likely
work against him. Majority Op. at 37-38; see Mitchell v. United
States, 526 U.S. 314, 328 (1999) (" '[T]he Fifth Amendment does not
forbid adverse inferences against parties to civil actions when they
refuse to testify in response to probative evidence offered against
them.' " (quoting Baxter v. Palmigiano, 425 U.S. 308,318 (1976))).
SECRET 14 SECRET
the Taliban." Latif, 2010 WL 3270761, at *1, slip op. at 3.
SECRET SECRET
Judge, dissenting: The government's
.L...,...,vJ.J...,"J.J.ts' Br. 10, is a single
out parties arguments a Report's internal and
external indicia of reliability, the district court found it "not
sufficiently reliable to support a finding by a preponderance
of the evidence that Latif was recruited by an Al Qaeda
member or trained and fought with the Taliban." Abdah
(Latif) v. Obama, No. 04-cv-01254, slip op. at 25 (D.D.C.
July 21, 2010). According to the district court, "there is a
tion as to whether the [Report] accurately reflects
the incriminating facts in the [Report] are not
UV.l."~V'U.. and Latif has presented a plausible alternative
story to explain his travel." Id. at 26. The government
concedes that its case for lawfully detaining Latif "turn [s]" on
the Report. Appellants' Br. 5. This, then, represents a first
among the Guantanamo habeas appeals in this circuit: never
before have we reviewed a habeas grant to a Guantanamo
detainee where all concede that if the district court's fact
findings are sustained, then detention is unlawful. Cf
Almerfedi v. Obama, No. 10-5291, 2011 WL 2277607, at *4-
5 (D.C. Cir. June 10, 2011) (reversing habeas grant and
finding detention lawful based on conceded facts and facts
found by the district court); Uthman v. Obama, 637 F.3d 400,
402 (D.C. Cir. 2011) (same); AI-Adahi v. Obama, 613 F.3d
1102, 1103, 1111 (D.C. Cir. 2010) (same).
But rather than apply ordinary and highly deferential
clear error review to the district court's findings of fact, as
this circuit has done when district courts have found the
government's primary evidence reliable, the court, now
SECRET 2 SECRET
facing a finding that such evidence is unreliable, moves the
goal posts. According to the court, because the Report is a
government-produced document, the district court was
required to presume it accurate unless Latif could rebut that
presumption. Maj. Op. at 11. In imposing this new
presumption and then proceeding to find that it has not been
rebutted, the court denies Latif the "meaningful opportunity"
to contest the lawfulness of his detention guaranteed by
Boumediene v. Bush, 553 U.S. 723, 779 (2008).
Compounding this error, the court undertakes a wholesale
revision of the district court's careful fact fmdings. Flaws in
the Report the district court found serious, this court now
finds minor. Latif s account, which the district court found
plausible and corroborated by documentary evidence, this
court now "hard to swallow" Maj. Op. at 39. _
=
the district court
court now finds do in fact
implicate him. And ,pn and on, all without ever concluding
that the district court's particular take on the evidence was
clearly erroneous. But see Fed. R. Civ. P. 52(a)(6) ("Finding
of facts, whether bas~d on oral or other evidence, must not be
set aside unless clear,ly erroneous .... ").
In Part I, I explain why the district court committed no
error in declining to apply a presumption of regularity to the
Report. In Part II, I apply the deferential clear error standard
this circuit has used throughout these Guantanamo habeas
cases. Finding no clear error, I would affirm the district
court's grant of the writ of habeas corpus.
I.
All agree that this case turns on whether the district court
SECRET 3 SECRET
correctly found that the government's key piece of evidence,
the Report, was unreliable. And all agree that the "question
whether evidence is sufficiently reliable to credit is one we
review for clear error." Al Alwi v. Obama, No. 09-5125,2011
WL 2937134, at *6 (D.C. Cir. July 22, 2011). Our
disagreement centers on whether the district court was
required to afford the Report a presumption of regularity.
The presumption of regularity stems from a humble
proposition-that "[public officers] have properly discharged
their official duties." Sussman v. u.s. Marshals Serv., 494
F.3d 1106, 1117 (D.C. Cir. 2007) (quoting United States v.
Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)). The contours
of the presumption are best understood by how courts
typically apply it. For example, courts assume that "official
tax receipt[s]" are properly produced, Riggs Nat'l Corp. v.
Comm'r, 295 F.3d 16, 21 (D.C. Cir. 2002), that state court
documents accurately reflect the proceedings they describe,
Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir. 1985), that
mail was duly handled and delivered, Legille v. Dann, 544
F.2d 1, 7 n.39 (D.C. Cir. 1976), and that agency actions in the
ordinary course of business are undertaken on the basis of
fact, Citizens to Preserve Overton Park, Inc. v. Volpe, 401
U.S. 402, 415 (1971) (citing Pacific States Box & Basket Co.
v. White, 296 U.S. 176, 185 (1935)).
These cases-in fact every case applying the presumption
of regularity-have. ~omething in common: actions taken or
documents produced within a process that is generally reliable
because it is, for example, transparent, accessible, and often
familiar. As a result, courts have no reason to question the
output of such pr0gesses in any given case absent specific
evidence of error. Such a presumption rests on common
sense. For instance, courts have no grounds to credit a
defendant's allegation that "the state court trial docket" or
8ECRET 4 8ECRET
"the waiver of trial by jury form" contain inaccurate
information when that defendant has no support other than a
self-serving allegation. See Thompson v. Estelle, 642 F .2d
996, 998 (5th Cir. 1981) (noting that the "district court could
properly rely upon the regularity of the state court's
documents in preference to [the appellant's] self-serving
testimony"). Courts presume accuracy because they can trust
the reliability of documents produced by such processes.
Courts and agencies are hardly infallible, but for the most part
we have sufficient familiarity and experience with such
institutions to allow us to comfortably rely on documents they
produce in the ordinary course of business.
In saying that "[c]ourts regularly apply the
presumption ... [to] processes that are anything but
'transparent,' 'accessible,' and 'familiar,' " Maj. Op. at 13,
this court cites a single case where we presumed the accuracy
of a tax receipt from the Central Bank of Brazil for purposes
of claiming foreign tax credits under the Internal Revenue
Code. See id. at 13 (citing Riggs Nat'/ Corp., 295 F.3d at 20-
22). As the Supreme Court has held, the presumption of
regularity applies to "the actions of tax officials," and the
"records of foreign public officials." See Riggs Nat '/ Corp.,
295 F.3d at 20 (citing Supreme Court cases). But again, this is
because we have no reason to question or be concerned with
the reliability of such records.
By contrast, the Report at issue here was produced in the
fog of war by a clandestine method that we know almost
nothing about. It is not familiar, transparent, generally
understood as reliable, or accessible; nor is it mundane,
quotidian data akin to state court dockets or tax receipts.
Its output, a intelligence report,
was, in this court sown ared in stressful and
chaotic conditions, filtered through interpreters, subject to
SECRET 5 SECRET
transcription errors, and heavily redacted for national security
purposes." Maj. Op. at 6. Needless to say, this is quite
different from assuming the mail is delivered or that a court
employee has accurately jotted down minutes from a meeting.
To support its approach here, this court invokes
presumptions of regularity for state court fact-finding and for
final judgments in criminal habeas proceedings. See id. at 12-
13. Aside from the abstract and uncontroversial proposition
that courts should be sensitive to the separation of powers as
well as to federalism, id. at 12, the analogy makes little sense.
