Latif v. Obama

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~nitco ~tatcs ([ourt of ~ppcaIs

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 15, 2011 Decided October 14, 2011

No. 10-5319

ADNAN FARHAN ABDUL LATIF, DETAINEE, CAMP DELTA, ET

AL.,

APPELLEES

v.

BARACK OBAMA, PRESIDENT OF THE UNITED STATES, ET AL.,

ApPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No.1 :04-cv-01254)

August E. Flentje, Attorney, U.S. Department of Justice,

argued the cause for appellants. With him on the briefs were

Ian Heath Gershengorn, Deputy Assistant Attorney General,

and Robert M Loeb, Attorney.

Philip A. Scarborough argued the cause for appellees.

On the brief were S. William Livingston, Roger A. Ford, and

David H Remes. Brian E. Foster entered an appearance.

Before: HENDERSON, TATEL and BROWN, Circuit Judges.

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Opinion for the Court filed by Circuit Judge BROWN.

Concurring opinion filed by Circuit Judge HENDERSON.

Dissenting opinion filed by Circuit Judge TATEL.

BROWN, Circuit Judge: The United States appeals the

district court's grant of the writ of habeas corpus to detainee

Adnan Farhan Abd Al Latif. Three errors in the district

court's analysis require us to vacate that decision. First, the

court failed to accord an official government record a

presumption of regUlarity. Second, the district court failed to

determine Latif s credibility even though the court relied on

his declaration to discredit the Government's key evidence.

See AI-Adahi v. Obama, 613 F.3d 1102, 1110 (D.C. Cir.

2010). Third, the court's unduly atomized approach to the

evidence is one we have rejected. See id. We remand so the

district court can evaluate Latif s credibility as needed in light

of the totality of the evidence, including newly available

evidence as appropriate.

I

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In

ever being part of the Taliban and offers an innocent

explanation for his journey. Latif says he left Yemen in 2001

on a quest for medical treatment for head injuries he suffered

in a 1994 car accident. He went to Pakistan to get help from

Ibrahim, a Yemeni he had met at a charitable organization in

Yemen. When Latif arrived in Quetta, Ibrahim had already

left Pakistan, so Latif followed him to an Islamic studies

institute in Kabul, Afghanistan. But once Latif caught up to

Ibrahim at the institute, Ibrahim had to leave again and told

Latif to wait for him there until they could travel together to

Pakistan. After waiting in vain for several weeks, Latif says,

he then returned to Pakistan without Ibrahim, fleeing U.S.-

supported forces he had been told were advancing from

northern Afghanistan.

The district court granted Latif s habeas petition

following briefmg and a hearing in which Latif declined to

testify. Abdah Obama 2010 U.S. Dist. LEXIS

83596 .D.C. 21 201

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II

In a Guantanamo detainee case, we review the district

court's "specific factual determinations" for clear error, and

its ultimate grant or denial of habeas de novo. Almerfedi v.

Obama, - F.3d -, 2011 U.S. App. LEXIS 11696, at *11

(D.C. Cir. June 10, 2011). As in our prior cases, we assume,

without deciding, that the district court was correct to hold the

Government to the preponderance-of-the-evidence standard.

See id. at 11 n.4; Al-Bihani v. Obama, 590 F.3d 866, 878 &

n.4 (D.C. Cir. 2010); see also Boumediene v. Bush, 553 U.S.

723, 787 (2008) ("The extent of the showing required of the

Government in these cases is a matter to be determined."); Al-

Adahi, 613 F.3d at 1105 ("Although we doubt ... that the

Suspension Clause requires the use of the preponderance

standard, we will not decide the question in this case."). To

meet its burden, "the government must put forth credible facts

demonstrating that the petitioner meets the detention standard,

which is then compared to a detainee's facts and

explanation." Almerfedi, - F.3d -,2011 U.S. App. LEXIS

11696, at *12-13.

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Ordinarily, at this point in our analysis, we would simply

review the district court's comparison of the Government's

evidence with the "detainee's facts and explanation," bearing

in mind that the ultimate burden is on the Government to

establish Latif s detention is legal. Id. We pause here,

however, because the district court expressly refused to

accord a presumption of regularity to the Government's

evidence, and on appeal the Government continues to assert

its Report is entitled to such a presumption.

