In today’s New York Times, Adam Liptak writes:
Recent opinions from the United States Court of Appeals for the District of Columbia Circuit are studded with redactions that call to mind the zany game, the one where players fill in blanks in little stories, sometimes to absurd effect.
The inspiration for the article is the D.C. Circuit’s latest Guantanamo habeas case, Latif v. Obama, which splintered into three heavily redacted opinions. [Opinion PDF].
Judge Janice Rogers Brown wrote the controlling opinion, which held that
- An intelligence report is entitled to the rebuttable presumption of regularity that applies to other government documents;
- A detainee’s exculpatory story that is merely “plausible” (not credible) is insufficient to overcome the presumption of regularity;
- A detainee’s decision not to testify supports an adverse inference about his credibility; and
- The district court erred by evaluating some evidence in isolation and ignoring other evidence instead of considering it all as a whole.
Commentators have focused on the presumption of regularity, which was the focus of Judge Tatel’s dissent. But permitting the trial court to draw an adverse inference from a detainee’s silence may prove even more significant to the practice and outcome of detainee litigation.
Judge Karen LeCraft Henderson agreed with all of these holdings but concurred in the judgment because she would have reversed the habeas grant outright rather than remanding for further district court proceedings as Judge Brown’s opinion ordered.
- The opinions were re-released with fewer redactions on April 27, 2012. [PDF] See D.C. Circuit Fills in Some Blanks in Buantanamo Mad Libs Opinion, D.C. Circuit Review (Apr. 27, 2012)