State court judgments and fact findings arise out of a formal
and public adversarial process where parties generally have
attorneys to zealously guard their interests, and where neutral
state court judges, no less than" federal judges, pledge to apply
the law faithfully. That federal courts give a presumption of
regularity to jUdgments and fact findings that emerge from
such a process, where criminal defendants have ample
opportunity to challenge adverse evidence, see Lackawanna
Cnty. Dist. Atty v. Coss, 532 U.S. 394, 402-03 (2001),
provides no reason for habeas courts also to presume the
accuracy of intelligence reports
prepared in war. statutory habeas,
where federal review follows state court proceedings,
constitutional habeas is the only process afforded
Guantanamo detainees. Cf Boumediene, 553 U.S. at 780 ("It
appears that the common-law habeas court's role was most
extensive in cases of pretrial and noncriminal detention,
where there had been little or no previous judicial review of
the cause for detention. Notably, the black-letter rule that
prisoners could not controvert facts in the jailer's return was
not followed (or at least not with consistency) in such
cases.").
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In its analysis, this court ignores a key step in the logic of
applying a presumption of regularity, namely, that the
challenged document emerged from a process that we can
safely rely upon to produce accurate information. Reliability,
not whether an official duty was performed, cf Maj. Op. at 6,
is the touchstone inquiry in every case this court cites. For
example, in a probation revocation decision by the Seventh
Circuit-which, incidentally, never uses the term "regularity,"
see United States v. Thomas, 934 F .2d 840 (7th Cir. 1991)-
the court found that the probation report "was of the type that
generally carries a presumption of reliability," id. at 846
(emphasis added). A probation officer not only "testified [and
was cross-examined]· about the preparation, maintenance, and
interpretation of special reports prepared by the probation
office" but also "applied that ... knowledge to [the report at
issue]." Id. at 842. Given that testimony, and given also that
"the district court. , . had reviewed the report 'many times,' "
the Seventh Circuit saw no reason to think the report was
"inaccurate." Id. at 846. Reinforcing its emphasis on the
importance of ~sses.~~ng reliability, the Seventh Circuit cited
an earlier decision, United States v. Verbeke, where it had
found admissible a report produced by a drug treatment center
because the report was found to be "reliable," because the
defendant had an opportunity to cross-examine its author, and
because no evidence discredited it. 853 F.2d 537, 539 (7th
Cir. 1988). These decisions do not, as this court now does, ask
only whether an official duty was regularly performed; rather,
they examine the reliability of the proffered evidence and the
process that produced it. As yet another decision the court
cites puts it, courts will permit "the introduction of
'demonstrably reliable' hearsay evidence in probation
revocation proceedings." United States v. McCallum, 677
F.2d 1024, 1026 (4th CiT. 1982) (emphasis added).
SECRET 7 SECRET
To be sure, the
declaration
is, nor anywhere near
or expenence with that course of business that
would allow us to comfortably make presumptions about
whether the output of that process is reliable. Cf Bismullah v.
Gates, 501 F.3d 178, 185-86 (D.C. Cir. 2007) (finding that it
was "not at all clear" that even the Combatant Status Review
Tribunal was "entitled to a presumption of
regularity ... because a CSRT does not have the transparent
features of the ordinary administrative process and the
[military officer charged with obtaining and reviewing
evidence] is not the final agency decisionmaker"). Of course,
we may take some assurance from the fact that the Executive
Branch acts in good faith when carrying out its duties. But the
very point of Boumediene is to ensure that detainees have a
"meaningful opportunity" to subject the Executive's detention
decisions to scrutiny by an independent Article III court.
This is not to say that reports similar to the one at issue
here are necessarily unreliable. Perhaps after careful scrutiny
district courts will conclude that many are reliable. See, e.g.,
Khan v. Obama, No. 10-5306, 2011 WL 3890843, at *4-5
(D.C. Cir. Sept. 6, 2011). My point is far more lTIodest:
because we are unfamiliar with thIS highly secretive process,
and because we have no basis on which to draw conclusions
about the general reliability of its output, we should refrain
from categorically affording it presumptions one way or the
other. This approach does not reflect "skeptic[ism]" or
"cynic[ism]" about the Executive Branch, Maj. Op. at 8-it is
nothing more than what Boumediene directs us to do. See
SECRET 8 SECRET
Boumediene, 553 U.S. at 786 (requiring habeas court "to
assess," not presume, "the sufficiency of the Government's
evidence" (emphasis added)). And indeed, from time
immemorial courts have been skeptical of hearsay evidence
without implying bad faith or cynicism about the Executive
(or whoever is attempting to present that evidence).
Nor am I suggesting that district courts should give no
weight to sworn declarations officials that
such
a
's reliability.
For one thing, it suggests fact authentic,
i.e., that it rec;tlly i~ an Relying on
similar declaration~, many courts have heard
Guantanamo h,\beas cases-including the district court here-
have adopted a presumption of authenticity for government
records like the Report even while consistently rejecting a
presumption that su~h records are accurate. See, e.g., Alsabri
v. Obama, 764 F. Supp. 2d 60, 66-67 & n.8 (D.D.C. 2009);
Hatim v. Obama, 677 F. Supp. 2d 1, 10 (D.D.C. 2009),
vacated on other grounds, F.3d 720 (D.C. Cir. 2011); Ahmed
v. Obama, 613 F. Supp. 2d 51, 54-55 (D.D.C. 2009). But see,
e.g., Al Kandari v. United States, 744 F. Supp. 2d 11, 19-20
(D.D.C. 2010) (declining to adopt a presumption of either
authenticity or accuracy). Going one step further, habeas
courts might also properly rely on the analogy between
intelligence reports and business records to conclude that
"[t]he fact that these reports were prepared by government
agents in the course of their normal intelligence gathering
duties provid~s a degree of support for their reliability."
Alsabri, 764 F. Supp. 2d at 68. I thus have no problem with
SECRET 9 SECRET
the observation, made in a decision cited by the concurrence,
Con. Op. at 10, that "the basic fact that public officials usually
do their duty ... has ... that quality and quantity of probative
value to which it is entitled." Stone v. Stone, 136 F.2d 761,
763 (D.C. Cir. 1943). As that decision goes on to say,
however, "the probative strength of the evidence is for the
[factfinder] to consider." Id. Nor do I quarrel with the
observation t records
of inCUlpatory
are more to evidence than
uV'''''.U.l.J.V,l.I.'-''' reporting third-party (and sometimes anonymous)
hearsay.
But this court goes well beyond these modest
conclusions-and well beyond what the government actually
argues in its briefs-when it relies on the bare fact that
government official~ have incentives to maintain careful
intelligence reports as a reason to require district courts to
presume that such reports are not only authentic, but also
accurate, despite circumstances casting their reliability into
serious doubt. See Appellants' Br. 30-31 (arguing in passing
that the district court, in this case erred by failing to give any
weight to the general presumption that government officials
carry out their duties properly but never urging adoption of a
categorical, burden-shifting presumption of regularity);
Appellants' Reply Br. 22-24 (same). One need imply neither
bad faith nor lack of incentive nor' 'tude on the of
SECRET 10 SECRET
reliable, transparent, or accessible to warrant an automatic
presumption of regularity.
It is thus not at all surprising that our court has never
before applied the presumption of regularity in Guantanamo
Bay habeas cases despite numerous opportunities to do so.