A

"The presumption of regularity supports the official acts

of public officers and, in the absence of clear evidence to the

contrary, courts presume that they have properly discharged

their official duties." Sussman v. u.s. Marshals Serv., 494

F.3d 1105, 1117 (D.C. Cir. 2007). The presumption applies to

government-produced documents no less than to other official

acts. See Riggs Nat'l Corp. v. Comm'r, 295 FJd 16,21 (D.C.

Cir. 2002) (holding that "an official tax receipt" of a foreign

government "is entitled to a presumption of regUlarity"). But

Latif (and our dissenting colleague) argue no such

pre can be applied in Guantanamo cases-at least

not to reports prepared in stressful and chaotic

conditIons, through interpreters, subject to

transcription errors, and heavily redacted for national security

purposes.

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Latif cites are typical

VVJLVU.J.1.3

the rule he proposes

ect to the he-saidlshe-said balancing

of ordinary evidence. It is impossible to cure the conditions

under which these documents were created, so Latif s

proposed rule would render the traditional presumption of

regularity wholly illusory in this context. We conclude first

that intelligence documents of the sort at issue here are

entitled to a presumption of regularity, and second that neither

internal flaws nor external record evidence rebuts that

presumption in this case.

Courts sensibly have anticipated that some sort of

presumption is proper in the Guantanamo context, but until

now we have not directly addressed the question. The dissent

interprets our silence heretofore as disapproval and suggests

that a presumption in favor of the Government's evidence in

this case "inappropriately shift[s] the burden" of proof from

the Government to the detainee. Dissenting Op. at 30. A

Supreme Court plurality said just the opposite, however-and

in a case involving the military detention of an American

citizen, no less:

[T]he Constitution would not be offended by a

presumption in favor of the Government's

evidence, so long as that presumption

remained a rebuttable one and fair opportunity

for rebuttal were provided. Thus, once the

Government puts forth credible evidence that

the habeas petitioner meets the enemy-

combatant criteria, the onus could shift to the

petitioner to rebut that evidence with more

persuasive evidence that he falls outside the

criteria.

Hamdi v. Rumsfeld, 542 U.S. 507, 534 (2004).

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When the Supreme Court extended the habeas right to

non-citizen detainees in 2008, it tasked the lower courts with

developing a workable habeas remedy that would give

detainees a "meaningful opportunity to demonstrate" the

unlawfulness of their detention, Boumediene, 553 U.S. at 779,

yet it left unaddressed the content of the governing law, id. at

798. Boumediene noted that "common-law habeas corpus

was, above all, an adaptable remedy" whose "precise

application and scope changed depending upon the

circumstances." Id. at 779. Our dissenting colleague seems to

think Boumediene mandates a skeptical-if not cynical-

supervisory role for the courts over the Executive branch's

interactions with its detainees at Guantanamo. Dissenting Op.

at 7. In our view, the Boumediene Court envisioned a much

more modest judicial role. Aside from a few minimal

procedural safeguards, designed to preclude the Government

acting as its own judge, 1 the Court left the scope of the habeas

right to the common-law-like process in which we have been

engaged ever since: "[T]he Suspension Clause does not resist

innovation in the field of habeas corpus. Certain

accommodations can be made to reduce the burden habeas

corpus proceedings will place on the military without

impermissibly diluting the protections of the writ."

Boumediene, 553 U.S. at 795.

1 Specifically, the Supreme Court held that Guantanamo

detainees must have "the means to supplement the record on

review," Boumediene, 553 U.S. at 786, and that the court

conducting habeas proceedings must have authority (1) "to assess

the sufficiency of the Government's evidence against the detainee,"

id.; (2) "to admit and consider relevant exculpatory evidence," id.;

(3) "to make a determination in light of the relevant law and facts,"

id. at 787; and (4) "to formulate and issue appropriate orders for

relief, including, if necessary, an order directing the prisoner's

release," id.

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In that spirit, the district court has operated under a case

management order that specifically authorized reliance on

evidentiary presumptions. See In re Guantanamo Bay

Detainee Litig., 2008 U.S. Dist. LEXIS 97095, at *104

(D.D.C. Nov. 6, 2008) ("The Merits Judge may accord a

rebuttable presumption of accuracy and authenticity to any

evidence the government presents as justification for the

petitioner's detention if the government establishes that the

presumption is necessary to alleviate an undue burden

presented by.the particular habeas corpus proceeding."). The

Government has frequently invoked this order in urging a

presumption that its evidence is accurate, but the district

court, with no guidance from us, has been reluctant to grant

anything more than a presumption of authenticity. See

BENJAMIN WITTES, ROBERT M. CHESNEY & LARKIN

REYNOLDS, The Emerging Law of Detention 2.0:

Guantanamo Habeas Cases as Lawmaking, at 52-53 nn. 237-

43 (May 12, 2011) (citing cases granting a presumption of

authenticity but not accuracy),

http://www.brookings.edu/papers/2011/05_guantanamo_witte

s.aspx (last visited September 30, 2011). Aside from our

silence, there are at least two other reasons why the district

court has not applied a presumption of accuracy.

