Continuing its caustic criticism of the Supreme Court’s most important ruling on the rights of Guantanamo detainees, the D.C. Circuit Court has given the Pentagon a significant new legal advantage that will bolster its chances of keeping prisoners at the military prison in Cuba. A divided three-judge Circuit panel ruled that government intelligence reports will be treated routinely as if they are reliable, even though the data they contain was obtained under questionable circumstances in or near foreign battle zones. The heavily redacted decision was made in October, but was released only last Wednesday; it took that long for court security officers to edit out material they considered secret.

What the Pentagon achieved in this case was something it had been pursuing for all of the three years that lower court judges have been working to implement the Supreme Court’s June 2008 ruling in Boumediene v. Bush, but it was a procedure that District Court judges had refused unanimously to approve. It involved the esoteric but vital question of whether government evidence would be given a “presumption of regularity” in every Guantanamo case, making the data decisive unless detainees could disprove it.

In the Boumediene decision, the Justices by a 5-4 vote ruled for the first time that Guantanamo detainees have a constitutional right to challenge their continued confinement. Unable simply to ignore that ruling, but strongly objecting to it, conservative judges in recurrent majorities on the D.C. Circuit have engaged in sustained criticism of the decision as interfering too greatly with the Pentagon’s authority to carry on the war against terrorism. The Supreme Court has yet to react, since it has opted for the past three years to leave intact the Circuit Court rulings brought to it, each narrowing the scope of Boumediene.

The lower court’s verbal attacks on Boumediene continued in the opinion released Wednesday in Latif v. Obama, et al. (Circuit docket 10-5319), overturning a federal judge’s order to release a 35-year-old Yemeni national who has been at Guantanamo almost ten years.

Circuit Judge Janice Rogers Brown, writing for herself and Circuit Judge Karen LeCraft Henderson, denounced the Boumediene ruling, saying it had “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.” That echoed complaints by government lawyers — and by the Court’s critics in Congress — that intelligence-gathering has been hampered by review by civilian courts of the data gathered, as they weighed the government’s authority to detain individuals suspected of terrorism.

Judge Brown went further, saying that the Supreme Court majority was not persuaded by those costs to the military effort, and she contended that the logic of Boumediene was that the government should “take no prisoners.” She also said, without elaboration, that the Boumediene ruling was based upon “airy suppositions that caused great difficulty for the Executive and the courts.” She quoted from the dissenting Justices’ opinion, and commented that “luckily,” the category of Guantanamo cases was shrinking, because the ranks of detainees there “will not be replenished.” (The Obama Administration has not transferred any new detainees to Guantanamo, and has said repeatedly it wants to close the prison there, but that effort has been thwarted repeatedly in Congress.)

The ruling overturned a decision in August 2010 by District Judge Henry H. Kennedy, Jr., in favor of Adnan Farhan Abdul Latif, largely because the judge found government intelligence reports to be unreliable. What is in those reports was largely obscured, both in Judge Kennedy’s 28-page opinion, and in the 112 combined pages of opinions by the Circuit Court in the case. That is because page after page in the opinions was blacked out by security officers working within the courts.

Judge Brown’s opinion, for example, on page 5 said “At the heart of the Government’s case is,” but then the explanation is blacked out. At the point where her opinion began discussing the evidence in the case, the next ten pages — except for one footnote — were totally blacked out. Fully one-fourth of the text of her 53-page opinion was erased before its public release.

Circuit Judge David S. Tatel, one of the most liberal members of the D.C. Circuit, protested with some of the strongest language published in the few Guantanamo dissents that have been issued in Guantanamo cases in that court. His dissent was aimed, in considerable part, at the majority’s embrace of the “presumption of regularity” for the government intelligence data used against detainee Latif.

