Bfi8MT 8£21&1
~nite.b ~tates aIourt of J\ppeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 15, 2011 Decided October 14,2011
Reissued April 27, 2012
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
~vidence is one we have rejected. See id. We remand so the
district court can evaluate Latifs credibility as needed in light
of the totality of the evidence, inchiding newly available
evidence as appropriate.
I
Latif is a Yemeni national who was apprehended near
Pakistan's Afghan border in late 2001 and transferred to
Guantanamo Bay in January 2002. The parties agree that Latif
commenced his travels at the suggestion of a man named
Ibrahim and that Latif set off from Yemen to Quetta,
Pakistan, and from there to Kabul, Afghanistan. The parties
also agree that afte~ returning to Pakistan, Latif was seized by
the Pakistani military without a passport. What the parties
disagree about is the nature of Latifs trip. The Government
says Latif was recruited and trained by the Taliban. and then
was stationed in Kabul on the front line against the Northern
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Alliance. Latif says he left Yemen in search of medical care
and has never had anything to do with the Taliban.
Acc;ordlmg to the story attributed to Latif in the
Report, Ibrahim AI-Alawi began recruiting Latif for jihad in
2000. At Ibrahim's urging, Latif left home in early August
2001 and travelled to Afghanistan via Sana' a, Yemen;
Karachi, Pakistan; and Quetta, Pakistan. Latif met Ibrahim at
the Grand Mosque in Kandahar, Afghanistan, and stayed with
him and his family for three days. From Kandahar, Ibrahim
took Latif to the Talibail. The Taliban gave him weapons
training and stationed him on the front line against the
Northern Alliance, north of Kabul, under the command of
Afghan leader Abu Fazl. While there, Latif reportedly "saw a
lot of people killed during the bombings, but never fired a
shot." While with the Taliban, Latif met Abu Hudayfa of
Kuwait, Abu Hafs of Saudi Arabia, and Abu Bakr of the
United Arab Emirates or Bahrain. Latif retreated to Pakistan
via lalalabad with fleeing Arabs, guided by an Afghan named
Taqi Allah.
Among other un-redacted identifying details, the Report
indicates that Latif's mother's name is Muna, that he lived in
the village of 'Udayn in Ibb, Yemen, and that his only prior
trip o.ut of that country was to Jordan with a ~
1"r,,"~lt........c>nt of an injury to his h a n d . " _
In the district court, the Government did not
produce the notes· on which this Report was based. The
Government now claims to have located the' notes, which it
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says confirm the Report. Since this case was briefed, those
notes have been disclosed to Latifs counsel in some form.
Latif does not deny being interviewed
Nor does he allege his statements were
coerced or otherwIse involuntary. But Lati~
tements were misunderstood or, alternatively,_
were misattributed to him. In a
declaration filed with the district coUrt in 2009, Latif denies
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.8.-
. supported forces he had been told were advancing from
northern Afghanistan.
The district court granted Latifs habeas petitIOn
following briefing and a hearing in which Latif dec1ined to
testify. Abdah v. Obama (Latif), 2010 U.S. Dist. LEXIS
83596 (D.D.C. July 21,2010). Although it did not "disregard"
the Report entirely, slip op. at 26, the district court concluded
it could not "creqit that information because there is serious
question.as to whether the [Report] accurately reflects Latifs
words, the incriminating facts in the [Report] are not
corroborated, and Latif has presented a plausible alternative
story to explain his travel." Id.
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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 II n.4; Al-Bihani v. Obama, 590 F.3d 866, 878 &
nA (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.
At the heart of the Government's case' is the Report in
which Latif reportedly admitted being recruited for jihad,
receiving weapons training from the Taliban, and serving on
the front line with other Taliban troops. Latirs whole defense
is that this official government record is unreliable-in other
words, that the Government botched it. Latif his
interro
so summary
no to what he actually said. LatiCs case turns
on this claim, because if the Report is an accurate summary of
what Latif told his interrogators, then his detention is lawful.
On this we all agree.Latif, 2010 U.S. Dist. LEXIS 83596, slip
op. at 26; accord Dissenting Op. at 2-3. The district court says
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it did not altogether disregard the Government's evidence,
slip op. at 26, and for good reason: the Report has more than
sufficient indicia of reliability to meet the Government's
"minimum threshold of persuasiveness." Almer/edi, - F.3d
- , 2011 U.S. App. LEXIS 11696~ at *13.
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 Latirs detention is legal. ld. 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. CiL 2007). The presumption applies to
government-produced documents no less than to other official
acts. See Riggs Nat 'I Corp. v. Comm'r, 295 F.3d 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
presumption can be applied in Guantanamo cases-at least
not to interrogation reports prepared in stressful and chaotic
conditions, ~ filtered through interpreters, subject to
transcription errors, and heavily redacted for national security
purposes.
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Since the problems Latif cites are typical of Guantanamo
detainees' interrogation reports, the rule he proposes would
subject all such documents 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 issu~ 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, 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
persuasi ve 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 s~feguards, 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 fonnulate 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
evid~ntiary 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
RE"i'NOLDS, The Emerging Law of Detention 2.0:
Guantanamo Habeas Cases as Lawmaking, at 52-53 rm. 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 p~esent 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 ~ases 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 Governmenfs 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 s'ource'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 infonnatiol1 is unreliable because it resulted
from harsh interrogation techniques, multiple levels of
hearsay, or unknown sources.
This case presents a different question because Latifs
sole challenge is to the accuracy of the Government's
summary of his. own words. When the detainee's challenge is
to the evidence-gathering 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)(l); see Al-Bihani, 590 FJd at
878. And after a state court conviction becomes fmal~ it is
subject to a "presumption of regularity," such that "[iJf 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. Mara,
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 govenunent 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");
Thomp~on 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 proc~dural 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 common 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 FJd 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 presumption of regularity. See cases cit~
note 2. Thanks to the explanatory declarations _
_ which we discuss below, see infra at 21-22, we
know far 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
umeliable. J
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." ld. 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 courf s discretion,
when appropriate, to adopt a rebuttable presumption in favor
of the accuracy of the governmenfs evidence." ld. 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
) When Latifs first interrogation took place and the Report
was prepared, the Government had no expectation that its
intelligence would be used in litigation. Instead, the Government
was seeking accurate, actionable intelligence to protect the country
from inuninent 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 Al-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(ll) (July 29, 2004»). We
reversed the Tribupal' 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 "[iJf a Tribunal cannot assess the reliability of
the government's evidence, then the 'rebuttable' presumption
becomes effectively irrebuttable." Jd. 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 FJd 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 FJd 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
affinned 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 th~ accuracy or authenticity of the
government's evidence"). True, the Government's brief
interpreted the criminal cases on which Barhoumi 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." ld. 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." ld. 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 infere':lces
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 ['hannless 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-AppeJIees 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 p{esumption 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
F3d at 849). That fear is unfounded. Again, the presumption
of regularity, if not rebutted, only pennits 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 ~e.
And while the presumption applies to government records, it
does not apply only to the governmenCs evidence. If a
detainee introduces a government 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 p'~esumption 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 appeaI. 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 t Br.
30 (quoting United States v. Chemical Found., Inc., 272 U.S. 1, 14-
the Government that the expert descriptions II
"should have been
considered in light of the general presumption that government
officials are properly carrying out their duties." Id. Developing this
argument by analogy, the ~mment urged that "the factors
supporting [the] accuracy" o~screening interview reports are
"even stronger than in the immigration context" in which a border
agent "cannot be presumed to be ... other than 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 Latifs detention, we can only uphold the
district court's grant of habeas if Latif has rebutted the
Government's evidence with more convincing evidence of his
own. s Viewed together, both the internal flaws Latif identifies
in the Report and the other evidence he uses to attack its
reliability fail 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.