Confusion about the nature of the presumption may

account for the district court's reluctance. In an order

applicable to the present case, the district court held, "any

evidence presented by the government that has been created

and maintained in the ordinary course of business should be

afforded a presumption of authenticity," Dist. Ct. Docket No.

606, but the court rejected the government's request for a

presumption of accuracy "for the reasons stated by Judge

Kessler in Ahmed v. Obama, 613 F. Supp. 2d 51, 54-55

(D.D.C. 2009) and Judge Kollar-Kotelly in Al Mutairi v.

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United States, [644 F. Supp. 2d 78 (D.D.C. July 29, 2009)]."

Id. Those cases misunderstood the nature of the presumption.

In Ahmed and Al Mutairi, the district court assumed the

requested presumption would go to the truth of "the facts

contained in the Government's exhibits." Ahmed, 613 F.

Supp. 2d at 55. Since "the accuracy of much of the factual

material contained in the [Government's] exhibits [was] hotly

contested," id., quoted in Al Mutairi, 644 F. Supp. 2d at 84,

and the evidentiary dispute in Ahmed involved allegations that

the relevant statements were "obtained by torture," Ahmed,

613 F. Supp. 2d at 55, the court was rightly disinclined to

grant them a presumption of truth. But the presumption of

regularity does not require a court to accept the truth of a non-

government source's statement.

The confusion stems 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. There are many conceivable reasons why a

government document might accurately record a statement

that is itself incredible. A source may be shown to have lied,

for example, or he may prove his statement was coerced. 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.

Another reason the district court has denied the

Government's motions for a presumption of accuracy may be

that such a presumption is often unnecessary or irrelevant.

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The Government has frequently been able to prove its

detention authority without relying on any presumption that

its records are accurate. And in many cases, detainees do not

challenge the Government's recordkeeping. Instead, they

attack the sufficiency of the evidence, or they claim that the

Government's information is unreliable because it resulted

from harsh interrogation techniques, multiple levels of

hearsay, or unknown sources.

This case presents a different question because Latif s

sole is to the accuracy of the Government's

. When the detainee's challenge is

to process itself, should a presumption

of regularity apply to the official government document that

results ? We think the answer is yes.

To forbid a presumption of regularity in spite of

Boumediene's implicit invitation to innovate, 553 U.S. at 795,

would be particularly counterintuitive, since the field of

habeas corpus is already well accustomed to such burden-

shifting presumptions. In a state prisoner's federal habeas

proceeding, for example, "a determination of a factual issue

made by a State court shall be presumed to be correct," and

"the applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing

evidence." 28 U.S.C. § 2254(e)(1); see AI-Bihani, 590 F.3d at

878. And after a state court conviction becomes final, it is

subject to a "presumption of regularity," such that "[i]f that

conviction is later used to enhance a [federal] criminal

sentence, the defendant generally may not challenge the

enhanced sentence through a petition under § 2254 on the

ground that the prior conviction was unconstitutionally

obtained." Lackawanna Cty. Dist. Att Y v. Coss, 532 U.S. 394,

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403-04 (2001); see also Parke v. Raley, 506 U.S. 20, 30

(1992) (same for enhancement of a state court sentence).2

Just as principles of vertical comity and federalism

justify presumptions in favor of state court judgments in

ordinary criminal habeas proceedings, see Sumner v. Mata,

449 U.S. 539, 547 (1981), the horizontal separation of powers

justifies a presumption in favor of official Executive branch

records in Guantanamo habeas proceedings. The district court

is uniquely qualified to determine the credibility of hearsay,

and the presumption of regularity does not detract from that

role. But courts have no special expertise in evaluating the

nature and reliability of the Executive branch's wartime

records. For that, it is appropriate to defer to Executive branch

expertise. See Boumediene, 553 U.S. at 796-97 ("In

2 Even the particular presumption at issue in this case-the

presumption that an official government record was accurately

produced-applies in ordinary criminal habeas cases. See Hobbs v.