Judge Tatel said that he feared that this result “in practice” came “perilously close to suggesting that whatever the government says must be treated as true…In that world, it is hard to see what is left of the Supreme Court’s command in Boumediene that habeas review [of detention] be ‘meaningful.’ ”

The “presumption of regularity” concept that divided the panel is a standard that courts sometimes use to give credit to evidence presented by the government. It starts from a basic premise, rooted in the separation of powers, that courts should accept that government executive officials properly perform their duties, until the contrary is proven. From that view, courts assign to government reports filed in court the “presumption” that they describe accurately what was observed by the preparer of the report, thus treating the report as a generally reliable account of what was said or what happened. The contents of the reports — the facts that they recount — are not presumed to be true just because the report itself is deemed a reliable account of the process.

In ordering Latif’s release in this case last year, District Judge Kennedy had refused to adopt the “presumption,’ just as all other District judges in Guantanamo cases have done. Judge Brown suggested in her opinion that District judges may have been confused about the doctrine, confusing it with a presumption — which they would not accept — that virtually everything in a government report was true. The presumption, she wrote, is only about whether the method used to gather the evidence was accurately recounted in such a report, so that it could be treated as a reliable account.

Judge Brown said that, while the Circuit Court had hinted previously that such a presumption might be accorded to government evidence in Guantanamo cases, it had never explicitly ruled that way.

Both the majority opinion by Judge Brown and the dissenting opinion by Judge Tatel said that the government’s case against Latif was based primarily upon a single official report, which the opinions sometimes hint was a compilation of reports of military or other agency interrogation of detainees or of people with whom they were believed to have associated. And both of the opinions agreed that — as Judge Brown put it — the report was “prepared in stressful and chaotic conditions, filtered through interpreters, subject to transcription errors, and heavily redacted for national security purposes.”

Judge Tatel, though, went somewhat further, criticizing the report as “intelligence reports gathered in the fog of war,” and arguing that it was it was prepared “by a clandestine method that we know almost nothing about.” Usually, the dissenting judge said, the “presumption of regularity” is given to government reports prepared in a process that is “familiar, transparent, generally understood as reliable, or accessible” — as, for example, a court clerk’s docket notes on what transpired in open court.

Judge Brown said that the presumption was not confined to those situations, but her strongest argument in favor of acknowledging it in Guantanamo habeas cases was that the evidence was gathered by intelligence methods that were beyond the competence of the courts to evaluate. “The horizontal separation of powers,” she wrote, “justifies a presumption in favor of official Executive branch records in Guantanamo habeas proceedings….Courts have no special expertise in evaluating the nature or reliability of the Executive branch’s wartime records. For that, it is appropriate to defer to Executive branch expertise.”

The majority and dissenting opinions disagreed on how to interpret the Supreme Court’s first ruling in a Guantanamo habeas case, the decision in 2004 in Hamdi v. Rumsfeld. Judge Brown interpreted that ruling as endorsing a presumption in favor of government evidence, allowing courts in Guantanamo cases to accept such evidence as reliable, and put the burden of proof of detainees to rebut it. Judge Tatel said that the Court had not endorsed the use of a presumption that would accept that the government’s evidence was “credible and accurate.” Whether the evidence in this case is credible and accurate, Tatel said, is the issue.

The Circuit Court did not make a final decision that Latif could be continued in detention, on the government’s theory that he was a “part of” the al Qaeda terrorist network when he was captured in Pakistan near the Afghanistan border in late 2001.

Judge Brown concluded that the case would return to District Court for further review of whether Latif had offered enough evidence to offset the presumption. Judge Henderson, in her separate opinion, said that the court should simply reject Latif’s challenge at this point, finding it too weak to overcome the government’s report. Judge Tatel would have upheld Judge Kennedy’s release order. As a result of this division, the practical result will be that the case will go back to Judge Kennedy, unless further review is granted in the full Circuit Court or in the Supreme Court.

Recommended Citation: Lyle Denniston, Major win for U.S. on detainees, SCOTUSblog (Nov. 12, 2011, 12:38 PM), https://www.scotusblog.com/2011/11/major-win-for-u-s-on-detainees/