For instance, in Barhoumi, the government, seeking to
establish that the petitioner was "part of' an al Qaida
associated militia, relied on an intelligence report that
included an English translation of a diary allegedly authored
by a member of that militia. Barhoumi v. Obama, 609 F.3d
416, 420 (D.C. Cir. 2010). Among other challenges to this
evidence, we considered petitioner's argument that the
government's failure to make a copy of the diary available in
its original Arabic or to provide information regarding the
qualifications or motives of the translator raised doubts about
reliability. A!though we characterized this objection as
"troubling" and ."accept[ed] that the additional layer of
hearsay added by the diary's translation render[ ed] it
somewhat less reliable than it otherwise would [have] be[ en]
(particularly if the government had provided information
regarding its translation)," we nonetheless reviewed the
diary's internal and external indicia of reliability and
concluded that the district court had not clearly erred by
relying on it. Id. at 430-32. Had we believed that a
presumption of regularity applied to the translation recorded
in the intelligence report, none of that extended analysis
would have been necessary. Instead, we would have simply
presumed the docum~nt' s accuracy-and expected the district
court to do the same. As my colleagues begrudgingly admit,
Maj. Op. at 16-17, that is exactly what the government asked
us to do in Barhoumi, but to no avail. See Appellees' Br. 52,
Barhoumi, 609 F.3d 416 (No. 09-5383) (arguing that
"translations are presumed to be accurate in the absence of
evidence to the contrary" (emphasis added)).
SECRET 11 SECRET
We followed exactly the same playbook in Bensayah and
Al Alwi, two cases in which we reviewed district court
reliability determinations about
vernment ~'~Jl~""''''.L.l.F">'''''''''
v.
. In Bensayah,
rather than granting the government's evidence a presumption
of regularity on the grounds that it consisted of government
records regularly kept, we carefully evaluated other evidence
purporting to corroborate the document's contents, ultimately
concluding that the district court committed clear error by
finding that document reliable. See id. at 726-27. Nor did we
apply a presumption o .ulari in Al Alwi even though the
re
government's evidenc consisted of interrogation
summaries allegedly reportIng t e petitioners' own statements
and even those documents had indicia of
reliability deed, in Al
Alwi we a .PI court must take
the absence of corroboration into account in assessing the
reliability of petitioner's out-of-court statements," Al Alwi,
2011 WL 2937134, at *6 (emphasis added)-that directly
conflicts with this court's observation that "[b]y definition, a
presumptively reliable record needs no additional
corroboration unless the presumption is rebutted." Maj. Op. at
35.
And most recently, in Khan v. Obama, we reviewed the
district court's finging that the government's informant
reports were reliable. Again, rather than applying a
presumption of regularity, we spent page after page carefully
evaluating the reliability of the reports. In affirming the
district court's determination that the documents were
reliable, we emphasized external indicia of reliability, such as
SECRET 12 SECRET
photographs and items seized from petitioner's home, as well
as detailed government declarations explaining why the
reports were reliable. Khan, 2011 WL 3890843, at *7-10.
Our approach in Barhoumi, Al Alwi, Bensayah, and Khan
reflects a ·careful and conscious balancing of the important
interests at stake. While federal courts typically exclude
hearsay unless it falls within a specific exception, see Fed. R.
Evid. 803, we understand that in the context of enemy
combatant proceedings such evidence may be the best
available. Barhoumi, 609 F.3d at 427. Thus, rather than acting
on our deep, historically rooted skepticism of hearsay by
excluding such evidence altogether, we admit it but are
careful to assign it no more weight than it is worth as
measured by any available indicia of reliability. See id.
(holding that hearsay evidence is "always admissible" in such
proceedings, bVt tha.~ it "must be accorded weight only in
proportion to its reliability"); see also AI-Bihani v. Obama,
590 F.3d 866,. 879 (D.C. Cir. 2010). The presumption of
regularity, which· this court expressly premises on
"defer[ence] to Executive branch expertise," Maj. Op. at 12-
13, disturbs this car~~l balance, substituting a presumption in
place of careful district court "review and assess[ment of] all
evidence from both ~ides." AI-Bihani, 590 F.3d at 880. Given
the degree to whIch our evidentiary procedures already
accommodate the government's compelling national security
interests by admitting all of its evidence, including hearsay;
given the heightened risk of error and unlawful detention
introduced by requiring petitioners to prove the inaccuracy of
heavily redacted government documents; and given the
importance of preserving "the independent power" of the
habeas court "to assess the actions of the Executive" and
carefully weigh its evidence, id., I find this court's departure
from our practice deeply misguided.
SECRET 13 SECRET
To be clear, I make no claim that anything in Barhoumi,
Bensayah, Al Alwi, Khan, or any of our other Guantanamo
habeas cases affirmatively rules out the possibility of applying
a rebuttable presumption of accuracy to certain kinds of
government evidence in some circumstances. My point is
only that our cases, proceeding in the very common-law-like
fashion that my colleagues describe, see Maj. Op. at 19, have
endorsed and applied a careful and fine-grained approach to
the assessment of reliability. We have applied that approach
to claims that a document was mistranslated (Barhoumi) and
to claims that a document is insufficiently corroborated (AI
Alwi, Khan )-two of the issues in this case. We have applied
that approach to a (Bensayah,
Al A and to .
~
_ we
(Barhoumi, Al Alwi, ,Khan) and overturned (Bensayah) district
court findings that a government document is reliable. The
only feature of this case not previously encountered is that
here the government lost: the district court found the
dispositive gov~rnment Report unreliable and granted a writ
of habeas corpus.
Moreover, the presumption discards the unanimous, hard-
earned wisdom of our district judges, who have applied their
fact-finding expertise to a wide array of government hearsay
evidence. In doing so, they have developed a uniquely
valuable perspective that we ought not so quickly discard.
These judges, including the district judge in this case, have
unanimously rejected motions to give government evidence a
presumption of accuracy. See, e.g., Alsabri, 764 F. Supp. 2d at
66 (noting "ample reason" to decline to presume the accuracy
of the goverrn;nent's exhibits and explaining that circuit
precedent supported its approach); Al Kandari, 744 F. Supp.
2d at 19 ("Simply assuming the Government's evidence is
SECRET 14 SECRET
accurate and authentic does not aid [the reliability] inquiry.");
Ahmed, 613 F. Supp. 2d at 55 ("[T]here is absolutely no
reason for this Court to presume that the facts contained in the
Government's exhibits are accurate."); see also Benjamin
Wittes, Robert M. Chesney & Larkin Reynolds, The
Emerging Law of Detention 2.0, at 52 (May 12, 2011)
(indicating that "none of the publicly available rulings on the
issue have favored the government"),
available at http://www.brookings.edu/papers/2011105_guant
anamo_ wittes.aspx. Rather than ignoring serious doubts about
government evidence by presuming its accuracy, our district
courts have instead done exactly what we expect of careful
factfinders and precisely what our case law demands:
scrupulously assess the reliability of each piece of evidence
by applying "a long, non exclusive list of factors ... such as:
consistency or inconsistency with other evidence, conditions
under which tp~ exhibit and statements contained in it were
obtained, accuracy or translation and transcription, personal
knowledge of [the] declarant ... , levels of hearsay,
recantations, etc." Ahmed, 613 F. Supp. 2d at 55; see also
Sulayman v. Obam(l, 729 F. Supp. 2d 26, 42 (D.D.C. 2010)
("As to many of the intelligence reports [the government]
relies upon . . . there is nothing in the record regarding the
qualifications of the interpreters used in those interrogations
to render a reliable interpretation. There are other intelligence
reports ... in which the government has failed to provide
foundational evidenc.e that those statements 'were made under
circumstances that render them intrinsically reliable or were
made by reliable so~rces.' " (citation omitted)).