S 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 FJd at 21 (tax), to "clear and convincing evidence," Riggins v.
Norris, 238 FJd 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 FJd 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.
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We begin our rebuttal analysis with the Report itself,
because Latif alleges that intrinsic flaws in the document
undermine its reliability. The Report bears indication of
bein what the Government it .
orne
s IntervIew IS redacted, including infonnation about.
_ t h e name of a friend who. 'ed him to
~edical tre2ltmlent.
Despite its redactions, the Report permits the assessment
of reliability we demanded in Parhat. 532 F.3d at 847. The
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These- general descriptions seem to be consistent with the
specific document at issue in this case. Critically, the Report
purports to summarize an actual interview with Latif
himself-not the anonymous hearsay we rejected in Parhat.
Cf id. at 846-47. 6 Rather than "bottom-line assertions," id. at
847, the Report tells a story that a court can evaluate for
internal consistency, and for consistency with other evidence.
And the Report includes enough biographical information to
support an inference that Latif was indeed . of the
interview. Although the Report bears
6 The dissent repeats a criticism of the Report that we have
already rejected for similar documents-namely, that it is
inherently unreliable because it "contain[s] multiple layers of
hearsay." Dissenting Gp. at 9. As we clarified in Al-Bihani,
however, an interrogation report involves just one level of
hearsay-that of the interrogator. 590 F.3d at 879. Like the diary
translated in Barhoumi, and unlike the anonymous hearsay in
Parhat, Latirs statements to the interrogator are "the underlying
reporting on which the government's assertions are founded."
Barhoumi, 609 F.3d at 428. The act of translation "does not affect
[an interrogation report's] status." Al-Bihani, 590 F.3d at 879; see
Barhoumi, 609 F.3d 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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In his attack on the reliab~of the Government's
evidence, Latif relies heavily on_apparent transcription
errors in the Report-an ambiguous reference to the' .
that necessitated his . to Jordan in 1
purporting not
C'r~l'r'3,.rt the Report entirely, the district court reasoned
support infer~nce that translation,
rC:SILllLt;U III an incorrect summary of Latifs words."
Latif, 2010 U.S. Dist. LEXIS 83596, slip op. at 26. The
court's inference was insufficient to overcome the
presumption of regularity. Neither of these alleged flaws in
the Report proves the separate statements cormecting Latif to
the Taliban are fundamentally inaccurate.
Latif argues that the Report misstates whose injury was
the reason for the trip to Jordan. Latifs medical records
confirm that Yemen's Ministry of Defense paid for him to
receive medical treatment in Jordan for a head injury. The
Report says, "[Latifs] only previous travel was to Jordan,
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accompanying . . . a friend injured during the Yemeni civil
war for medical treatment of an injury to his h a n d ! ' _
(emphasis added). Latif reads "his" as a
reference to his friend and points to this as proof that the
Report is unreliable. But the pronoun is ambiguous-it lacks
a clear antecedent. The district court seems to have been
persuaded by both interpretations, faulting the Report for
referring to the friend's injury, not Latifs; but also assuming
the Report referred to Latirs hand, not his friend's. See Latif,
2010 U.S. Dist. LEXIS 83596, slip op. at 15. Whichever
reading of the ambiguous sentence is correct, any mistake, if
there is one, is consistent with a minor error in transcription .
or pronoun usage. A note-taker in the field could easily have
misheard the translator and written "hand" instead of the
similar-sounding monosyllable "head." We need not consider
whether the district court's speculation was clearly erroneous,
because neither a grammatical ambiguity nor a tangential
transcription error is the sort of fundamental flaw sufficient to
overcome the presumption of regularity. See Riggs Nat 'I, 295
F .3d at 21-22 (holding "clerical errors" do not overcome the
presumption of regularity that attaches to a foreign
government's tax receipt); see also Porter v. Singietary, 49
F.3d 1483, 1488 (11th Cir. 1995) (holding on habeas review
that a "clerical error" "feU far short of overcoming the
presumption of regularity" in a district court's criminal
sentence).
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Neither of the flaws Latif points to rebuts the
presumption of regularity. At worst, they suggest the presence
of minor transcription errors. But tangential "clerical errors"
do not render a government document unreliable. See Riggs
Nat'l, 295 F.3d at 21-22 (holding that "an inconsistency that
merely calls into question the validity of an official
document" does not rebut the presumption of regularity). It is
almost inconceivable that a similar mistake could have
resulted in the level of inculpatory detail contained in the rest
of the Report. Consider Latifs reported admissions that (1)
'" Alawi talked about jihad" with Latif, (2) '" Alawi took him
to the Taliban," (3) the Taliban "gave him weapons training,"
(4) the Taliban "put him on the front line facing the Northern
Alliance north of Kabul," and (5) "[h]e remained there, under
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the command of Afghan leader Abu Fazl until Taliban troops
retreated and Kabul fell.'" What
series of innocent' statements could possibly have been so
badly corrupted, whether by misinterpretation or
mistranscription? Latif does not suggest malapropism.
The dissent suggests an elaborate game of telephone
between Latif, a translator, a note-taker, and a report-writer
might have transmogrified hypothetical, innocent comments
about a charity worker, an Islamic Center, an imam, and three
religious teachers into the Report's inculpatory statements
about a jihadi recruiter, a war-zone tour of duty, a Taliban
conunander, and three Taliban fighters. Dissenting Op. at 24-
26. But as most children would tell you~ any good game of
telephone requires more than four participants to produce a
result dramatically different from the starting phrase. The
dissent also fails to account for Latifs incriminating
statements about being escorted to the Taliban and receiving
weapons training, and does not explain why, if these
inculpatory statements were produced by government agents
filling gaps in their comprehension "with what [they]
expected to hear," id. at 25, those agents would invent the
counterintuitive claim that Latif "never fired a sh~
his time on the front lines with the T a l i b a n . _
It may be possible that the Report's
incriminating admissions were all recorded by mistake while
more innocent details, like the name of Latirs mother, his
hometown, and the route he traveled, were transcribed
accurately., But the relevant question is whether that
hypothesis is likely. See A I-Ada hi, 613 F.3d at 1110.
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The quantum of incriminating detail in the Report could
hardly be produced by good-faith mistake, and we will not
infer bad-faith fabrication absent any evidence to that effect.
The inconsistencies in the Report may suggest a document
produced on the field by imperfect translators or transcribers,
but they do not prove the Report's description of Latirs
incriminating statements is fundamentally unreliable.
2
"[T]he reliability of evidence can be determined not only
by looking at the evidence alone but, alternatively, by
considering sufficient additional information permitting the
faCtfinder to assess its reliability." Bensayah v. Obama, 610
F.3d 718, 725-26 (D.C. Cir. 2010). The only piece of
extrinsic evidence the district court relied on does nothing to
weaken the presumption of regularity. The district court
found Latif was captured with medical records in his
possession, based on a government document's statement to
that effect.· The record contains a medical benefits referral
from Yemen's Ministry of Defense, a "medical report" from a
Jordanian Hospital confirming that Latif was admitted in
1994 for a "head injury," and a report from Yemen's Ministry
of Public Health recommending in 1999 that Latif pursue
further treatment at his own expense. This evidence
corroborates Latirs assertions about his medical condition-
and incidentally corroborates the Report's description of his
medical trip to Jordan-but it does nothing to undermine the
reliability of the Report. The Government is tasked with
proving Latif was part of the Taliban or otherwise
detainable-not disproving Latif s asserted medical
condition. There' is no inconsistency between Latirs claim
that Ibrahim promised him medical treatment and the
Report's statement that Ibrahim recruited him for jihad. Both
may be true. For example, Ibrahim could have promised Latif
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the medical treatment he needed to induce him join the
Taliban.
