Supreme Court to Consider Granting Guantanamo Cert Petition Next Week

[Update: The Supreme Court denied cert on June 11, 2012.]

The D.C. Circuit’s decision vacating the habeas grant in Latif v. Obama is back in the news. The Guantanamo detainee’s cert petition, which was yesterday’s “petition of the day” at SCOTUSblog, has been distributed for consideration at the Supreme Court’s May 17 conference, along with recently redacted, public versions of the Solicitor General’s response in opposition to cert (pdf) and Latif’s reply (pdf).

Anticipating the Supreme Court’s conference, the New York Times called Latif a “grossly unfair decision.” That assessment was based on the editorial board’s understanding that the D.C. Circuit held “a government report leading to Mr. Latif’s detention must be assumed to be accurate under ‘a presumption of regularity,’ unless there is ‘clear evidence to the contrary.'”  This interpretation of the opinion was quickly echoed by Scott Horton in Harper’s: “[Judge] Brown believes the trial court should have accepted the CIA’s analysis unless convincing evidence existed to contradict it.”

In fact, the opinion holds only that the government’s report is entitled to a rebuttable presumption that it accurately summarizes the detainee’s own statements–not that those statements are true or that that the government drew the correct inference from them.  (“The presumption of regularity . . . 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 source’s statement.”)  And the court expressly declined to decide whether the detainee’s rebuttal evidence must be “clear and convincing.”  (“We need not decide precisely how much more the detainee must show to overcome the presumption of regularity. . . . Even if we assume a detainee may overcome the presumption by a mere preponderance of the evidence, Latif cannot meet that standard.”).

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

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