Brushing aside these district court rulings, my colleagues
think that those courts "may" have been denying a
presumption of accuracy because they "[c]onfus[ ed]" it for a
presumption oftruth,. Maj. Op. at 9, the difference being that
the latter presumes the content of a report is true, whereas the
SECRET 15 SECRET
former presumes that the government official
did so ...........,.................. .
no nor do I, core
question presented in this case is whether the Report
accurately reflects _ Unsurprisingly, my
colleagues cite not a si~ere a district court refers
to a presumption of truth or, for that matter, a single instance
in which the government argued for a presumption of truth
rather than a presumption of accuracy. They cite Ahmed, but
nowhere did the district court there say that "the requested
presumption would go to the truth of 'the facts contained in
the Government's exhibits.' " Maj. Op. at 10 (citing Ahmed,
613 F. Supp. 2d at 55). Rather, the district court denied a
presumption of accuracy, doing so for several reasons,
including the need to assess the "accuracy of translation and
transcription," and not just because of alleged torture, as this
court now implies. 613 F. Supp. 2d at 55; see also Al Mutairi
v. United States, 644 F. Supp. 2d 78, 84 (D.D.C. 2009)
(expressing concern that the government's evidence "is based
on reports of interrogations (often conducted through a
translator) where translation or transcription mistakes may
occur"). In Al Mutairi, the district court even pointed to
evidence in that very case exemplifying such problems: "for
over three years" the government had, "based on a
typographical error in an interrogation report," erroneously
insisted "that Al Mutairi manned an anti-aircraft weapon in
Afghanistan." Id.; see also Al Rabiah v. United States, 658 F.
Supp. 2d 11, 18 (D.D.C. 2009) (noting "discrepan[cies]"
between two reports summarizing the same interrogation that
the government had made no attempt to reconcile); Al Odah v.
United States, 648 F. Supp. 2d 1, 6 (D.D.C. 2009) (noting that
"interrogators and/or interpreters included incorrect dates in
three separate reports that were submitted into evidence based
SECRET 16 SECRET
on misunderstandings between the Gregorian and the Hijri
calendars"). Indeed, the same district court whose decision we
now review explained in another Guantanamo case that it
"has learned from its experience with these cases that the
interrogation summaries and intelligence reports on which
[the Government] rel[ies] are not necessarily accurate and,
perhaps more importantly, that any inaccuracies are usually
impossible to detect." Odah v. Obama, No. 06-cv-1668, slip
op. at 3 (D.D.C. May 6, 2010); see also id. ("[T]here are
many steps in the process of creating these documents in
which error might be introduced [:] . . . the interpreter must
understand the question posed and correctly translate it; the
interviewee must understand the interpreter's recitation of the
question; the interpreter must understand the interviewee's
response and correctly interpret it; the interrogator must
understand the interpreter's translation of the response; the
interrogator must take accurate notes of what is said; and the
interrogator must accurately summarize those notes when
writing the interrogation summary at a later time."). Of
course, concerns about the accuracy of the reports necessarily
raise concerns about their truth. But there are no grounds for
assuming the district courts are confused about this
distinction.
In support of a presumption of regularity, this court relies
on the plurality opinion in Hamdi, which, applying Due
Process analysis, states that "the Constitution would not be
offended by a presumption in favor of the Government's
evidence" in enemy combatant proceedings for citizen
detainees "so long as that presumption remained a rebuttable
one and fair opportunity for rebuttal were provided." Hamdi
v. Rumsfeld, 542 U.S. 507, 534 (2004) (plurality opinion).
According to this court, because the Hamdi plurality
provisionally blessed such a general presumption, its own
presumption requiring deference to official government
SECRET 17 SECRET
documents must pass constitutional muster. Maj. Op. at 7. But
the Hamdi plurality made clear that the presumption it
sanctioned would apply only if the government "puts forth
credible evidence that the habeas petitioner meets the enemy-
combatant criteria." 542 U.S. at 534 (emphasis added); see
also Almerfedi, 2011 WL 2277607, at *4 & n.7 (explaining
the Hamdi framework requires the government to "put forth
credible facts" tending to show that the petitioner meets the
detention standard, such as that he received military training
at an al Qaida camp, which the petitioner can then rebut with
his own facts and explanation). In other words, a presumption
is acceptable if the government can first show that its
evidence is credible, but the Hamdi pluraJity never suggested
that the government could make that showing by relying on a
presumption that government-produced evidence is credible
and accurate. It is the latter presumption that is at issue here
and about which the Hamdi plurality had nothing to say.
Given that the district court in this case concluded that the
Report was "not sufficiently reliable," Latif, slip op. at 25-
i.e., that it was not credible-the court's reliance on the
Hamdi plurality to defend its presumption of regularity is
misplaced.
This court believes that our decisions in AI-Bihani, 590
F.3d 866, and Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008)
support the "continuing viability" of applying a presumption
of regularity to Guantanamo habeas cases. Maj. Op. at 14. In
AI-Bihani, however, although the district court "reserved [the]
authority" granted by its case management order to presume
the government's evidence accurate, it went on to "assess[]
the hearsay evidence's reliability as required by the Supreme
Court." AI-Bihani, 590 F.3d at 880. Even the government
agrees with this view of AI-Bihani. See Appellees' Br. 52,
Barhoumi, 609 F.3d 416 (No. 09-5383) ("In this case, as in
Bihani, the district court did not presume the accuracy or
SECRET 18 SECRET
authenticity of the government's evidence." (emphasis
added)). The most one can say about Al-Bihani on this issue is
that we suggested-in dicta-that a district court could apply
a presumption to a particular piece of evidence if
appropriate-a power the district court in that case declined to
exercise. This is a far cry from the holding today-that all
such reports and their underlying hearsay must be granted a
presumption of regularity. As to Parhat, a pre-Boumediene
case arising under the Detainee Treatment Act of 2005, it is
true that the Act incorporated a "rebuttable presumption that
the Government Evidence is genuine and accurate." Maj. Op.
at 15 (emphasis removed). But in that case, we took the
opportunity to clarify that, at a minimum, hearsay evidence
"must be presented in a form, or with sufficient additional
information, that permits [an assessment of] its reliability."
Parhat, 532 F.3d at 849. As we recently reiterated, "[t]he
government's evidence in Parhat was insufficient to enable
the court to assess its reliability." Khan, 2011 WL 3890843, at
*6. This hardly supports the proposition that courts must
assume government reports like the one at issue here are
accurate, especially given that the Supreme Court in
Boumediene specifically found that the process provided by
the Detainee Treatment Act was an inadequate substitute for
the writ of habeas corpus. See 553 U.S. at 792.
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
n""'C'l1'l'YI<=> that a government . one created in a
with multiple
., ...... n"'..n1-.1-·.an translators and
SECRET 19 SECRET
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." 553 U.S. at
783.
But the court's assault on Boumediene does not end with
its presumption of regUlarity. Not content with moving the
goal posts, the court calls the game in the government's favor.
Instead of remanding to give Latif an opportunity to rebut the
presumption of regularity, this appellate court engages in an
essentially de novo review of the factual record, providing its
own interpretations, its own narratives, even its own
arguments, see Maj. Op. at 20-52, and finds that "neither
internal flaws nor external record evidence rebuts that
presumption in this case," id. at 7. But see Pullman-Standard
v. Swint, 456 U.S. 273, 292 (1982) (where district court fact
"findings are infinn because of an erroneous view of the law,
a remand is the proper course"). To be sure, such a finding
would be appropriate if the record supported "only one
resolution of the factual issue." 456 U.S. at 292. But that
cannot be the case where, as here, the question of reliability
turns entirely on witness credibility, inferences drawn from
errors and inconsistencies in the Report, and the resolution of
conflicts in other record evidence, see infra Part II. Given the
\
court's conclusion that the presumption has not been rebutted,
remand may well be a "pointless exercise." Con. Op. at 1.
SECRET 20 SECRET
II.