Blackburn, 752 F.2d 1079, 1081 (5th Cir. 1985) ("Official records,

such as this signed [state court guilty plea], are entitled to a

presumption of regularity and are accorded great evidentiary

weight" in a federal habeas proceeding.); see also Walker v.

Maggio, 738 F.2d 714, 717 (5th Cir. 1984) ("minute entry of the

[state] court" is entitled to a "presumption of regularity");

Thompson v. Estelle, 642 F.2d 996, 998 (5th Cir. 1981) ("The

district court could properly rely on the regularity of the state

court's documents in preference to Thompson's own self-serving

testimony."); Webster v. Estelle, 505 F.2d 926, 929-30 (5th Cir.

1974) (indictment and docket sheet are entitled to presumption of

regularity). The same presumption applies to official government

records in a probation revocation proceeding, a circumstance like

habeas in which liberty is on the line. See United States v. Thomas,

934 F.2d 840, 846 (7th Cir. 1991) (probation officer's report);

United States v. Verbeke, 853 F.2d 537, 539 (7th Cir. 1988)

(treatment center's report); United States v. Callum, 677 F.2d 1024,

1026 (4th Cir. 1982) (same).

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considering both the procedural and substantive standards

used to impose detention to prevent acts of terrorism, proper

deference must be accorded to the political branches."). Both

the Constitution and cOmn1on sense support judicial modesty

when assessing the Executive's authority to detain prisoners

during wartime, for it is an area in which the jUdiciary has the

least competence and the smallest constitutional footprint.

Our dissenting colleague concludes the presumption of

regularity should not extend to official intelligence reports

because he imagines the presumption of regularity is just a

shortcut for crediting the work product of official processes

we know to be "transparent, accessible, and often familiar,"

Dissenting Op. at 3, and because he thinks we know relatively

little about how intelligence reports are created, id. at 4-5.

Both premises are false. Courts regularly apply the

presumption to government actions and documents that result

from processes that are anything but "transparent,"

"accessible," and "familiar." The presumption of regularity is

founded on inter-branch and inter-governmental comity, not

our own judicial expertise with the relevant government

conduct. In Riggs National, we presumed a foreign

government entity's receipt to be reliable without pretending

it was produced by a "familiar" or "transparent" process. Id.

at 3; see 295 F.3d at 20-22. Likewise, federal courts need no

expertise concerning the procedures of state courts, probation

offices, and drug treatment centers to afford their official

records a presumPti.on of regularity. See cases cite~

note 2. Thanks to the explanatory declarations _

_ which we discuss below, see infra at 21-22, we

~r more about the personnel, process, and standards

involved in producing intelligence records like the Report

than we do about the foreign and state governmental organs

whose records we also presume to be reliable, and we have no

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reason to suspect such documents are fundamentally

unreliable. 3

Rather than cast doubt on the viability of the presumption

of regularity in this context, our only pertinent post-

Boumediene discussion of the presumption strongly suggests

its continuing viability. In Al-Bihani, the detainee complained

that the district court had "erred by .,. presuming the

accuracy of the government's evidence." 590 F.3d at 875.

Without isolating the components of AI-Bihani's multifaceted

procedural argument-it included attacks on the standard of

review, the denial of a full-blown evidentiary hearing, alleged

burden-shifting, and the district court's discovery orders-we

said that his "argument clearly demonstrate [d] [his own]

error" and that Boumediene's holding had placed it on "shaky

ground." Id. at 876. Without explicitly confirming that the

district court had applied a presumption in favor of the

Government's evidence in that case, we noted that its case

management order "reserved the district court's discretion,

when appropriate, to adopt a rebuttable presumption in favor

of the accuracy of the government's evidence." Id. at 869-70.

We implied that the district court had in fact exercised this

discretion when we quoted the order with approval in our

hearsay analysis. Id. at 880 ("[T]he Court will determine, as

to any evidence introduced by the Government, whether a

presumption of accuracy and/or authenticity should be

accorded."). Consistent with this order, we noted, the district

no Its

....u~."' ...... E:!'"'....'"''"'

would be used in litigation. Instead, the Government

was seeking accurate, actionable intelligence to protect the country

from imminent attack. The Government had the strongest incentive

to produce accurate reports and no incentive to frame innocent

bystanders as Taliban operatives.