Such a recruiting tactic (or cover story) would fit the
modus operandi of the man who recruited many of the
detainees whose. interrogation reports appear in the record.
One man reported that he
was recruited by Ibrahim [Balawi] to travel to
[Afghanistan] to search for a wife and job.
Ibrahim told him if he traveled to
[Afghanistan] he would be able to find a bride
and the Taliban would provide him with a
house and income. Ibrahim also mentioned the
jihad in [Afghanistan] ...
IIR 6 034 0365 02;
detainee "advised reasons gomg to
were to train to go to fight in Chechnya and, secondly, to
immigrate to Afghanistan." IIR 6 034 0861 02. Yet another
"said he was a young man with no future who was tricked by
Abu Khalud ['true name Ibrahim AI-Balawi'], who told him
be could make money and find a wife in [Afghanistan]."
Petitioner's Ex. 2. Ibrahim appears to have frequently offered
his recruits tangible benefits in exchange· for fighting jihad, or
at least equipped them with such cover stories. Latirs
medical records and his. professed desire for medical
treatment are therefore consistent with the Report, not
inconsistent. Crediting those records does nothing to rebut the
Report's presumption of regularity.
of extrinsic evidence to
decision of the
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All of Latifs subsequent statements, including his latest
declaration denying much of the incriminating information
from his first interview, corroborate elements of the Report.
In interviews that took place during Latifs confmement at
Guantanamo, he confirmed several additional details of the
Report, though he ascribed an exclusively medical purpose to
his journey and disclaimed any involvement with the Taliban.
In 2002, for example, Latif confirmed that he was from
'Udayn, that his mother's name is Muna, and that he travelled
to Afghanistan via Sana'a, Karachi, and Quetta, as stated in
the Report. ISN 156 SIR (Mar. 6, 2002). Latif repeatedly
confirmed that his only prior trip out of Yemen was to Jordan
for medical treatment-a unique detail from his initial
interview that the Report gets generally right. See id.; ISN
156 FD-302 (Apr. 26, 2002). The Government's
documentation of the chain of custody for Latif s personal
possessions confirms he was captured with four thousand
Pakistani rupees in his pocket, as noted in the Report. 8
Many characters from the Report's dramatis person~
reappear in Latifs subsequent interrogations, sometimes
playing different parts in his narrative with changes to the
8 According to Latif, 4000 rupees were worth about $60 at the
time. Tr. Classified Merits Hearing (June 8, 2010), at 5-6.
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spelling of their names. For example, the mysterious Ibrahim
appears as an itinerant charity worker, not a jihadi recruiter,
but his role is familiar. In March 2002, more than a year after
the initial interview on which the Report was based, Latif
confirmed that Ibrahim met him in Yemen, cO'nvinced him to
travel, reunited with him at a mosque in Kandahar) hosted
him there in Ibrahim's family home for three days, and then
took him to his next destination in Afghanistan-all details
that also appear the Report. 9 But Latif said his time in Kabul
was spent memorizing the Koran at the institute, not training
for jihad. ISN 156 Sm. (Mar. 6, 2002). In the same interview,
Latif confirmed that he was guided over the border from
Afghanistan into Pakistan by Taqi Ullah (not Taqi Allah as
the name was rendered in the Report), id., and he identified
Abdul Fadel (not Abu Fazl) as the imam of the mosque in
Kabul (not a Taliban commander). [d. Apparently these
spelling differences are inconsequential. 10 In March and April
2002 interrogations, Latif identified Abu Bakr of the Arab
Emirates, Awba (not Abu Hudayfa) of Kuwait, and Hafs (not
Abu Hafs) of Saudi Arabia, among others, as three of the
teachers who stayed with him at the study center in Kabul
(not fellow Taliban fighters). Latirs many statements echoing
9 The Report stated both that Ibrahim owned a taxi in
Kandahar and that he took Latif to the Taliban, who trained him
and stationed him north of Kabul. In March 2002, Latif said
Ibrahim took him direct] to Kabul in a taxi . for by Ibrahim.
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elements of the Government's evidence corroborate the
reliability of the Report and, together with the Report's
intrinsic indicia of reliability, support rather than rebut the
presumption of regularity. As we shall see, the district court's
ambivalent findings about Latifs current story do no better.
III
The district court issued its decision in this case a week
after we published our opinion in Al-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 Latifs 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 overlap· so that the factfmder is forced to
untangle the detainee's current story from the shared
framework of a prior narrative. Even doting Uncle Henry
managed to evaluate Dorothy'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 fmding of
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plausibility. See Latif, 2010 U.S. Dist. LEXIS 83596, slip op.
at 26.
Latif makes two main arguments in defense of the district
court's decision to proceed without an explicit fmding 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 detennination is in its statements that Latir 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) ("Uthrnan'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.
IT, 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 Latifs declaration is more likely true than false.
On this, we are aU 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
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DICTIONARY ONLINE, http://www.oed.com!view/Entry/
145466 (definition 4.a) (emphasis added) (last visited June
16, 2011). A plausible explanation does not necessarily
compel credence. See Zamanov \/. 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 fmding 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, 61.3 F.3d at 1110 ("Valid empirical proof requires not
merely the establishment of possibility, but an estimate of
probability. " {quoting DAYID HACKETT FISCHER, HISTORJANS'
FALLACIES: TOWARD A LOGIC OF HISTORICAL THOUGHT 53
(1970))).
Likewise, to say Latirs 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 Latif s story, not that he has actually done so. Cf
. United States \/. Wooden, 420 F.2d 25,}, 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 confinn
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 2 7 (emphasis added), while assiduously avoiding any
determination that Latif was not lying. The court speCUlated
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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 Latifs "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 Latifs 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" the Report's inculpatory statements,
partly "because ... Latif has presented a plausible alternative
story to explain his travel." Id., slip op. at 26. Instead of
advancing from plausibility to a judgment about Latifs
veracity, the court repeated its plausibility finding: "Latif
asserts that he did not make the statements, and his suggestion
that mistranslation or misattribution likely explain the
indication that he did is plausible." Id. The district court
clearly relied on Latif s alternate account of his trip as one
basis for rejecting the Report.
True, the court cited problems ~
U\.dl~UU·'~
its substantial r e d a c t i o n s , _
its reference to Latifs "hand"
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and the perceived lack of
ora was not so inherently unreliable
that it could be discarded in the absence of countervailing
evidence offering a more likely explanation for Latifs
travels. See supra pp. 20-31. And Latif offers no evidence to
rebut the Government's presumptively reliable record aside
from his own statements and the Report itself. A merely
"plausible" explanation catUlot rebut the presumption of
regularity. See Riggs Nat'l, 295 FJd at 21. The other two
grounds for the court's decision-minor transcription errors
in the Report and a lack of corroboration for its incriminating
statements-do not satisfy that standard. As we have already
discussed, see supra pp. 21 ~27, the mistakes in the Report
provide no support for the much more extensive fabrication
Latif alleges. And to the extent the district court relied on a
lack of corroborative evidence to discredit the Report, it
highlighted its failure to afford the document a presumption
of regularity. By definition, a presumptively reliable record
needs no additional corroboration unless the presumption is
rebutted. 11 Because the district court only found Latifs story
II Because he thinks the presumption of regularity should not
apply to the Report, our dissenting colleague gives considerable
weight to the Goverrunent's lack of "independent corroboration for
any of the Report's incriminating facts." Dissenting Op. at.23
(emphasis added). But even without any presumption in favor of
the Government's evidence, "\ye have not previously regarded
corroboration as a requirement of a meaningful habeas
proceeding." Al Alwi, 2011 U.S. App. LEXIS 14991, at *18. In Al
Alwi, as in other cases, we "upheld a detainee's detention based on
evidence that consisted almost entirely of the detainee's own
testimony." Id. (quoting Al-Madhwani, 2011 U.S. App. LEXIS
10893, af *3) (citing Al-Bihani, 590 F.3d at 870). We said a lack of
corroboration, though not necessarily decisive, should be taken
"into account in assessing the reliability of the petitioner's out-of-
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"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 Latifs story. In other words, the
district court took on the role of a reviewing court, assuming
in effect that Latif aJready 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 factfmding 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.
