Cert Petition Challenges Guantanamo Case that Divided the D.C. Circuit

Benjamin Wittes at Lawfare reported on Friday the filing of a sealed and classified cert petition challenging the D.C. Circuit’s decision in Latif v. Obama.  The case was previously reported here.

The unsealed questions presented predictably attack the rebuttable presumption of regularity that the D.C. Circuit held applicable to the Government’s evidence in that case, but the questions do not specifically mention the decision’s holding that a district court may draw an adverse inference from a detainee’s refusal to testify on his own behalf.  In cases that often turn on the credibility of the detainee, and in which detainees have historically declined to testify, such an inference may sometimes prove decisive.  This may be a tactical omission in light of Supreme Court precedent permitting the use of such an inference in civil cases, or the issue may be addressed under a different heading.

Questions Presented:

1. Whether requiring the district court to presume the accuracy of intelligence reports denies Guantanamo habeas petitioners the “meaningful opportunity” to contest the lawfulness of their detention guaranteed by Boumediene v. Bush, 553 U.S. 723 (2008).

2. Whether a court of appeals’ substitution of its own analysis of the record evidence for that of a district court in a habeas case, where there is no finding that the district court committed clear error, improperly intrudes upon the fact-finding function of the district court and exceeds the appellate function of the court of appeals.

3. Whether the court of appeals’ manifest unwillingness to allow Guantanamo detainees to prevail in their habeas corpus cases calls for the exercise of this Court’s supervisory power.


  • The full-length, albeit redacted, cert petition is now publicly available. (Hat Tip: Lawfare).  The petition mentions in passing that the D.C. Circuit “instructed the district court that a detainee’s ‘refusal to testify is relevant to the . . . credibility determination.'” (Page 8).  But the petition does not cite this adverse inference as a reason for granting cert.

Latif v. Obama, No. 10-5319 (Oct. 14, 2011) (Brown, J., with concurrence in the judgment by Henderson, J., and dissent by Tatel, J.)

2 responses to “Cert Petition Challenges Guantanamo Case that Divided the D.C. Circuit

  1. Pingback: Amicus Briefs Ask the Supreme Court To Hear the First Guantanamo Habeas Case Since Boumediene « D.C. Circuit Review

  2. Pingback: D.C. Circuit Fills in Some Blanks in Guantanamo Mad Libs Opinion « D.C. Circuit Review

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