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court had judged the "admissions presented by the

government to be 'credible and consistent. '" Id. Indeed, the

district court relied on "certain statements by the petitioner

that the Court finds credible and certain classified documents"

without entertaining the possibility that the detainee's

statements had been mis-reported. Al Bihani v. Obama, 594 F.

Supp. 2d 35, 38-39 (D.D.C. 2009). We did not distinguish the

presumption of regularity from the admission of hearsay

evidence generally, but we noted that "had the district court

imposed stringent standards of evidence in the first instance,

the government may well have been obligated to go beyond

AI-Bihani's interrogation records and into the battlefield to

present a case that met its burden," Al Bihani, 590 F.3d at

877-78, and we "disposed of' "[t]he rest of AI-Bihani's

procedural claims ... without extended discussion," id. at

881. Although AI-Bihani does not clearly hold the district

court may accord government evidence a presumption of

regularity, that case is certainly consistent with today's

holding.

Although it was decided under the pre-Boumediene

Detainee Treatment Act of 2005 (DTA), our opinion in

Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008), also lends

support to the continuing viability of such a presumption. In

Parhat, we noted that the DTA incorporated by reference a

"rebuttable presumption that the Government Evidence is

genuine and accurate." Id. at 847 (quotation marks omitted)

(quoting Implementation of Combatant Status Review

Tribunal Procedures at E-l § G(11) (July 29, 2004)). We

reversed the Tribunal's decision because the Government's

evidence, despite the presumption in its favor, could not

"sustain the determination that Parhat is an enemy

combatant." 532 F.3d at 847. The intelligence consisted of

anonymous hearsay in the form of unsupported "bottom-line

assertions," so it was impossible for us to "assess the

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reliability of the assertions in the documents." Id. We

explained that "[i]f a Tribunal cannot assess the reliability of

the government's evidence, then the 'rebuttable' presumption

becomes effectively irrebuttable." Id. Although we found the

presumption rebutted in Parhat, we cast no doubt on the

propriety of such a presumption in the Guantanamo context.

Parhat still "sets the guideposts for our inquiry into the

reliability of the [Government's] evidence in a detainee's

habeas case." Bensayah v. Obama, 610 F.3d 718, 725 (D.C.

Cir. 2010) (quoting Barhoumi v. Obama, 609 F.3d 416, 428

(D.C. Cir. 2010)). And neither the Supreme Court nor our

court has ever rejected the presumption we analyzed in that

case.

Our dissenting colleague points to four more recent cases

to defend his view that intelligence documents like the Report

in this case are undeserving of a presumption of regularity.

Dissenting Op. at 10-12 (citing Barhoumi, 609 F.3d 416,

Bensayah, 610 F.3d 718, Al Alwi v. Obama, - F.3d - , No.

09-5125, 2011 U.S. App. LEXIS 14991 (D.C. Cir. July 22,

2011), and Khan v. Obama, - F.3d - , No. 10-5306, 2011

U.S. App. LEXIS 18471 (D.C. Cir. Sept. 6, 2011)). But we

had no occasion to apply such a presumption in any of these

cases, and none of them limits our discretion to do so under

Boumediene.

In Barhoumi, we considered a Government intelligence

report containing a translation of a diary. Although we

affirmed the district court's favorable treatment of the

Government's evidence, 609 F.3d at 428-31, we did not

apply a presumption of regularity. The reason for that

omission is simple. The district court had credited the

Government's evidence without applying a presumption of

regularity, and we were reviewing for clear error. See Brief of

Respondents-Appellees at 52, Barhoumi, 609 F.3d 416 (No.

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09-5383), ECF No. 1236093 (observing that "the district

court did not presume the accuracy or authenticity of the

government's evidence"). True, the Government's brief

interpreted the criminal cases on which Barhourni relied as

"acknowledg[ing] that, absent 'unusual circumstances,' a

translation is assumed to be accurate" in "criminal

proceedings governed by the Confrontation Clause and the

Federal Rules of Evidence." Id. at 45-46 (quoting United

States v. Martinez Gaytan, 213 F.3d 890, 892 (5th Cir. 2000)

and United States v. Vidacek, 553 F.3d 344, 352 (4th Cir.

2009)). But the Government did not ask us to apply any such

presumption to its evidence. Indeed, the Government noted

those criminal cases were "clearly distinguishable." Id. at 45.