court statements. U Id. This principle is of no moment here, because
Latifs sole challenge is to the accuracy of a presumptively reliable
government document. Incidentally, it is not quite true that
con'OhC)rlih' on for the
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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 dis"trict court may consider any relevant, .
admissible evidence to aid its evaluation of Latifs 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. 3]4, 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
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petitioner is not entitled to the same constitutional safeguards
as a criminal defendant. Cf A I-Bihan i, 590 FJd 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 testi~ is relevant to the
district court's credibility detennination. 1
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 AI-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
any witnesses either. Appellee's Br. 51. This misses the point. The
drafter of the Report had no incentive to misrepresent Latifs
statements' upon capture, as the Report was not prepared with
litigation in mind. Latif, by contrast, has every incentive to lie
about the purpose of his visit. His fail~re to testify and subject
himself to cross examination therefore undennines 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 Latifs story
one by one, as if each stood alone, and ignoring other
probative details altogether. In A/-AdaM, 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. HId. 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, (a) striking similarities between Latifs exculpatory
.story and the Report, (b) the route Latif admits traveling, and
(c) contradictions in Latifs exculpatory statements. fu
.......... u v .... , the district court . declined to "'v.J,.... ""'...,~
,.u".'.... "' .. court
of weighing this evidence in
A
What makes Latifs current story so hard to swallow is
not its intrinsic implausibility but its correspondence in so
many respects with the Report be now repudiates. Like
Dorothy Gale upon awakening at home in Kansas after her
fantastic journey to the Land of Oz, Latif s current account of
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what transpired bears a striking resemblance to the familiar
faces of his former narrative. See THE WIZARD OF Oz (MGM
1939). Just as the Gales' farmhands were transfonned by
Dorothy's imagination .into the Scarecrow, Tin Man, and
Cowardly Lion, it is at least plausible that Latif, when his
liberty was at stake, transformed his jihadi recruiter into a
charity worker, his Taliban commander into an imam, his
comrades-in-arms into roommates, and his military training
camp into a center for religious study. Although the court
noted Latifs "innocent explanations for the names that appear
in the [Report]," Latif, 2010 U.S. Dist. LEXIS 83596, slip op.
at 15, and addressed them one by one, the court failed to
consider the cumulative effect of all these uncanny
coincidences as our precedent requires. See Uthman, 637 F.3d
at 407 (concluding a detainee's account that "piles
coincidence upon coincidence upon coincidence . . . strains
credulity"). Really, how likely is it that Latifs charity worker
and i!1lam just happened to have names virtually identical to
those of a known Taliban recruiter and commander?
In discrediting the Report, the district court cited Latif s
"plausible" suggestion that the incriminating statements in the
13
Report are the result of misattribution. Latif, 2010 U.S. Dist.
LEXIS 83596, slip op. at 26. But Latifs own insistence (or
self-serving volte-face) is his only evidence that the
13 Throughout the military and judicial proceedings to
determine whether he is properly detained, Latif s defense has been
that the .statements in the Report were misattributed to him. Before
the Combatant Status Review Tribunal, Latif said, "I told you I
wasn't the person they were referring to. I never went to the places
that you said I did. I am not· the person this case is based on." Ex.
30 (ISN 156 CSRT Tr.), at 3.~e the district court, Latif
"argued that the statements in the~eport were likely a product
of mistranslation, misattribution, or some other mistake."
Appellee's Br. 9.
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Those incriminating admissions are
_details in the Report that persist in Latifs current account of
his travels. The district court makes no effort to untangle that
knot.
B
Nor did the district court consider that Latif s
admitted route to Afghanistan from his home in Yemen
corroborates the evidence that Latif trained with the Taliban.
We have held that "traveling to Afghanistan along 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.3d at 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 Utlunan's route from
Sana'a to Karachi by plane, from Karachi to Quetta by bus,
1;4 Although Latif s 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. Latif s 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.
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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 Latir 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 Latirs own subsequent admissions about
the route he traveled. 15 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
Latif s current version of his story conflicts in significant
ways with other things he is reported to have told
interrogators at Guantanamo. The district court rejected the
Report "having taken into consideration the explanation of
events Latif has offered" and even noted some of the
"inconsistencies and unanswered questions" in Latifs story.
Id., slip op. at 27. This is a welcome step toward the holistic
approach to' the evidence we called for in AI-Adahi. But as
with the other evidence, the district court examined some
IS 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 Op. 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." ld. 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 reason, its
fundamentals have remained the same." ld. (The district court
did .not apply similar reasoning to the Government's
evidence. The Report contains two minor discrepancies but its
fundamentals have been corroborated time and again.)
Applied to Latif s contradictory statements, the district
court's reasoning neglects "the well-settled principle that
false exculpatory statements are evidence-often strong
evidence-of guilt." Al-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)).
Many of these "smaller inconsistencies" shore up details
in the Report in ways the district court overlooked. The court
observed, for example, that in Latifs 2009 declaration (in
which he claimed to be too disabled to fight) Latif said he
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"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 Latifs recent declaration.
Although Latif now says he is married and has a son,
Petitioner's Decl., ~~atif is unmarried
and has no c h i l d r e n . _ T h e court noted
this inconsistency, Latif, 2010 U.S. Dist. LEXIS 83596, slip
op. at IS, but only to cast doubt on the accuracy of the Report.
(Since Latif has offered no evidence aside from his own
statements to prove his marital status, it is not clear how the
district court resolved this conflict in his favor, absent a
credibility determination.) The court failed to consider that
Latif s current declaration also conflicts with his Guantanamo
intake form, which indicates he is divorced, and with his
statement to an interrogator in June 2003 that he "would like
to get married and have some children." ISN 156 MFR (June
4, 2003). Both of these statements corroborate the Report and
cast doubt on Latifs 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 is call Gameiat al Hekma or, alternatively, J am-eiah
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Islam. Even if some of the inconsistencies in Latirs story
"may be," as the district court suggested about others, "no
more than misstatements or mistranslations," Latif, 20 I 0 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 FJd at 1110.
D
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I~ We do not ''findrT' 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. Al-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 FJd 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. [d.
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
Bf. 7, and he confinned 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. The district court noted that around that
time, "after the Taliban was defeated in the battle" north of
Kabul, "many fighters went to lalalabad, Afghanistan, moved
on to the Tora Bora mountain area, ... and followed guides
across the border into Pakistan." Latif, 2010 U.S. Dist. LEXIS
83596, slip op. at 12. But the district court concluded "the
timing of [Latifs] departure from Kabul is not suffiCient to
create an inference that he was involved in fighting." [d., 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
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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." [d. 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. [d. 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.