Rather than adopting a presumption of regularity, I would
apply clear error review to the district court's findings of fact
just as we have consistently done throughout our Guantanamo
cases. See, e.g., Almerfedi, 2011 WL 2277607, at *3
(reviewing district court fact findings for clear error); AI-
Madhwani v. Obama, No. 10-5172, 2011 WL 2083932, at *3
(D.C. Cir. May 27,2011) (same); Salahi v. Obama, 625 F.3d
745, 750 (D.C. Cir. 2010) (same); Al Odah v. United States,
611 F.3d 8, 14-15 (D.C. Cir. 2010) (same); Bensayah, 610
F.3d at 723 (same); Barhoumi, 609 F.3d at 423-24 (same);
Awad v. Obama, 608 F.3d 1, 7 (D.C. Cir. 2010) (So long as
"the district court's account of the evidence is plausible in
light of the record viewed in its entirety, the court of appeals
may not reverse it" and, critical to this case, "[w]here there
are two permissible views of the evidence, the factfinder's
choice between them cannot be clearly erroneous. " (citations
omitted)). Under that standard, I would conclude that the
district court committed no clear error by finding that the
Report was insufficiently reliable; that it committed no clear
error by crediting Latif s account of what happened only
insofar as it needed to; and that it adequately addressed the
other record evidence.
A
The starting point, of course, is the Report itself. See
A wad, 608 F.3d at 6-7 (holding that the same clear error
standard applies to fact findings based on documentary
evidence and inferences drawn from that evidence). The
district court's primary concern about the Report related to
the circumstances under which it was produced,
circumstances that, according to the district court, increased
the likelihood that mistakes had been made. In particular, the
SECRET 21 SECRET
in the Report are redacted, the district court was
to evaluate the accuracy of
inquiring into the accuracy of the Report
In view of all these concerns, the district court It
especially troubling that neither the Report nor any of the
Government's other evidence " information
with which to confirm
"[F]actual errors" in the Report reinforced the district
rt' Id S • 'fi 11 h th '
lth ! R rt t t
SECRET 22 SECRET
Also troubling the district court was the lack of
"corroborating evidence for any of the incriminating
statements in the . at 26. As the district
The district court properly weighed the cumulative effect
of these subsidiary findings. See AI-Adahi, 613 F.3d at 1105-
06. . to the district those findin
"'.,"Ul.\J'U In an Incorrect
op . •
All of the concerns just described are obviously relevant
to evaluating the Report's accuracy. It goes without saying
that the circumstances under which the Report was produced
and the evidence, or lack of evidence, of care taken to avoid
SECRET 23 SECRET
mistakes when the Report was produced shed light on that
question. Likewise, it is undoubtedly probative of the
Report's reliability that it contains factual errors, for the
presence of a known error increases the likelihood that other
information in the Report is inaccurate as well. And of course,
it is also relevant that the government has offered no
independent corroboration for any of the Report's
incriminating facts. After about the
trustworthiness of has
we
ill cases "the [district] court
must take [such an] absence of corroboration into account in
assessing the reliability of the petitioner's out-of-court
statements." Al AIwi, 2011 WL 2937134, at *6 (emphasis
added).
Moreover, none of the subsidiary fact findings the district
court made about the Report itself were clearly erroneous. As
this court acknowledges, "the . court cited blems
with the its
inconceivable," id. at.,
Nonetheless, this court insists
that the
"']t is almost
information in
8ECRET 24 8ECRET
My colleagues' interpretation of the evidence is
undoubtedly plausible. Yet when one accounts for all of the
's various lems, the fact that admittedly true facts
with contested inculpatory ones also
supports plausible explanation, akin to what happens
in the children's game of telephone. In that game, one child
whispers a phrase to another, who in turn whispers it to a
third, and so on, until the last child announces what he or she
has heard. As anyone who has played well knows, the whole
point of the game is that what the final child hears is both
recognizably similar to the original statement and yet
amusingly transformed. Cf Carol D. Leonnig & Josh White,
An Ex-Member Calls Detainee Panels Unfair, WASH. POST,
June 23, 2007 (reporting former-Combatant Status Review
Tribunal member, Lieutenant Colonel Stephen Abraham, as
"equat[ing] the government hearsay presented [to the CSRTs]
about detainees with a game of telephone" (internal quotation
marks omitted)).
SECRET 25 SECRET
SECRET 26 SECRET
,moreover we no
Irn/ynn.nn- the redacted _
·nrha"l"h."'.... likewise
Given that the circumstances under which
the Report was produced increased the probability of
mistakes, given that the Report contains other "factual errors,"
and given that the government has failed to corroborate
the Report's incriminating information, Latif, slip op.
in of
this explanation is at least plausible-the only question or us
when reviewing fact findings, such as these, for clear error.
See A wad, 608 F.3d at 7 (reiterating that "[i]f the district
court's account of the evidence is plausible in light of the
record in its entirety, the court of appeals may not reverse it"
(quotation omitted)). But see Maj. Op. _ (conceding this
explanation is "possible," yet incorrect~serting that "the
relevant question is whether th[ e] hypothesis is likely").
B
The district court did not stop with the Report. It also
"consider[ed] the explanation of events Latif has offered"-
again in service of the critical question of whether the Report
was "sufficiently reliable." Latif, slip op. at 27. According to
SECRET 27 SECRET
Latif, with the help of a charitable worker, he left Yemen in
2001 seeking free medical treatment for the lingering effects
of a serious head injury suffered in a 1994 car accident.
Although the government challenges Latif s claim that he left
Yemen in 2001 seeking medical treatment, it never disputes
that "in 1994, [Latif] sustained head injuries as the result of a
car accident and [that] the Yemeni government paid for him
to receive treatment" in Jordan at that time. Id. at 5.
Besides his own narrative, Latif also offered
documentary evidence to corroborate his account. Three
documents are particularly noteworthy. The first, "a letter,
dated August 21, 1994, from a doctor at the Islamic Hospital
in Amman, Jordan," confirms "that Latif 'was admitted' on
July 9, 1994 'following a head injury.' " Id. at 23 (quoting
letter). The second, "a letter dated August 18, 1999 from
Yemen's Ministry of Public Health," states "that '[w]e
recommend that [Latif] return to the previous center outside
for more tests and therapeutic and surgical procedures at his
own expense.' " Id. (alterations in original) (quoting letter,
which also states that Latif "is hard of hearing" and that "a
wide circular hol[e] was detected in [Latifs] left eardrum").
And the third-the most . t-is Latif s intake form
out was
Into , the intake form states that Latif
was in possession of "medical papers" when seized traveling
from Afghanistan to Pakistan. Id. at 23 & n.12.
This documentary evidence, the district court found,
"corroborat[ ed]" Latif s "plausible" story. Id. at 26-27. The
district court also rej ected the government's contention that
Latif s eXCUlpatory account was a "cover story" and found the
government's "attack[s]" on the "credibility of [the] story ...
SECRET 28 SECRET
unconvincing." Id. at 26. This too was an obviously relevant
evidentiary consideration. A petitioner's version of events,
should he choose to provide one, can be relevant when
assessing the government's evidence. After all, the more
believable the petitioner's exculpatory account, the greater the
reason to doubt the government's inculpatory one. el, e.g.,
Al-Adahi, 613 F.3d at 1107 (weighing petitioner's "false
exculpatory statements" in the government's favor). Having
thus assessed Latifs story positively, and given that the story
contradicts incriminating information contained in the Report,
the district court relied on the story to support its finding that
the Report is "not sufficiently reliable." Latif, slip op. at 25.
Although agreeing that Latif s story is relevant, my
colleagues nonetheless conclude that by describing it as
"plausible" and "not incredible," the district court never
actually credited that account. But "reading the district court's
explanation in [such] a parsed manner that overlooks its
meaning in context" is inconsistent with clear error review.