We agreed. The cases Barhoumi relied on related to the

question of admissibility, which we observed was irrelevant

in the Guantanamo habeas context since all hearsay is

admissible. We rejected the detainee's contention that

deficiencies in the translation rendered it unreliable. See

Barhoumi, 609 F.3d at 431. We certainly did not deny the

possibility that a presumption of accuracy might apply in the

habeas context-we simply were not confronted with that

question. Our opinion in Barhoumi therefore cannot bind us

to the dissent's view that the constitutional right to habeas

precludes any presumption in favor of an official intelligence

report. "Constitutional rights are not defined by inferences

from opinions which did not address the question at issue."

Texas v. Cobb, 532 U.S. 162, 169 (2001); see also Lopez v.

Monterey Cty, 525 U.S. 266, 281 (1999) ("[T]his court is not

bound by its prior assumptions."); cf Ariz. Christian Sch.

Tuition Org. v. Winn, 131 S. Ct. 1436, 1448-49 (2011)

("When a potential jurisdictional defect is neither noted nor

discussed in a federal decision, the decision does not stand for

the proposition that no defect existed. The Court would risk

error if it relied on assumptions that have gone unstated and

unexamined." (citations omitted)); Brecht v. Abrahamson,

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507 U.S. 619, 631 (1993) ("[S]ince we have never squarely

addressed the issue, and have at most assumed the

applicability of the Chapman [' harmless beyond a reasonable

doubt'] standard on habeas, we are free to address the issue

on the merits. ").

For the same reason, we cannot extract from Bensayah,

Al Alwi, or Khan the dissent's proposed bar on evidentiary

presumptions for intelligence reports. As in Barhoumi, the

Government did not request a presumption of regularity in

any of these appeals. See Brief of Respondents-Appellees at

38-39, Bensayah, 610 F.3d 718 (No. 08-5537); Brief of

Respondents-Appellees at 34--38, Al Alwi, - F.3d - (No.

09-5125); Brief of Respondents-Appellees at 45-58, Khan, -

F.3d - (No. 10-5306). Thus, the court appropriately

refrained from addressing the viability of such a presumption

in each of those cases. See Rumber v. District of Columbia,

595 F.3d 1298, 1302 (D.C. Cir. 2010) ("[W]e follow our

usual practice of declining to reverse the district court based

on arguments that the appellant did not raise."); United States

v. Vizcaino, 202 F.3d 345, 348 (D.C. Cir. 2000) ("Because

[the defendant] failed to preserve the argument for appeal, we

review ... at most for plain error." (emphasis added)). Absent

relevant arguments, none of these cases can be read to

foreclose a presumption of regUlarity for government

documents in general or intelligence reports in particular.

Apart from its precedential argument, the dissent frets

that "in practice" the presumption of regularity will compel

courts to rubber-stamp government detentions because it

"suggest[ s] that whatever the government says must be

treated as true." Dissenting Op. at 19 (quoting Parhat, 532

F.3d at 849). That fear is unfounded. Again, the presumption

of regularity, if not rebutted, only permits a court to conclude

that the statements in a government record were actually

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made; it says nothing about whether those statements are true.

And while the presumption applies to government records, it

does not apply only to the government's evidence. If a

detainee introduces a govemlnent record to support his side of

the story-as has been done in the past, see, e.g., Awad, No.

09-5351, slip op. at 8 ("In support of his petition, Awad

introduced into evidence ... additional statements he made to

his interrogators")-he can benefit from the presumption as

well. Finally, the presumption likely will never playa larger

role in the resolution of a case than it does here (because the

reliability of the Report is the central dispute), and even here,

the presumption is not dispositive.

A body of judge-made law is not born fully formed, like

Athena from the head of Zeus. It grows gradually, developing

little by little in response to the facts and circumstances of

each new case. Until now, we have not had to decide whether

the common-law presumption of regularity applies in

Guantanamo habeas proceedings. This case finally forces the

issue because Latif challenges only the reliability of the

Report, and because the Government persists in its request for

a presumption of regularity on appeal. 4 We hold that in

4 The Government's argument for a presumption of regularity

is unambiguous. Observing that "[i]t is well established that there is

a strong 'presumption of regularity' for actions of government

officials taken in the course of their official duties," Appellants' Br.