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The dissent admits the circumstances of Latifs flight
from Afghanistan are helpful to the Government's case, but
contends they may not be very heipful 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 Latifs own
statements in isolation, the district court ignored the probative
value of (1) Latifs familiar, four-leg route to Kabul;
(2) Latifs CSRT testimony that he was hospitalized for just
five days instead of three months as he now claims;
(3) Latifs statements at Guantanamo that he is divorced and
would like to get married,
mconslstencles. cannot
a fair reading of the district court's opinion that
any of these facts infomted its conclusion about the
Government's evidence. In light of our application of the
presumption of regularity, there can be no question on remand
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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
role Ibrahim AI-Alawi plays in the Report. Several detainees
reported meeting Ibrahim Ba' alawi in Taiz, Yemen, near Ibb,
which the Report describes as Ibrahim AI-Alawi's hometown,
and being recruited by him to fight jihad. They report that
Ba'alawiarrartged their travel along the same route Latif took
to Afghanistan, lived in Kandahar as Latirs 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 and the Report, the district court implicitly concluded
they were different men on the basis of exculpatory
statements Latif made after his initial interview. Latif makes
much of the fact that AI-Alawi is a different 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
Latir s current story and a known recruiter whose modus
operandi matches up so closely with the Report's account of
Latirs recruiter. The district court implied Latif s benefactor
was a different person from the known jihadi recruiter,
without ever fmding that to be so.
Even if the district court had made a clear finding in
Latirs favor about Ibrahim's identity, we could not affinn it
on this record. Since the probability of one asserted fact is
conditioned upon the likelil100d 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
I g 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.1 0, slip
Ope at 19 n.10 (citing Abdah v. Obama, 717 F. Supp. 2d 21, 35
(D.D.C. 2010)).
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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 Al-Adahi, the evidence before us presents a closer
question than we faced in that case and our subsequent
reversals. Cj AlmerJedi, - F.3d - , 2011 U.S. App. LEXIS
11696; Uthman, 637 F.3d at 400. And the Government says it
has discovered new evidence pertaining to the origins of the
Report that neither the district court nor our court has had
occasion 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.J., dissenting); id. at 827-
28 (Scalia, l, 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. [d. at 828
(Scalia, J., 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 pennits 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.
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expressed sensitivity to such concerns, it did not find them
"dispositive." [d. 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 distric~
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 otlier 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 th~re 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
"wldertak[ing] a wholesale revision of the 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
thegame 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
overcome 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.
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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(Latij), 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, --- FJd ----, 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 o/Bessemer, 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 carmot
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 FJd 1, 7 (D.C. Cir. 2010) (internal
quotations omitted), cert. denied, 131 S. Ct. 1:814 (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 AI-Madhwani, we examined the evidentiary
bases for the district court's factual findings and, finding them
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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; Al-Madhwani, 642 F.3d at
1076. But in both Awad and Al-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 if Latif' s story "on its own
terms[] is not 'intrinsic[alIy] 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 u.s. 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"[ d]ocuments or objective evidence ... contradict the witness'
story"); u.s. Gypsum Co., 333 U.S. at 396 (clear error
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"[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 20-3 I-with a "wholesale
revision of the district court's careful fact findings," Dissenting
Op. at 2.
there is no
Latif was cap
Bay. See Latif, slip op. at 6-7, 25. As Judge Brown
demonstrates, the district court gave insufficient probative
weight to the evidence supporting the reliability of the
Report-including, in particular, the striking consistencies
between the Report and Latif's subsequent admissions, see
Majority Op. at 29-31 I-and to the presumption of regularity
that we accord a government record, see Majority Op. at 6-20.
At the same time, the district court gave undue emphasis both to
lAs Judge Brown explains, Latif subsequently made statements
to interrogators at Guantanamo Bay that confirm assertions in the
Report about his hometown, mother's name, route of travel into
Afghanistan and his earlier journey to lordan for medical treatment.
Latif also told Guantanamo interrogators the names of several men he
met in Afghanistan which names correspond to all ofthe names listed
in the Report. In addition, the government's chain-of-custody
document Jisting Latif's possessions states that Latifhad four thousand
Pakistani rupees when captured-confirming another detail in the
Report.
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largely immaterial errors in the Report and to Latirs "plausible"
alternative explanation for his travels, Latif, 2010 WL 3270761,
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 Al·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 Latifs alternative
explanation-as set forth in his declaration submitted to the
district court-and his earlier statements made to the
Guantanamo interrogators, see Majority Op. at 42-45. 2 After
"consider[ing] all of the evidence taken as a whole," Awad, 608
F.3d at 7, I, like Judge Brown, cannot help but conclude that the
district court's finding regarding the unreliability of the Report
coupled with its fmding regarding the mere plausibility of
2Judge Brown cites a variety of examples-for instance, Latif's
declaration states that he is married and has one son but he told
interrogators that he "would like to get married and have some
children"; Latif's declaration states that he planned to meet Ibrahim in
Pakistan but he told interrogators that he planned to meet Ibrahim in
Afghanistan. Latif has also made inconsistent statements about
whether he stayed with a doctor in Kabul or at a religious institute in
Kabul, whether Ibrahim was with Latif at the time he decided to flee
Afghanistan or had already left several weeks earlier, whether Latif
was arrested at the Pakistani border fleeing Afghanistan or arrested at
ahospitaJ in Pakistan, whether Latif paid for his medical treatment or
not and whether Ibrahim'S charitable organization was called Jamiat
an·Nur, Gameiat al Hekma or lam-eiah Islam.
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Latifs story is neither "permissible" nor "pJausible in light of
the record viewed in its entirety," Anderson, 470 U.S. at 574.
II.
The dissent also asserts that application of the presumption
of regularity to the Report "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 marmer 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
FJd 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 infonnation' " bearing on
the question of reliability. Bensayah v. Obama, 610 F.3d 718,
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725-26 (D.C. Cir. 2010) (quotingParhat, 532 F.3d at 849).3 The
district court considers a wide range of factors-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
3Parhat also requires that hearsay evidence "be presented in a
form, or with sufficient additional information, that penn its 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 (quoting Parhat, 532
F.3d at 846-47)). Unlike the unsourced hearsay allegations in Parhat,
the Report summarizes an interview with Latif himself and thus
identifies "the underlying reporting upon which the government's
assertions are founded'" which is sufficient to enable the district court
to assess its reliability and meet Parhat's requirement. Barhoumi, 609
F.3d at 428 (internal quotations omitted). There is a slightly different
nuance to the reliability inquiry here: unlike either Parhat or
Barhoumi, one of the key disputes is the source of the hearsay
statement-in other words, whether it can be reliably attributed to
Latif-and not only the accuracy ofthe underlying narrative. But here,
too, the Report itself constitutes evidence that Latifis the source of the
inculpatory statements, corroborated by extrinsic evidence of Latifs
biographical details, medical history and admissions to his
Guantanamo interrogators. See supra n.2. Thus, the Report is
"presented in a form" and "with sufficient additional information" to
support the reliability of its attribution to Latif. Parhat, 532 F.3d at
849.
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interrogator'S (iccount" presents an additional "level of technical
hearsay because the interrogator is a third party unavailable for
cross examination." Al-Bihani v. Obama, 590 F.3d 866, 879
(D.C. Cir. 2010), cerro denied, 131 S. Ct. 1814 (2011). The
presumption of regularity does not corne 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
goverrunent official accurately identified .the source and
accurately summarized his statement, but it implies nothing
about the truth of the underlying non-goverrunent 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
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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
COlnmon 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 conunand 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. Obama, 764 F.
4While the facts surrounding hearsay evidence may not always
justify applying the presumption of regularity, it is properly applied
here because the iew with Latif is recorded in a of
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Supp. 2d 60, 68 (D.D.C. 2011) ("The fact that [detainee
interrogation reportsJ 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
preswnption 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.