United States v. Brockenborrugh, 575 F.3d 726, 741 (D.C.
Cir. 2009). Here is what the district court actually said about
Latif s story:
The Court makes this ruling [i.e., about the accuracy
of the Report] having taken into consideration the
explanation of events Latif has offered. Latif s story
is not without inconsistencies and unanswered
questions, but it is supported by corroborating
evidence provided by medical professionals and it is
not incredible. [The district court then rejected the
government's theory that Latif had told inconsistent
stories over the course of his detention and was
therefore telling a "cover story." The district court
reasoned that the government's theory was based on
just "two isolated statements," one of which "does
SECRET 29 SECRET
not contradict Latifs version of events." Finally, the
district court found the government's] other
arguments attacking the credibility of Latif s
story ... similarly unconvincing. The smaller
inconsistencies to which [the government] ha[s]
pointed may be no more than misstatements or
mistranslations; even if some details of Latifs story
have changed over time, for whatever reason, its
fundamentals have remained the same.
Latif, slip op. at 27-28. What else could the district court have
meant other than that it found Latif s account convincing
enough, plausible enough, consistent enough, and
corroborated enough to give it at least some weight against
the government's evidence? And as we have held, "[m]erely
because a particular piece of evidence is insufficient, standing
alone, to prove a particular point does not mean that the
evidence 'may be tossed aside and the next [piece of
evidence] may be evaluated as if the first did not exist.' "
Salahi, 625 F.3d at 753 (alteration in original) (quoting Al-
Adahi, 613 F.3d at 1105). After all, it is the government that
bears the burden to demonstrate the lawfulness of detention,
and here the district court concluded that the government had
failed to meet that burden because (1) "there is a serious
estion as to whether the [Report] accurately reflects_
ii " given (la) the circumstances under which 1t was
pro uced and (l b) the "factual errors" it contains; (2) "the
incriminating facts in the [Report] are not corroborated[;] and
[(3)] Latif has presented a plausible alternative story to
explain his travel." See Latif, slip op. at II It is in just this
circumstance-where doubts about the government's
evidence and confidence in the detainee's story combine with
other evidence to fatally undermine the government's case-
that a detainee may prevail even without the district court
needing to credit the detainee's story by a full preponderance
SECRET 30 SECRET
of the evidence. To require otherwise would, in effect,
inappropriately shift the burden of proof to Latif.
Given that the district court found Latif s story entitled to
at least some weight and given that such a finding could
properly guide its evaluation of the government's evidence,
the only remaining question for us is whether that finding was
clearly erroneous. It was not. As this court itself
acknowledges, Latifs story, on its own terms, is not
"intrinsic [ally] implausib[le]." Maj. Op. at 39. And that
observation is reinforced by corroborating evidence showing
that Latif needed to leave Yemen for medical care in 1994,
that Yemen's Ministry of Public Health recommended he do
so again in 1999, and that Latif had medical papers with him
when seized crossing into Pakistan. That a trip abroad for
medical care had been necessary, not once but twice, makes it
more likely that Latif would have needed to travel abroad for
medical care in 2001 as well. And the fact that Latif s
condition was still serious enough to require such a trip in
1999, five years after he was first injured, increases the odds
that the injury continued to be that serious two years later in
2001. Equally important, the most plausible reason for why
Latif would have had medical papers in his possession when
first seized is that his trip in fact had a medical purpose.
Attempting to cast doubt on the district court's favorable
assessment of Latif s account, this court insists that the
district court "toss [ed] . . . aside" inconsistencies in Latif s
account. [d. at 45; see also id. at 42-45. But the district court
did no such thing. It expressly recognized those
inconsistencies, Latif, slip op. at 24-25 (summarizing the
alleged inconsistencies); id. at 27 ("Latifs story is not without
inconsistencies and unanswered questions."), ultimately
finding the government's "attack[ on] the credibility of Latif s
story" based on those inconsistencies "unconvincing." Latif,
SECRET 31 SECRET
slip op. at 27. Particularly significant to the district court was
the fact that the "fundamentals [of Latif s story] have
remained the same." Id. As Latif points out, those
fundamentals-appearing in more than a dozen interro tion
Surnml'lf!'es and statements from
un
of any
In with al Qaida or the Taliban; his serious head
injury from a car accident in Yemen; his inability to pay for
the necessary medical treatment; and his expectation and hope
that Ibrahim Alawi would get him free medical care."
Appellee's Br. 57. Indeed, at least some in the government
apparently agree. The commanding officer of the Defense
Department's Criminal Investigative Task Force noted in a
June 16, 2004 memo that Latifs s t a t e m e n t s _
had "been relatively consistent." Ex. 80, M e =
Criminal Investigative Task Force to General Counsel,
Department of Defense (June 16, 2004). Moreover, before
making too much of smaller inconsistencies it is important to
remember that they appear not in verbatim transcripts
prepared by a court reporter with the aid of an audio or video
. but rather in
last of which
represents evidence in record of what •
actually. in each o f _ As we remarked in
another Guantanamo Ba~he task of resolving
discrepancies among the various accounts offered into
evidence is quintessentially a matter . . . for the district judge
sitting as the fact-finder." Al-Madhwani, 2011 WL 2083932,
at *5 (internal quotation marks omitted).
SECRET 32 SECRET
Rather than applying clear error review to the district
court's resolution of such discrepancies, this court suggests its
own story-a story not found by the district court, never
argued by the government, and based on its own review of the
raw evidence-about how
v.
(en banc) ("[D]istrict court factfindings receive
deference under the clearly erroneous standard or they must
be vacated. There is no de novo appellate review of
factfindings and no intermediate between de novo and clear
error, not even for findings the court of appeals may consider
sub-par.").
c
The government points to
evidence that, it believes, buttress its argument
is reliable. The district court considered all s eVl
Some items it found insufficient to outweigh its concerns
_ and its positive assessment of Latifs story.
~ailed to implicate Latif or prove the point the
government hoped to make. As a reviewing court, our job is
to determine only whether those assessments were clearly
erroneous. They were not.
First, consider the circumstances leading up to Latif s
seizure by Pakistani authorities-circumstances to which the
district court gave less weight than the government would
SECRET 33 SECRET
have liked. Latif left Kabul in November 2001 and then
traveled through _ before eventually arriving at the
Pakistani border ~akistani authorities detained him.
According to the government, this path mirrors that of Taliban
soldiers retreating from Kabul. Although not contending that
this evidence is dispositive, the government argues that
because Latif's admitted route is consistent with that of
Taliban soldiers it is a
helpful that the
Report's
Fair enough, but how helpful? If this route is commonly
used by innocent civilians, then the evidence is not that
helpful at all. To understand why, consider a simple
hypothetical. Suppose the government were to argue in a drug
case that the defendant drove north from Miami along 1-95, "a
known drug route." Familiar with 1-95, we would surely
respond that many thousands of non-drug traffickers take that
route as well. Given what we know about our own society, the
1-95 inference would be too weak even to mention. Cf
Almerfedi, 2011 WL 2277607, at *4 n.7 (noting that some
conduct such as possessing an AK-47 is so "commonplace in
Afghanistan [that it] does not meaningfully distinguish an al
Qaeda associate from an innocent civilian"). On the other
hand, if the alleged drug trafficker had driven along an
infrequently traveled country road, then a contention that that
road was "a known drug route" would carry more weight. The
burden of proof is on the government to demonstrate whether
travel on a particular route to the Pakistani border, when
considered in context, is more like the lonely country road
and thus worthy of consideration when it comes to
distinguishing between enemy combatants and innocent
civilians.
