Harvard Law Review on the Presumption of Regularity for Government Intelligence Reports

The Harvard Law Review has published a case comment entitled D.C. Circuit Holds that Government Intelligence Reports Are Entitled to a Presumption of Regularity–Latif v. Obama, 666 F.3d 746 (D.C. Cir. 2011)

From the comment:

[T]he application of a presumption of regularity to government statements in intelligence reports is inappropriate. As its name implies, the presumption is suited for contexts in which some notion of “regularity” exists in the government’s activities; it requires the existence of an “established procedure” and is not applied when the agency or government practice is “not regular.”

But see:

  • Latif v. Obama666 F.3d 746, 752 (D.C. Cir. 2011) (“Thanks to the explanatory declarations [REDACTED] . . . , 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 reason to suspect such documents are fundamentally unreliable.”).

From the comment:

[W]hile Boumediene did invite common law innovation, the Latif majority did not acknowledge that such innovation must be consistent with Boumediene’s other language, including its “meaningful opportunity” command.

But see:

  • Latif, 666 F.3d at 749 (“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, yet it left unaddressed the content of the governing law.” (quoting Boumediene v. Bush553 U.S. 723, 779 (2008)).
  • Id. at 749 n.1 (“Specifically, the Supreme Court held that Guantanamo detainees must have ‘the means to supplement the record on review,’ and that the court conducting habeas proceedings must have authority (1) ‘to assess the sufficiency of the Government’s evidence against the detainee,’ (2) ‘to admit and consider relevant exculpatory evidence,’ (3) ‘to make a determination in light of the relevant law and facts,’ and (4) ‘to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release.’ ” (quoting Boumediene, 553 U.S. at 786-87)).

From the comment:

As for the practical impact of a presumption of regularity, there is a real danger that it will come to function as a wholesale presumption of accuracy for all the content in government intelligence reports.

But see:

  • Latif, 666 F.3d at 755 (“[T]he presumption of regularity, if not rebutted, only permits a court to conclude that the statements in a government record were actually made; it says nothing about whether those statements are true.”)

From the comment:

[W]ithout the presumption, a detainee was able to challenge the accuracy of the government’s translations or transcriptions; now, his sole means of rebutting the presumption is to marshal evidence to demonstrate the inaccuracy or unreliability of the underlying source’s statements.

But cf.:

  • Latif, 666 F.3d at 749 (“We conclude . . . that neither internal flaws nor external record evidence rebuts that presumption in this case.”).

From the comment:

[T]he presumption is a hurdle nearly every detainee will have to clear in the future, since the government possesses intelligence reports on each of them.

But see:

  • Latif, 666 F.3d at 750-51 (“[A] presumption of accuracy . . . is often unnecessary or irrelevant. . . . [I]n many cases, detainees do not challenge the Government’s recordkeeping. Instead, they attack the sufficiency of the evidence, or they claim that the Government’s information is unreliable because it resulted from harsh interrogation techniques, multiple levels of hearsay, or unknown sources.”).

From the comment:

It is in precisely such contexts [detention pursuant to Combatant Status Review Tribunal] that a rigorous habeas process is needed to “protect against abuse of executive power” and “evaluate the lawfulness of executive detention.” (quoting Gerald L. Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961, 963 (1998)).

But see:

  • Boumediene, 553 U.S. at 795 (“Although we hold that the [Detainee Treatment Act] is not an adequate and effective substitute for habeas corpus, it does not follow that a habeas corpus court may disregard the dangers the detention in these cases was intended to prevent. . . . 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.”), cited in Latif, 666 F.3d at 749.

From the comment:

[D]eference to executive expertise — is not compelling enough to justify the presumption. . . . While comity and executive expertise justify some deference, a presumption of regularity is simply too deferential.

But cf.:

  • Boumediene v. Bush, 553 U.S. at 796-97 (“In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches. . . . The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security.”), quoted in Latif, 666 F.3d at 751-52.

From the comment:

Rather than following “a careful and fine-grained approach to the assessment of reliability,” the D.C. Circuit took a dramatic step in adopting the presumption of regularity — which helps to explain why the court had never applied the presumption in its previous cases.

But cf.:

  • Latif, 666 F.3d at 751 (“To forbid a presumption of regularity in spite of Boumediene’s implicit invitation to innovate would be particularly counterintuitive, since the field of habeas corpus is already well accustomed to such burden-shifting presumptions.”);
  • Id. at 752 (“In Al-Bihani [v. Obama590 F.3d 866 (D.C. Cir. 2010)], the detainee complained that the district court had ‘erred by . . . presuming the accuracy of the government’s evidence.’ . . . 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. . . . Although we found the presumption rebutted in Parhat, we cast no doubt on the propriety of such a presumption in the Guantanamo context. . . . And neither the Supreme Court nor our court has ever rejected the presumption we analyzed in that case.”)

After the comment was written, but before it was published, the D.C. Circuit released a less heavily redacted version of the Latif opinions, and the Supreme Court denied cert.  The material quoted above was available in the first published version of the opinion.

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One response to “Harvard Law Review on the Presumption of Regularity for Government Intelligence Reports

  1. Pingback: Lawfare » Al-Amyn Sumar on Latif and the Presumption of Regularity

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