Executive Detention and the Presumption of Regularity

JURIST Guest Columnist Tung Yin of Lewis & Clark Law School says that the decision in Latif v. Obama construes the presumption of regularity in a way that creates an unfair obstacle for military detainees trying to question the evidence used to justify their detention...

In Latif v. Obama, the US Court of Appeals for the District of Columbia Circuit released a heavily-redacted decision that either abdicates much of the judiciary's ability to review executive detention of Guantanamo Bay detainees, if the dissent is correct, or simply applies a commonly used presumption that will have no practical effect in most detainee challenges, if the majority is correct. Latif is a complicated decision, and any assessment of its impact on detainee litigation is, at this point, necessarily speculative. For example, it took Ben Wittes of Lawfare five blog entries with various reflections to reach the conclusion that it is both "important" and "regrettable."

The publicly known facts of Latif are sparse, as the equivalent of two out of three pages in the fact section of the majority opinion have been blacked out. In fact, what is left is decidedly one-sided: Latif's side, which comes from a 2009 declaration that the detainee filed in connection with his habeas corpus petition. Though the government's version remains classified, one can infer from Latif's version that he was captured in Pakistan in late 2001 or early 2002, after having been in Afghanistan at some point around or after September 11, 2001. Latif was subsequently sent to the detention facility at the US Naval Base at Guantanamo Bay.

When Latif challenged his detention through a petition for a writ of habeas corpus, as permitted under the federal habeas corpus statute and the Supreme Court's decisions in Rasul v. Bush and Boumediene v. Bush, the government bore the burden of proving his status as a combatant subject to detention under the Authorization for Use of Military Force. Here too the exact details remain unknown, as the opinion states, "[a]t the heart of the Government's case is" with the rest of the paragraph blacked out. What is clear is that the government relied crucially on an intelligence report that apparently collected and laid out the evidence against Latif.

In ruling in favor of Latif, the district court rejected the government's argument that the intelligence report was entitled to a presumption of regularity — meaning that the government record (the report, in this case) was accurately produced.

A two-judge majority in the DC Circuit (made up of Judges Brown and Henderson) reversed the lower court, concluding that government intelligence reports were indeed entitled to a presumption of regularity. The essence of the court's decision was that the presumption of regularity only presumes that the report accurately and faithfully records what the author was told. It does not, however, apply to the underlying information that is the subject of the report. In other words, if an intelligence agent were to write that a witness claimed that a detainee was a member of al Qaeda, the court would presume that the report correctly reports the witness's claim, but the claim itself would not be presumed accurate. The court justified this presumption on the ground that "courts have no special expertise in evaluating the nature and reliability of the Executive branch's wartime records." In dissent, Judge Tatel argued that the presumption of regularity was unwarranted because intelligence reports are often produced under chaotic battlefield conditions, thus increasing the chance of mistakes or other problems. In addition, he argued that the process of generating these intelligence reports is so foreign to courts and lacking in transparency that courts should not credit them with regularity.

The best that can be said in support of the majority position is that, without a presumption of regularity, the government may often be unable to defend the accuracy of its intelligence report because the author(s) are unavailable, or dead. It would be easy for a detainee to assert that a report is inaccurate, and difficult, if not impossible, for the government to rebut the assertion with specificity. This is why the presumption of regularity is useful for government activities such as mail delivery and court proceedings; it cannot be reasonably expected that a mail carrier will remember a specific mail delivery, but we can expect that, in the absence of any evidence to the contrary, the mail carrier would have carried out his or her duties.

Application of the presumption of regularity to intelligence reports, however, will likely undermine a detainee's ability to test the government's evidence against him. Consider how hearsay evidence would be attacked if it were generally admissible in civilian courts. A witness testifies that someone else claims to have heard the defendant confess to the crime in question. Assuming that the third party does not testify in the trial (which is the reason the hearsay is being presented through the witness), the defense can cast doubt on the validity of the third party's claim (i.e., the defendant did not confess, the third party has some bias against the defendant, etc.). However, the defense is not limited to attacking the third party's claim; the defense can also cross-examine the witness directly, not just about bias against the defendant, but also about whether the witness heard the third party accurately. That is, even if the witness is testifying in good faith, he or she might be mistaken. The presumption of regularity in this context effectively strips the detainee of the ability to cross-examine the equivalent of the testifying witness.

Barhoumi v. Obama, an earlier detainee case that was the subject of disagreement between the majority and the dissent, provides a concrete example of the problem. The basic facts of the case and the holding were not in dispute; rather, the fight over Barhoumi concerned the degree of scrutiny that the earlier opinion had exhibited toward the reliability of an English translation of a captured fighter's diary, written in Arabic, that proved crucial in confirming Barhoumi's combatant status. According to the Latif majority, the court had not applied the presumption of regularity because the district court judge had denied the detainee's habeas petition, and the DC Circuit was reviewing only for clear error. On the other hand, Judge Tatel (who wrote Barhoumi) noted that the translation of the diary was not presumed correct, and that while the court ultimately ruled in favor of the government, it first accepted that the translation made the diary "somewhat less reliable" than if the government had made the original diary available to the detainee.

The Latif majority elided the question of whether the presumption of regularity should have applied to the translation of the diary. Did the government accurately translate the diary? Unlike the question of whether a piece of mail was delivered, or whether a court document accurately stated the court's decision, the government would be in a position to demonstrate that the diary was translated accurately: it could produce the original diary.

An intelligence report, to be sure, presents a more difficult question, since the author, as well as the subject(s) of the report, might be unavailable (though the subjects might be unavailable only because the government does not want to expose them to anyone other than their captors and interrogators). At most, that distinction might weigh in favor of the presumption of regularity for intelligence reports, but not translations of foreign-language documents. Drawing the line there requires accepting the fact that, with intelligence reports, the presumption of regularity essentially favors the government over the detainee in a situation where the underlying evidence or witness is unavailable. Perhaps that is a defensible cost-benefit analysis. Yet, the Latif majority went further than that. It avoided drawing a line, but in doing so, it took away the opportunity for detainees to challenge the accuracy of government reports even in instances when the government arguably would have faced no actual or security-related difficulties in permitting such a challenge to proceed.

Tung Yin is a Professor of Law at Lewis & Clark Law School. His scholarly work has examined such matters as the jurisdiction of the federal courts to entertain habeas petitions by Guantanamo Bay detainees, the theory of unilateral executive branch war powers, and the potential constitutional rights available to alien detainees outside the country. He is a former clerk for Judge Edward Rafeedie of the US District Court for the Central District of California, Judge William Holloway, Jr., of the US Court of Appeals for the Tenth Circuit, and Judge J. Clifford Wallace of the US Court of Appeals for the Ninth Circuit.

Suggested citation: Tung Yin, Executive Detention and the Presumption of Regularity, JURIST - Forum, Dec. 10, 2011, http://jurist.org/forum/2011/12/tung-yin-executive-detention.php.



This article was prepared for publication by Caleb Pittman, an assistant editor for JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org

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