SECRET 34 SECRET
Based on nothing more than a few anecdotes, this court
suggests that Latif s route was akin to the country road. It
asserts that the details of Latifs post-Kabul travels are
"analogous" to those we found "strong[ly] suggest[ive]" of al
Qaida membership in Uthman. Maj. Op. at 47. But how
analogous are they really? Uthman was captured "in the
vicinity of Tora Bora" at a tilne when "most, if not all, of
those in the vicinity of Tora Bora ... were combatants."
Uthman, 637 F.3d at 404. By contrast, the record in this case
contains no evidence that Latif ever traveled through the Tora
Bora mo~ and the c. ity we know he did travel
through_ _-has over 160,000 residents of
whom were not combatants see
not a suspicious route,
but also was captured with a "small group" that included two
"confessed ... bodyguards for Osama bin Laden" and another
admitted Taliban fighter, all three of whom Uthman had
studied with at the Furqan Institute, "a religious school at
which other men were recruited to fight for Al Qaeda."
Uthman, 637 F.3d at 404-05 (internal quotation marks
omitted). One of the bodyguards "described the group as
'brothers' retreating from battle.' " Id. at 405. Here, Latif told
interrogators that his Afghan guide was the only person who
accompanied him to the Pakistani border, Ex. 25, Summary
Interrogation the evidence to
the ",",11,"".",,-,;r
district court did consider it, expressly acknowledging that
"Abu Khalud arranged travel for other detainees along the
SECRET 35 SECRET
same route Latif reportedly took to Afghanistan." Latif, slip
op. at 10. Given that the government failed to demonstrate
that route was towards the country road end of the 1-95-
country road continuum-i.e., that the evidence was
sufficiently probative-the district court committed no clear
error by failing to "factor[] [it] into [its] decision," Maj. Op. at
42.
Second, consider the government's argument that "Latif
was recruited by an al Qaeda member" in Yemen, a theory the
district court found the government had failed to prove. Latif,
slip op. at 25. To support its theory, the government pointed
to evidence allegedly showing that Latif s charitable
benefactor, Ibrahim Alawi, is actually an al Qaida facilitator
known as Abu Khalud, whose real name is Ibrahim Ba'alawi.
Some of this evidence could certainly have led a reasonable
factfinder to accept the government's interpretation, including
that "Ba'alawi" and "Alawi" have similar spellings and that
the route Latif took to Afghanistan at Ibrahim's urging was
the same path reportedly taken by other detainees who, unlike
Latif, admit to having taken that trip to fight alongside the
Taliban and some of whom have also admitted, again unlike
Latif, to being Abu Khalud-recruits. That evidence, however,
hardly forecloses the district court's contrary finding that the
government had failed to prove by a preponderance of the
evidence that Ibrahim Alawi was Abu Khalud. To repeat,
although we have treated evidence that a petitioner reached
Afghanistan along a "route similar to the paths of admitted al
Qaeda members now in U.S. custody" as a plus factor in
determining whether that petitioner was "part of' al Qaida,
Uthman, 637 F.3d at 405, we have never suggested nor has
the government shown that this particular path is so uniquely
associated with al Qaida recruits that a district court clearly
errs when it treats such evidence as more akin to traveling
along 1-95 than a lonely country road.
SECRET 36 SECRET
The record contains ample additional evidence that
supports the district court's finding. Latif introduced expert
declarations explaining that "Ba'alawi" and "Alawi" are
distinct Arabic names and that both are common in Yemen.
Latif, slip op. at 18-19. Notably, therefore, Latif's
interrogation summaries all refer to some variation of the
name Ibrahim Alawi but none include the "Ba," and none
mention Abu Khalud. By contrast, interrogation summaries
for seven of the eight detainees mentioning the al Qaida
facilitator named Abu Khalud refer either to "Abu Khalud" or
"Ibrahim Ba'alawi" but never "Ibrahim Alawi," id., and the
eighth, who apparently used the name "Alawi," is a detainee
this very district court, in a different case, found not credible
because his statements conflicted with those of several other
detainees, id. at 19 n.10 (citing Abdah v. Obama, 717 F. Supp.
2d 21, 35 (D.D.C. 2010)). But see Maj. Op. at 39-41
(ignoring the district court's adverse credibility finding about
that detainee). Moreover, Latif described Ibrahim to
interrogators as "skinny," with aj}!"bi beard" and as "30-40
yrs. old," as having two children , a boy, and.,
a girl, and as being from Ibb. Lati, s Ip op. at 19-20. By
contrast, other detainees described Abu Khalud as short, fat,
with a short beard and moustache, and around 27 years old,
with a visible injury on his face caused by a bullet injury
sustained in Bosnia, with one daughter named" and as
being from Ta'iz, not Ibb. Id. But see Maj. Op. at 50
(dismissing these differences because Latif's des . tions of
Ibrahim Alawi in interrogation summaries
. In light of this' rec
two
are permissible views of the
evidence," meaning that "the factfinder's choice between
[those two views] cannot be clearly erroneous." Awad, 608
F.3d at 7.
SECRET 37 SECRET
court also no s Innocent V~~J"""' .l""~.LV".l
.
not having his passport-that he "gave it to Ibrahim to use in
arranging his stay at a hospital." Id.
record evidence supports the district court's
is. At the most basic level as the district court
SECRET 38 SECRET
nonetheless accuses the district court of
evidence that
court
VU'~"L~~U.V.L~~.'F. t h e _
itconclu~
Finally, the district court's reliance on Latifs explanation
for not having his passport is plausible in light of other record
evidence about the practice of at least one hospital, the
Islamic Hospital in Jordan, of taking foreign patient's
passports "to guarantee that [those] patients will not leave the
country before settling their bills." Pet'r Trial Ex. No.7.
Moreover, although leaving behind one's passport with an al
Qaida operative at an al Qaida run guesthouse might suggest
al Qaida affiliation, see Al Alwi, 2011 WL 2937134, at *4,
SECRET 39 SECRET
such a scenario is several inferential steps removed from the
only relevant fact we know about Latif-that he did not have
his passport with him when seized. To be sure, a reasonable
factfinder might have interpreted this evidence differently.
Yet again, the record contains enough evidence to support
"two permissible views of the evidence," Awad, 608 F.3d at 7
(quotation omitted), meaning that "the factfinder's choice
between [those two views] cannot, [therefore,] be clearly
erroneous." Id.
D
The court groups many of its criticisms about the district
court's fact finding under the catch-all header of AI-Adahi.
According to my colleagues, the district court took an "unduly
atomized" approach to the evidence. Maj. Op. at 39. The
district court did no such thing.
Absent some affirmative indication to the contrary, we
"presum[e] that the district court knew and applied the law
correctly." United States v. Mauling, 557 F.3d 658, 668 (D.C
Cir. 2009). Such affirmative evidence of legal error was quite
obviously present in Al-Adahi, as the "fundamental mistake"
we identified in that district court's opinion makes clear:
AI-Adahi's ties to bin Laden "cannot prove" he was
part of AI-Qaida and this evidence therefore "must
not distract the Court." The fact that AI-Adahi
stayed at an al-Qaida guesthouse "is not in itself
sufficient to justify detention." AI-Adahi's
attendance at an al-Qaida training camp "is not
sufficient to carry the Government's burden of
showing he was a part of' al-Qaida.
