The Brennan Center filed an amicus brief urging the U.S. Supreme Court to hear Latif v. Obama, a case that tests the bite in the Supreme Court’s 2008 promise that Guantanamo detainees have a constitutional right to challenge their detentions in court. The brief, which was filed on behalf of former intelligence professionals and scholars of evidence and criminal procedure, discusses the inapplicability of the “presumption of regularity,” essentially a presumption of trustworthiness, to early-stage intelligence.
Plaintiff Adnan Latif is a Yemeni citizen who, in his account, left Yemen for Pakistan in August 2001 and then went to Afghanistan, searching for charitable medical assistance. Latif spent several fruitless months waiting in Kabul for medical care, finally fleeing the city in November 2001 to escape Taliban forces who were rumored to be executing Arabs. After he crossed into Pakistan in an attempt to make his way back to Yemen, Pakistani police arrested him and turned him over to American authorities (who had promised generous bounties for captures). On the basis of questionable information reflected in a “battlefield screening interview,” Latif was sent to Guantanamo in early 2002, where he has languished ever since.
In theory, Latif is entitled to recourse in the courts. Under the Authorization for Use of Military Force, passed by Congress shortly after September 11, the President may detain members of Al Qaeda or the Taliban as enemy combatants. In 2008, however, the Supreme Court ruled in Boumediene v. Bush that Guantanamo detainees have a constitutional right to challenge their detention in federal court by filing a writ of habeas corpus, obligating the government to prove that the detainee is in fact an enemy combatant. Accordingly, Latif filed a lawsuit in the U.S. District Court for the District of Columbia seeking release from indefinite detention in Guantanamo.
The government relies primarily on one classified, anonymous, and highly redacted intelligence report to justify Latif’s continued detention. The report apparently contains a statement from Latif himself and purports to shows that rather than staying in Kabul waiting for medical care, he took up arms after September 11 and fought with the Taliban. Latif argues, however, that the report and its transcription of his statement are not accurate. Although the materials in the case are heavily redacted, the opinion and other publicly available information suggest that the evidence in the report was not corroborated; that the circumstances underlying its production – including the general chaos of war and the involvement of unidentified and possibly underqualified interviewers and translators – call its reliability into question; and that some of the information may even have been inadvertently transposed from another detainee’s file. Indeed, as the court noted, the government itself had not previously relied on this report, instead recommending in 2007 that Latif be transferred out of Guantanamo, a proposal that was never carried out.
In 2010, faced with this dubious evidence, the federal district court granted Latif’s petition for habeas corpus. In a heavily redacted opinion, Judge Henry Kennedy, Jr. concluded that because much of the government’s incriminating evidence was not corroborated and because Latif had presented a plausible alternative story for his travels, the government had failed to prove that Latif was an enemy combatant under the AUMF.
The government appealed the decision to the U.S. Court of Appeals for the District of Columbia, which overturned the grant of habeas corpus in a 2–1 opinion. The majority described the government’s keystone report as having been “prepared in stressful and chaotic conditions, filtered through interpreters, subject to transcription errors, and heavily redacted for national security purposes.” Judge David Tatel added in dissent that the report contained factual errors, was “drafted by unidentified translators and scriveners of unknown quality,” and was “produced in the fog of war, by a clandestine method that we know almost nothing about.” Nevertheless, the appeals court majority granted the government’s request to apply a “presumption of regularity” to its intelligence reports. As the majority explained it, the presumption of regularity “permits a court to conclude that the statements in a government record were actually made,” unless the detainee is affirmatively able to overcome the presumption by providing evidence of the report’s unreliability. The two-judge majority ruled that Latif had failed to rebut the presumption and remanded the case to the district court with instructions to reconsider the case.
The Brennan Center’s brief to the Supreme Court argues that the presumption of regularity has no place in the realm of early-stage intelligence. As the brief explains, the presumption of regularity is applied only to documents that are “produced by procedures that confer confidence in the document’s reliability and trustworthiness,” such as records of guilty pleas or tax documents. Often these documents are supported by testimony describing the circumstances under which they were produced, giving the court additional assurances about their soundness. By contrast, an intelligence report – particularly one produced in the kinds of circumstances described by the court of appeals – must be “weighed and evaluated based on other information to ascertain its reliability.” The fact that the interviewer and translator are unidentified makes it impossible for the detainee or the court to examine them about the circumstances of the document’s creation. In addition, errors in transcription and translation and the risk of misidentification are endemic to any human intelligence report created in overseas conflict zones, particularly in the chaotic period shortly after September 11. As a former CIA operations officer warned, after 9/11, “the intelligence community tolerated – and, to a large extent, tacitly encouraged – the distribution of unreliable, unverified, faulty, and even erroneous intelligence reports.” The court of appeals’ application of the presumption of regularity therefore dangerously misconceives the nature of early-stage intelligence and the rigorous testing to which it is put by the intelligence community.
Moreover, the report here contained Latif’s own statements, and Latif challenged only the “reliability” of the report – that is, whether it accurately conveyed what he said. Accordingly, as the appeals court majority accurately observed, a judgment affirming the reliability of the report also “proves the lawfulness of Latif’s detention,” thereby relieving the government of the need to present any further proof that Latif was permissibly detained.
Finally, the brief notes that judges for the federal district court in D.C., the court with the most experience with Guantanamo detainee cases, have regularly engaged in close analysis of the government’s evidence, including intelligence documents. Because all evidence, including hearsay, is admissible in Guantanamo habeas proceedings, these judges have recognized that it is particularly important to critically study the documents before them.
Latif thus presents an ideal opportunity for the Supreme Court to declare that it was serious when it said in Boumediene that a court considering a detainee’s habeas corpus petition “must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive’s power to detain.” Allowing the D.C. appeals court’s decision to stand would undermine Boumediene’s promise of genuine review, divest the courts of their vital role in the process, and permanently call the game in the government’s favor.