Nor does the requirement that a challenger offer "clear or
H
specific evidence to defeat the presumption of regularity, Riggs
Nat '/ Corp. v. Comm Ir, 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 discourages the kind of fly-specking in which the district
court-and the dissent-seem to have engaged in this case. The
dissent, for instance, focuses on a handful of "factual errors"
identified by the district court in the Report. Dissenting Op. at
21-22 (citing Report's mistaken reference'to "hand" injury,
ambiguity about whether injury was Latif s or friend'
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The only notewo~acteristic of these
"factual errors" is how trivial a l l _ ares-and therefore
how little probative force they lend to the district court's theory
ofmisatlribution or mistranscription. Indeed, even in its garbled
reference to Latifs medical history, the Report includes an
undisputed detail-his 1994 trip to Jordan to receive medical
treatment for a head injury, see Majority Op. at 27-that belies
court Ip op. at or a reasonable
factfinder plausibly interpret the flaws in the Report as adding
up either to the quantum or to the quality of transcription error
sufficient to transform Latif s exculpatory wrong-place-at-the~
wrong...time account into the coherent and detailed narrative the
Report presents. See id.
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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 the Report. Unlike my
colleague, however, I also believe remanding the case 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 Latifs credibility. See Majority Ope at 36-38.
While I agree that the district court erred in failing to assess
Latirs credibility, Majority Ope at 31-38-for "[a]t no point did
the court make any finding about whether [Latif s narrative] was
more likely than the government's explanation," Al-Adahi v.
Obama, 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-
CIO, 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 argwnent
for remand is that Latif might offer testimony so compelling that
it would shake our confidence in the Report and overcome any
doubt about Latifs credibility. But what 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
statements to interrogators at Guantanamo Bay and fail to offer
any explanation for his inculpatory statements contained in the
Report-the district court would have no choice but to
disbelieve him.. "Credibility invol ves more than demeanor" and
instead "apprehends the over-all evaluation oftestimony in light
of its rationality or internal consistency and the manner in which
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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). Latirs credibility would suffer even if he
largely repeated the story in his declaration but also decided to
embellish it with additional details-perhaps in some attempt to
explain away the Report-because "[p]rior statements that omit
details covered at trial 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.
Cit. 1991). In short, Latif could only dig himself deeper into a
hole on temand. 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 Latifs 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»).
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the Taliban." Latif, 2010 WL 3270761, at *1, slip op. at 3.
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TATEL, Circuit Judge, dissenting: The government's
"pri
carefully laying out the parties' arguments about
the 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 serious question as to whether the [Report]
accurately reflects Latir s words, the incriminating facts in the
[Report] are not corroborated, 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); Al-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
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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 opportuniti'
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 findings. Flaws in
the Report the district court found serious, this court now
finds minor. Latifs account, which the district court found
plausible and corroborated by documentary evidence~
court now "hard to swallow" Maj. Op. at 3 9 . _
district court found
not Implicate thiS court now finds do in fact
implicate him. And on 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 based on oral or other evidence, must not be
set aside unless clearly 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 affinn the district
court's grant of the writ of habeas corpus.
I ..
All agree that this case turns on whether the district court
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correctly found that the government's key piece of evidence,
the Report, was unreliable. And a1l 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
FJd 1106,1117 (D.C. Cir. 2007) (quoting United States v.
Chern. 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 Na(1 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, 40 I
U.S. 402, 415 (1971) (citing Pacific States Box & Basket Co.
v. White, 296 U.S. 176, 185 (1935».
These cases-iIi fact every case applying the presumption
of regularity-have something 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 resul t, courts have no reason to question the
output of such processes 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
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"the waiver of trial by jury fonn" contain inaccurate
infonnation 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 qppellant'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 singl~ 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'i 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 or tax receipts.
Its output, intelligence report,
was, in this court s own in stressful and
chaotic conditions, filtered through interpreters, subject to
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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. T~at federal courts give a presumption of
regularity to judgments arid fact findings that emerge from
such a process, where criminal defendants have ample
opportunity to challenge adverse evidence, see Lackawanna
Cnty. Dist. Au y v. Coss, 532 U.S. 394, 402-03 (2001),
provides no to presume the
accuracy inte11igence reports
prepared in statutory habeas,
where federal 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 perfonned, 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]." [d. 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." [d. at 846. Reinforcing its emphasis on the
importance of assessing 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 Cir. 1982) (emphasis added).
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To be sure, the ~1'\"A,.,nTY\AT'lt
declaration stating
nor anywhere near
familianty or expenence with that course of business
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
TribWlal 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
"ineaningful 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 unreli~ble. 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 modest:
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
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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 .
such
to a pomt, the
prOVl support 's reliability.
For one. thing, it suggests that the Report is in fact authentic,
i.e., that it really is an interrogation summary. Relying on
similar declarations, many district courts that have heard
Guantanamo habeas ~ases-including the district court here-
have adopted a presumption of authenticity for government
records like the. Report even while consistently rejecting a
presumption that such 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, FJd 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 provides a degree of support for their reliability."
Alsabri, 764 F. Supp. 2d at 68. I thus have no problem with
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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 that, as a general matter, government records
consisting of interrogation summaries with inculpatory
admissions are more likely to be reliable evidence than
documents 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 officials 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 ,'..,,....... t·1h"i""
government officers to COflCHlOe
~d in the field
_ n e a r an
layers of hearsay, depen
, .
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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 infonnation regarding the
qualifications or motives of the translator raised doubts about
reliability. Although we characterized this objection as
"troubling" and "accept[ ed] that the additio~al 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. [d. 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 document'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)).
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We followed exactly the same playbook in Bensayah and
Al Alwi, two cases in which we reviewed district court
reliability detenninations about the precise type of
..
- - ..
Obama, 610 FJd 718, 725 (D.C. Cir. 2010). 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 of regularity in Al Alwi even though the
government's evidence, as here, consisted of interrogation
summaries allegedly reporting the petitioners' own statements
and even though tllose documents had greater indicia of
reliability than the Report at issue in this case. Indeed, in Al
Alwi we adopted a rule-that "the [district] 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 finding that the government's informant
reports were reliable. Again, rather than applying a
presumption of regularity, we spent page after page carefu1ly
evaluating the reliability of the reports. In affinning the
district' court's determination that the documents were
reliable, we emphasized external indicia of reliability, such as
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photographs and items seized from petitioner's home, as we}]
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 h~arsay' evidence is "always admissible" in such
proceedings, but th~t 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 careful balance, substituting a presumption in
place of careful district court "review and assess[ment of] all
evidence from both' sides." AI-Bihani, 590 F.3 d 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.
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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 . . . applied
that approach to a (Bensayah,
Al Alwi), and to government mterrogatlOn summaries (AI
Alwi)-the same type and category of documents as the
Report. Following that approach, we have both upheld
(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 government 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 government'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
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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/2011l05_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 the exhibit and statements contained in it were
obtained, accuracy of translation and transcription, personal
knowledge of [th~] declarant ... , levels of hearsay,
recantations, etc." Ahmed, 613 F. Supp. 2d at 55; see also
Sulayman v. Obama, 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 evidence that those statements 'were made under
circumstances that render them intrinsically reliable or were
made by reliable sources. ~ " (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 of truth, Maj. Op. at 9, the difference being that
the latter presumes the content of a report is true, whereas the
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former presumes that the government official filling out the
report did so accurately-i.e., that in doing the interview, he
correctly heard, translated, recorded, and summarized the
content embodied in the report. The district courts have
suffered from no such confusion, nor do I, for the core
question presented in this case is whether the Report
accurately reflects Latifs words. Unsurprisingly, my
colleagues cite not a single case where 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 t9 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." Jd.; 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
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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 il1tefQ~eter's translation of the response; the
interrogator must tak~ accurate notes of what is said; and the
interrogator m~st ac_curately 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 fheir 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 opportut:1ity 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
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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 plurality 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-Bih,ani, 590
F.3d 866, and Parhat v. Gates, 532 FJd 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 A I-Bihani. See Appellees' Br. 52,
Barhoumi, 609 FJd·416 (No. 09-5383) ("In this case, as in
Bihani, the district court did not presume the accuracy or
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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 of2005, 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 fonn, 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 evide~ce 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 govemm~nt 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
that a report-again, one created in a
near _ w i t h mUltiple
~1~9'!'!,.s'?J.y, and d~ranslators and
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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 FJd 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 interpreta~ioris, 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 infirm b.ecause 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.
