by Billy Corriher
In the midst of Congress’ continuing debate over Guantanamo detainees, the DC Circuit issued a sharply divided ruling in which it denied one detainee a writ of Habeas Corpus. In Latif v. Obama, the majority overturned the district court’s decision and held that the district court should have shown greater deference to the government’s evidence. The court has been criticized for substituting its judgments on the weight and credibility of the evidence for the trial court’s findings.
The DC Circuit said the lower court should have given an intelligence report proffered by the government a “presumption of regularity.” The court had previously applied this presumption to routine government documents. The court said “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.” The dissenting judge criticized the majority for differing from recent cases in which the court assessed government reports for accuracy or reliability, rather than starting its analysis from a rebuttable presumption of accuracy.
The most controversial aspect of Latif may be the court’s holding that this presumption was overcome. The dissent stated, “Not content with moving the goal posts, the court calls the game in the government’s favor.” The dissent suggests that the majority eschewed the “clearly erroneous” standard of review for a trial court’s determinations on factual issues. The dissent said, “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 . . . rests entirely on credibility and how one interprets the facts.” Though it ostensibly ruled on the evidentiary issue, the majority’s opinion is almost entirely devoted to detailing it’s disagreement with the trial court’s weighing of the facts.
Both the majority and dissent acknowledge that the Supreme Court’s Guantanamo cases permit lower courts to create some rebuttable presumptions in these cases, but it is not clear how courts should accommodate the practical problems with obtaining evidence in these cases. Referring to Boumediene, the majority said the decision’s “airy suppositions have caused great difficulty for the Executive and the courts.” The majority continues, “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.” The dissent suggests that the majority eviscerates Boumediene‘s requirement that habeas review be “meaningful.”
Regardless of whether Latif is true to Supreme Court precedent, it is clear that after years of trying to clear up the legal confusion at Guantanamo Bay, much remains murky. The majority suggests that the number of Guantanamo cases will decline because President Obama is not sending any more detainees there, but Congress is considering measures to keep terrorism suspects at Guantanamo and away from ordinary federal courts. Given this uncertainty, let’s hope the Supreme Court grants cert in Latif to decide whether the appellate court afforded enough deference to the trial court’s weighing of the evidence.