SECRET 40 SECRET
AI-Adahi, 613 F.3d at 1105 (emphasis added) (quoting district
court opinion). By contrast, here the district court placed the
Report, which the government concedes represents its
"primary" piece of evidence, Appellants' Br. 10, and on
which the government admits its "case turned," Appellants'
Br. 5, at the center of its analysis. The district court devoted
two and a half pages to analyzing the Report and then another
fifteen pages to summarizing other evidence introduced by the
parties to prop it up or knock it down. Finally, the district
court examined the cumulative effect of various evidentiary
concerns on the Report's reliability. When read in its full
context, the district court's opinion suffers from nothing like
the flaws that we reviewed in AI-Adahi.
This court uses Al Adahi to tum the presumption of
district court lawfulness on its head. Rather than giving the
district court the benefit of the doubt, it seems to assume that
the district court considered the evidence in isolation and
ignored key facts. Take, for example, the contention that the
district court tossed aside and considered in isolation alleged
inconsistencies between statements attributed to Latif in
different interrogation reports. Maj. Op. at 43-45. This
argument fails to recognize the leeway we have afforded
district courts to resolve discrepancies among various
accounts in other Guantanamo cases. In A I-Madhwan i, we
found no error in the district court's decision to credit two
different detainees' interrogation summaries even though the
detainees' statements contradicted each other in certain
respects·, reasoning that the "task" of "resolving" such
discrepancies "quintessentially" belonged to the district court.
AI-Madhwani, 2011 WL 2083932 at *5. Yet the only
indication that the district court in that case had actually
resolved the relevant contradictions between the two reports is
its bald assertion that those reports are reliable; the
discrepancies are never mentioned, let alone analyzed. By
SECRET 41 SECRET
contrast, as this court concedes, the district court here
expressly noted that it had "taken into consideration the
explanation of events Latif has offered" in assessing the
Report and expressly acknowledged that Latifs story is not
without "inconsistencies and unanswered questions." Maj.
Op. at 42. The district court then specifically assessed the two
primary inconsistencies the government relied on, as my
colleagues implicitly acknowledge. Id. at 43-45. Finally, the
district court explained that any concern about "smaller
inconsistencies," most of which it had earlier summarized,
was outweighed by the.possibility that they had resulted from
translation or transcription errors and by the fact that the
"fundamentals [of Latifs story] have remained the same."
Latif, slip. op. at 27. For its part, this court reluctantly
recognizes all this as "a welcome step toward the holistic
approach to the evidence we called for in AI-Adahi." Maj. Op.
at 42-43. But it is in fact more than that. If the district court's
implicit resolution of discrepancies in Al-Madhwani was
adequate, then it follows a fortiori that so too was this district
court's far more explicit treatment. My colleagues
acknowledge that their approach is in tension with "the usual
practice" of "assum[ing] the [district] court considered all the
evidence," but nonetheless find this justified by the "unusual
posture of this case"-i.e., a he-said, she-said case involving
detainees at Guantanamo Bay. Id. at 50. But if we take
seriously the notion that district courts are better at finding
facts and determining credibility, then we should be all the
more eager to defer to their expertise when the stakes are high
and when the case comes down to he-said, she-said-that is,
when it rests entirely on credibility and how one interprets the
facts.
The only affirmative indication this court identifies
allegedly showing that the district court took an unduly
atomized approach to the evidence relates to the
SECRET 42 SECRET
circumstances of Latif s capture and to _
_ The court makes m~
~er, the district court employed language
similar to the language used at one point by the district court
in AI-Adahi-specifically that "the timing of [Latif s]
departure . . . is not sufficient to create an inference that he
was involved in fighting." Latif, slip op. at 27 (emphasis
added). The court, however, neglects to mention that this
sentence appears in the middle of a paragraph evaluating the
credibility of Latif s account, which itself appears in the
middle of an extended assessment of the combined impact of
multiple pieces of evidence on the Report's reliability. This
"pars[ing]" of the district court's words "overlook[s]" what
those words "mean[] in context," an approach that is, again,
inconsistent with clear error review. See Brockenborrugh, 575
F.3d at 741.
no convmcmg
district court should have considered evidence that it found
does not implicate Latif-unless, of course, that finding was
clearly erroneous, something they never claim. Suppose, for
example, that a witness in a burglary case testifies to having
seen a man with a similar build as the defendant walk away
from the site of the crime. If the factfinder concludes that the
person the witness saw was not the defendant, then surely the
factfinder can reasonably set aside the witnesses' testimony in
assessing whether the defendant was the burMar.too here.
So
Once the district court had determined that did not
implicate Latif, it was entirely proper for it to put t em aside
when evaluating the rest of the evidence.
The remainder of the court's Al Adahi critique rests
entirely on the claim that the district court "ignore [d] relevant
SECRET 43 SECRET
evidence." Maj. Op. at 38. Not so. The district court expressly
considered virtually all the evidence this court points to--
including every single item of evidence the government
claims is of . relevance. Lo,mn.are
id. at
compare aJ. . at s
from Kabul and sUbsewent seizure by Pakistani
authorities), with Latif, slip op. at , 25, 27 (discussing
same); compare Maj. Op. at 50-52 evidence that Latif's
benefactor, Ibrahim AI-Alawi, is in fact the Al Qaida
facilitator Abu Khalud), with Latif, slip op. at 17-21, 23-28
(discussing same). As for the claim that Latif may have (or
may not have) traveled across the Pakistani border with
Taliban-affiliated the district court's silence is
To determine, as this court apparently does, that an
experienced district court judge has totally ignored relevant
evidence and so committed legal error because his twenty-
seven page opinion omits mention of a handful of tertiary
items plucked from thousands of pages of record evidence not
SECRET 44 SECRET
only ignores the presumption of district court lawfulness, but
also imposes on that court a virtually impossible burden. As
the First Circuit put it, "[t]he district court could have written
a 200-page decision on this case, but the far more compact
assessment it made was entirely adequate under Rule 52(a)."
Addamax Corp. v. Open Software Foundation, Inc., 152 F.3d
48, 55 (lst Cir. 1998) ("[T]he district court was not required
to make findings on every detail, was not required to discuss
all of the evidence that supports each of the findings made,
and was not required to respond individually to each
evidentiary or factual contention made by the losing side.").
See also Schilling v. Schwitzer-Cummins Co., 142 F.2d 82, 84
(D.C. Cir. 1944) ("While counsel may be disappointed that
findings do not discuss propositions sincerely contended for,
that, alone, does not make them inadequate or suggest that
such propositions were not understood by the court. ");
Medtronic, Inc. v. Daig Corp., 789 F.2d 903, 906 (Fed Cir.
1986) ("We presume that a factfinder reviews all the evidence
presented unless he explicitly expresses otherwise."); cf
Puerto Rico Maritime Shipping Authority v. Federal Maritime
Comm 'n, 678 F.2d 327, 351 (D.C. Cir. 1982) ("It is frivolous
to contend that the Commission did not consider the evidence
because it did not catalogue every jot and tittle of testimony.
Nothing is gained by a laundry-list recital of all evidence on
the record supporting each view on every issue.").
The district court's opinion is by no means perfect. But
clear error review demands a good deal less than perfection.
See Microsoft, 253 F.3d at 118. That said, had the district
court otherwise committed legal error or made some other
mistake requiring remand, then I would have asked it to
clarify whether it had indeed considered this evidence
holistically. See, e.g., Salahi, 625 F.3d at 753 (noting that "the
district court generally" considered all the evidence together
but that "its consideration of certain pieces of evidence may
SECRET 45 SECRET
have been unduly atomized" and that "since we [were]
remanding" we would encourage the district court to clarify
(emphasis added)). But nothing in our case law requires, nor
would I now hold, that the mere fact that a district court that
obviously and carefully considered the entire record failed to
mention a couple items of tertiary importance reflects undue
atomization of the evidence.
III.
For the foregoing reasons, I would affirm the grant of the
writ of habeas corpus.