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II.
Rather than adopting a presumption of regularity, I would
apply clear error review to the district court's fmdings 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 pennissible 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 fmding that the
Report was insufficiently reliable; that it committed no clear
error by crediting Latifs 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
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Th~'s heavy
Ions-portIOns of only out of _ pages are
unredacted-make evaluating Its reliability more difficult.
The unredacted nowhere reveal whether the same
in the Report are redacted, the district court was
unable 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" infonnation
with which to . . . "' ........ ...,. . .
care necessary to
accurate." Id. at 26.
"[F] actual errors" in the Report reinforced the district
court's con.cems. Id. Specifically, although the Report states
"that Latif said he. had been to Jordan to accompany a friend
who needed medical care for his hand[,] . . . Latif has
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repeatedly told interrogators, and has provided evidence to
show, that he went to Jordan for treatment of an injury to his
own, not a friend's, head, not hand." Id. at 15. In addition, the
Report erroneously states that "Latif is unmarried and has no
children," even though "a declaration Latif submitted for use
in this litigation states that he is married and has a son." Id.
Lastly, in what even colleagues concede is an "obvious
. .
Also troubling the district court was the lack of
"corroborating evidence for any of the incriminating
statements in the [Report]." Latif, slip op. at 26. As the district
court explained: "No other detainee saw Latif at a training
camp or in battle. No other detainee told interrogators that he
fled from Afghanistan to Pakistan, from Tora Bora or any
other location, with Latif. No other, type of evidence links
Latif to Al Qaeda, the Taliban, a guest house, or a training
camp." Id. '
The district court properly weighed the cumulative effect
of these subsidiary findings. See Al-Adahi, 613 F.3d at 1105-
06. According to the district court, those findings "supp
an inference that oor translati notetakin
some com resu III an mcorrect
summary of Latif swords." Latif, slip op. at 26.
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
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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 all, skepticism about the
trustworthiness of uncorroborated confessions has deep,
historical roots, so much so that a criminal defendant "may
not be convicted on his own uncorroborated confession."
Smith v. United States, 348 U.S. 147, 152-53 (1954) (noting
that the rule's "foundation lies in a long history of judicial
experience with confessions"). And we recently made clear
that in these Guantanamo habeas 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 Alwi, 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 (district] court cited problems
with the . . its substantial redactions,.
its reference to
its u','~"'J."UJ.U
corro . at
agrees that "(t]he inconsistencies in the Report may suggest a
document produced on the field by imperfect translators or
transcribers." ld. at 27.
Nonetheless, this court insists, "[i]t is almost
inconceivable," id. at 25, that the inculpatory information in
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the Report could have resulted from (
op. at to the court, tbere is too high a '''level of
inculpatory detail" in the Report for it to have resulted from
such mistakes" Maj. Op. at 25. And because the incriminating
statements "are intertwined with other details in the Report
that persist . .
My colleagues' interpretation of the evidence is
undoubtedly plausible. Yet when one accounts for all of the
Report's various problems, the fact tbat admittedly true facts
H
14are intertwined with contested inculpatory ones also
supports another p]ausible explanation, akin to what happens
in the cbildren's game of telephone. In that game, one child
whispers a phrase to another, who in tum whispers it to a
third> and so on, until the last child announces what he or sbe
bas heard. As anyone who has played well knows, the who1e
point of the game is that what the fina1 child hears is both
recognizably similar to the original statement and yet
amusingly transfonned. Cf Carol D. Leonnig & Josh White1
An Ex-Member Calls Detainee Panels Unfair~ WASH. POST,
June 23, 2007 (reporting former-Combatant Status Review
Tribunal member, Lieutenant Colonel Stephen Abraham, as
Uequat[ing] the government hearsay presented [to the CSRTs]
about detainees with a game of telephone,t (internal quotation
marks omitted)).
as may have happened
bere, and the Report produced
U[i]n the of "imperfect translators or
transcribers:' Maj. Op. at 27 ...'\.nd imagine further, as may
also bave happened here, that the uimperfect translator may
U
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have misheard Latifs exact words, or the interrogator may
have misheard the "imperfect" translation, or the "imperfect"
notetaker may have failed to transcribe precisely what was
"imperfect[ly]" translated, or that whoever wrote up a
summary based on those notes, have
failed to understand what notetaker
had written, or that some combination of all those things may·
have occurred. This problem is all the more exacerbated
have here-the
so, s statement a
'Ibrahim AI-Alawi from Ibb encouraging him to travel from
Yemen may have become a reference to a j ihadi recruiter; his
statement about traveling to an Islamic Center in Kabul run by
an imam named Abdul Fadel may have transformed into one
about serving north of Kabul under an Afghan commander
with the homophonous name Abu Fazl; and his statement
about three teachers named Abu Bakr of the Arab Emirates,
Awba of Kuwait, and Hafs of Saudi Arabia, may have turned
into one about fellow Taliban soldiers with the similar
sounding (or identical) names Abu Bakr, Abu Hudayfa, and
Abu Hafs-just as his statement about a trip to Jordan for
treatment of an injury to Latif shead. became a statement
about treatment for his friend's hand. Indeed, my colleagues
nowhere disagree that all of the names and statements
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appearing in the Report sound similar to names and
statements Latif later made.
Dh'illflll.li:I'V, moreover, we no
Irnn,''U',*,ltT w'h~thp..r the redacted _ likewise
Giyen that the circumstances under which
the Report was produced increased the probability of
mistakes, given that the Report contains other ''factual errors) n
and given that the government has failed to corroborate any of
the Report! s incriminating information. Latif, slip op. at 26,
this expJanation is at least plausible-the only question for us
when reviewing fact findings, such as these, for clear error.
See Awad, 608 F.3d at 7 (reiterating that ~w[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. at 26 (conceding tbis
explanation is "possible," yet incorrectly asserting that Uthe
relevant question is whether th[e] hypothesis is like!y").
B
The district court did not stop with the Report. It also
nconsider[edJ the explanation of events Latif has offeredu -
again in service of the critical questio.n of whether the Report
was "sufficiently reliable." Latif, slip op. at 21. According to
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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 Latifs 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. ld. 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.' " ld. at 23 (quoting
letter). The second, "a letter dated August 18, 1999 from
Yemen's Ministry of Public Hea1th," 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.' " ld. (alterations in original) (quoting letter,
which also states that Latif "is hard of hearing" and that "a
wide circular hol[ e] was detected in [Latif s] left eardrum").
And the third-the most important-is Latifs intake form
dated December 31 2001' shortl after he was s .
out was taken
Into , the intake form states that Latif
was in possession of "medical papers" when seized traveling
from Afghanistan to Pakistan. ld. at 23 & n.12.
This documentary evidence, the district court found,
"corroborat[ed]" Latifs "plausible" story. ld. at 26-27. The
district court also rejected 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 ...
