D.C. Circuit Fills in Some Blanks in Guantanamo Mad Libs Opinion

Today the D.C. Circuit released a more complete version of the opinions (searchable pdf) in a controversial Guantanamo habeas case currently before the Supreme Court on a cert petition.  The three opinions of the divided panel in Latif v. Obama were originally released with heavy redactions of purportedly classified material.

The new version of Judge Brown’s opinion for the court reveals more about the content of the government report that was held to merit a presumption of regularity.

Critically, the Report purports to summarize an actual interview with Latif himself– not the anonymous hearsay we rejected in Parhat. Rather than “bottom-line assertions,” 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 the subject of the interview.

Neither of the flaws Latif points to [in the Report] 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. 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 Latif’s 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 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?

The dissent also fails to account for Latif’s 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,” those agents would invent the counterintuitive claim that Latif “never fired a shot” during his time on the front lines with the Taliban.

The newly released material mentions statements Latif made in captivity that allegedly corroborate the Report.

In interviews that took place during Latif’s confinement 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.

Many characters from the Report’s dramatis personae reappear in Latif’s subsequent interrogations, sometimes playing different parts in his narrative with changes to the 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, convinced 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. But Latif said his time in Kabul was spent memorizing the Koran at the institute, not training for jihad. 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), and he identified Abdul Fadel (not Abu Fazl) as the imam of the mosque in Kabul (not a Taliban commander). . . . 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).

This provides some context for the D.C. Circuit’s conclusion that the district court failed to consider “striking similarities between Latif’s exculpatory story and the Report”:

What makes Latif’s current story so hard to swallow is not its intrinsic implausibility but its correspondence in so many respects with the Report he 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 what transpired bears a striking resemblance to the familiar faces of his former narrative. Just as the Gales’ farmhands were transformed 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 [district] court noted Latif’s “innocent explanations for the names that appear in the [Report],” and addressed them one by one, the court failed to consider the cumulative effect of all these uncanny coincidences as our precedent requires.

The re-released opinions still contain many redactions, including whole pages that are blacked out.

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

Prior Coverage:

3 responses to “D.C. Circuit Fills in Some Blanks in Guantanamo Mad Libs Opinion

  1. Pingback: Lawfare » Less-Redacted Latif

  2. Pingback: Lawfare » Thoughts on Latif #6—The Decision (Partially) Unmasked

  3. Pingback: Harvard Law Review on the Presumption of Regularity for Government Intelligence Reports | D.C. Circuit Review

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