[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] on Wednesday released a partially redacted opinion [PDF] in Latif v. Obama, overturning the release order [JURIST report] for Yemeni Guantanamo detainee Adnan Farhan Abdul Latif [NYT profile]. The redaction at times covers entire sections, but reveals strong divisions between the deciding judges. The unredacted portion of the majority opinion largely focuses on the district court’s failure to afford the evidence of the government—intelligence reports—a presumption of regularity. The majority opines there is confusion over the application of the presumption stemming from:
the fact that intelligence reports involve two distinct actors—the non-government source and the government official who summarizes (or transcribes) the source’s statement. The presumption of regularity pertains only to the second: it 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. … The presumption of regularity—to the extent it is not rebutted—requires a court to treat the Government’s record as accurate; it does not compel a determination that the record establishes what it is offered to prove.
The majority asserts the presumption is provided for in Boumediene v. Bush [opinion text] and regularly applied by courts in the context of federalism. In the absence of an explicit finding of credibility regarding Latif’s “plausible alternative story” by the district court judge, the presumption stood firm. In sharp contrast, the dissent accuses the majority of deviating from a “highly deferential clear error review” and in evaluating the evidence (which it finds unreliable), it “moves the goal posts” by applying a “new presumption and then proceeding to find that it has not been rebutted.” This, the dissent asserts, eviscerates the “meaningful opportunity” guaranteed by Boumediene. The case was remanded to district court to reconsider the evidence in light of the “presumptively reliable government evidence.”
Federal courts have struggled with habeas corpus rights for Guantanamo detainees. In May, the DC Circuit affirmed [JURIST report] a lower court’s decision that Yemeni Guantanamo Bay detainee Musa’ab Omar al-Madhwani is lawfully detained for being part of al Qaeda. In March, the DC Circuit overturned [JURIST report] a lower court’s decision granting release to Yemeni Guantanamo detainee Uthman Abdul Rahim Mohammed Uthman. In September 2010, Kuwaiti Guantanamo detainee Fawzi Khalid Abdullah Fahad al Odah petitioned [JURIST report] the US Supreme Court [official website] to reverse a federal appeals court decision that denied him habeas corpus relief, but the Supreme Court turned down his appeal in April.