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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 infonnation 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 Latifs story is relevant, my
colIeagues nonetheless conclude that by describing it as
"plausible" and "not incredible," the district court never
actuaJ1y 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. Brockenborruglz, 575 F.3d 726, 741 (D.C.
Cir. 2009). Here is what the district court actually said about
Latifs 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. Latifs 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
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not contradict Latifs version of events." Finally, the
district court found the government's] other
arguments attacking the credibility of Latif s
story ... similarly unconVIncmg. The smaller
inconsistencies to which [the government] ha[s]
pointed may be no more than misstatements or
mistranslations; even if some details of Latif s 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 Latifs 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 A/-
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
question as to whether the [Report] accurately reflects Latifs
words" given (Ia) the circumstances under which it was
°
produced and (1 b) the "factual errors" it contains; (2) "the
incriminating facts in the [Report] are not corroborated[;] and
O
[(3)] Latif has presented a p1ausibJe alternative story to
explain his travel." See Latif, slip op. at 26. 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 prevai1 even without the district court
needing to credit the detainee's story by a full preponderance
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of the evidence. To require otherwise would, in effect,
inappropriately shift the burden of proof to Latif.
Given that the district court found Latifs 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 Latifs
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 Latifs 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, LatiJ, 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 Latifs
story" based on those inconsistencies "unconvincing." Latif,
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slip op. at 27. Particularly significant to the district court was
the fact that the "fundamentals [of Latifs story] have
remained the same." Jd. As Latif points out, those
fundamentals-appearing in more than a dozen interro
May 10, 2009-" any
involvement 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 statements to interrogators
had "been relatively consistent." Ex. 80, Memorandum from
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
recording, but rather in brief summaries of translated
interrogations. As mentioned above, it would be unsurprising
to discover that minor errors crept in as Latirs account passed
from his mouth to a translator (of unknown ability) to an
interrogator to the interrogator's notes and .tinally to the
interrogator's summary of those notes-the last of which
represents the only evidence in the record of what Latif
actually said in each of his interrogations. As we remarked in
another Guantanamo Bay habeas case, "[t]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." AI-Madhwani, 2011 WL 2083932,
at *5 (internal quotation marks omitted).
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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 Ibrahim may have "promised Latif
the medical treatment he needed to induce him to join the
Taliban." Maj. Op. at 27-28. Exhibiting heretofore unknown
expertise in al Qaida recruitment strategies, the court posits
that "[s]uch a recruiting tactic (or cover story)" would make
sense.ld. "Latifs medical records and his professed desire for
medical treatment," the court thus finds, "are therefore
consistent with the Report, not inconsistent." Id. at 28. But see
United States v. Microsoft, 253 F.3d 34, 117 (D.C. Cir. 2001)
(en bane) ("[D]istrict court factfindings receive either full
deference under the clearly erroneous standard or they must
be vacated. There is no de novo appellate review of
fact.findings 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 several additional pieces of
evidence that, it believes, buttress its argument that the Report
is reliable. The district court considered all of this evidence.
Some items it found insufficient to outweigh its concerns
about the Report and its positive assessment of Latifs story.
Others it found failed 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 Latifs
seizure by Pakistani authorities-circumstances to which the
district court gave less weight than the government would
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have liked. Latif left Kabul in November 2001 and then
traveled through Jalalabad before eventually arriving at the
Pakistani border where Pakistani 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 and with information in the Report, it is a
helpful piece in the puzzle, bolstering its claim that the
Report's inculpatory statements are accurate.
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.
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Based on nothing more than a few anecdotes, this court
suggests that Latirs route was akin to the country road. It
asserts that the details of Latifs post-Kabul trave]s are
"ana]ogous" 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 time 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 mountains, and the city we know he did travel
through-Jalalabad-has over 160,000 residents, most of
whom were presumably not combatants, see lalalabad,
Britannica Academic Edition, http://www.Britannica.comlEB
checked/topic/299643/Jalalabad (last visited Sept. 20,2011)
(estimating population as of 2006 at 168,600). In Uthman, the
detainee had not only taken a particularly suspicious route,
but also was captured with a "sman 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 AI 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 to]d
interrogators that his Afghan guide was the only person who
accompanied him to the Pakistani border, Ex. 25, Summary
Interrogation 20 and the onl evidence to
the contrary
My colleagues accuse the dlstrict court
even to consider" Latifs route. Id. at 42. But the
district court did consider it, expressly acknowledging that
"Abu Khalud arranged travel for other detainees along the
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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 Latirs 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
thesame 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
detennining whether that petitioner was "part of' al Qaida,
Uthrnan, 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.
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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, Latifs
interrogation summaries all refer to some variation of the
name Ibrahim Alawi but no'ne 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
and.
that detainee). Moreover, Latif described Ibrahim to
interrogators as "skinny," with a "big beard" and as "30-40
yrs. old," as having two children_ _ a boy,
a girl, and as being from Ibb. Latif, slip 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. Jd. But see Maj. Op. at 50
(dismissing these differences because Latirs descriptions of
Ibrahim Alawi appear in interrogation summaries produced
after Latifs initial interview). In light of this mixed record it
is self-evident that "there are two 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.
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Next consider record evidence that, according to this
j
court~shows ·'tbat Latif stayed at al-Qai~
at 45. That evidence consists o f _
which the gov'emmeJnt
1S not
The di court also noted Latifs innocent explanation for
not baving his passport-that he "gave it to Ibrahim to use in
arranging his stay at a hospital.'~ [d.
supports the district court's
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nonetheless accuses the district court of
court
~VU,"lU\.i.LlJ.l~ t h e _
it concluded that
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,
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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 Al-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. Mouling, 557 F.3d 658, 668 (D.C
Cir. 2009). Such affinnative 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.
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AI-Adahi, 613 FJd 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 AI-Madhwani, 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
I
respects, reasoning that the "task" of "resolving" such
discrepancies "quintessentially" belonged to the district court.
Al-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
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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." M~j.
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 ~n 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 on~ 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
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circumstances of Latifs capture and
e court makes
weI , 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 [Latifs]
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 Latifs 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.
~V.l'L~UF, .... es no COnVInCIng anatlOn
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 Qur~o here.
Once the district court had determined that _ d i d not
implicate Latif, it was entirely proper for it to put them 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
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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 primary or even secondary relevance. Compare
id. at 39-41 ("correspondence" between names appearing in
the Report and names Latif later mentioned to interrogators),
with Latif, slip op. at 15-16 (discussing same); compare Maj.
Op. at 41-42 (Latifs travel route from Yemen to
Afghanistan), with Latif, slip op. at 10-11 (discussing same);
compare Maj. Op. at 42-45 (purported inconsistencies in
. Latifs statements), with ' . at 27-28 .
con1Da,re MaJ. Ope at s
....... 1'~<:>_11Y"...
from Kabul and subsequent seizure by Pakistani
authorities), with Latif, slip Ope at 12-13, 25, 27 (discussing
same); compare Maj. Op. at 50-52 (evidence that Latifs
. benefactor, Ibrahim AI-Alawi, is in fact the Al Qaida
facilitator Abu Khalud), with Latif, slip Ope 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 'ct court's silence' easil
already chosen not to credit. But see Maj. Ope at 45-46
(unreflectively treating this omission as an error distinct from
the district court's analysis of the Report).
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
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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 ll8. 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 FJd at 753 (noting that "the
district court generally" considered all the evidence together
but that "its consideration of certain pieces of evidence may
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- have been unduly atomized u 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 undu-e
atomization of the evidence.
III.
For the foregoing reasons, I would affinn the grant of the
writ of habeas corpus.
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