30 (quoting United States v. Chemical Found., Inc., 272 U.S. 1, 14-

15 the Government that the expert descriptions I

"should have been

CotlSIdlere:d III presumption that government

officials are properly carrying out their duties." Id. Developing this

argument by analogy, the Government that "the factors

supporting [the] accuracy" of

"even stronger than in the immIgratIOn CODltext"

agent "cannot be presumed to be ... other an accurate

recorder" of the alien's statement. Id. at 30-31 (quoting Espinoza v.

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Guantanamo habeas proceedings a rebuttable presumption of

regularity applies to official government records, including

intelligence reports like the one at issue here.

B

Because the Report is entitled to a presumption of

regularity, and because the Report, if reliable, proves the

lawfulness of Latif s detention, we can only uphold the

district court's grant of habeas if Latif has rebutted the

Government's evidence with more " evidence of his

own. 5 Viewed together, both

_ and the other

~ to meet this burden.

INS, 45 F.3d 308, 311 (9th Cir. 1995)). The dissent's claim that our

holding goes "well beyond what the government actually argues in

its briefs" is unfounded. Dissenting Op. at 9.

5 We need not decide precisely how much more the detainee

must show to overcome the presumption of regularity. Depending

on the circumstances, courts have required litigants to meet

standards ranging from "clear and specific evidence," Riggs Nat 'I,

295 F.3d at 21 (tax), to "clear and convincing evidence," Riggins v.

Norris, 238 F.3d 954, 955 (8th Cir. 2001) (habeas); see also United

States v. Armstrong, 517 U.S. 456, 464 (1996) ("clear evidence")

(selective prosecution); Dep't of Labor v. Triplett, 494 U.S. 715,

723 (1990) ("[A ]necdotal evidence will not overcome the

presumption of regularity") (effective assistance of counsel); cf

Sussman, 494 F.3d at 1117 (noting a "less stringent standard"

applies in at least some FOIA cases (quoting Nat'l Archives &

Records Admin. v. Favish, 541 U.S. 157, 174 (2004))). Even if we

assume a detainee may overcome the presumption by a mere

preponderance of the evidence, Latif cannot meet that standard.

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1

SECRET 22 SECRET

we

an

hn'iliTP"'i3r, report involves just one level

hearsay-that of the interrogator. 590 F.3d at 879. Like the diary

translated in Barhoumi and unlike the anonymous hearsay in

Parhat, are "the underlying

reporting on s assertions are founded. "

Barhoumi 609 F.3d at 428. The act of translation "does not affect

II!NM status." Al-Bihani, 590 F.3d at 879; see

Bar oumi, 609 .3 at 430-31. And, as Parhat and Al-Bihani

demonstrate, courts are capable of determining whether official

government records that contain hearsay merit the presumption of

regularity.

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SECRET 26 SECRET

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2

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III

The district court issued its decision in this case a week

after we published our opinion in AI-Adahi v. Obama, 613

F.3d 1102 (D.C. Cir. 2010). We observed that "[o]ne of the

oddest things" about that case was that "despite an extensive

record and numerous factual disputes, the district court never

made any findings about whether AI-Adahi was generally a

credible witness or whether his particular explanations for his

actions were worthy of belief." Id. at 1110. The district

court's analysis in this case suffers from the same omission.

Because the court relied in part on Latif s declaration in

discrediting the Report, see Latif, 2010 U.S. Dist. LEXIS

83596, slip op. at 26 ("[T]he Court cannot credit [the Report]

because ... Latif has presented a plausible alternative

story."), the district court was obligated to consider his

credibility. Only a credible story could overcome the

presumption of regularity to which the Report was entitled.

The court's failure to make a credibility finding is especially

puzzling where the inCUlpatory and eXCUlpatory versions of

the detainee's story ov so that the factfinder is forced to

.l.lJ5.le the detainee's

I.UU..... story _

do~

t o ' s credibility when she

professed that the family and friends gathered around her bed

had been with her in Oz. See THE WIZARD OF Oz (MGM

1939) ("Of course we believe you, Dorothy."). The district

court, by contrast, mustered only a guarded finding of

SECRET 32 SECRET

plausibility. See Latif, 2010 U.S. Dist. LEXIS 83596, slip op.

at 26.

La~if makes two main arguments in defense of the district

court's decision to proceed without an explicit finding of

credibility. First, he argues that the court did in fact believe

his declaration even though its opinion did not use those

words. Second, he argues no credibility determination is

necessary because the district court relied on the inherent

weakness of the Government's evidence to discredit it.

Neither argument has merit.

A

The closest the district court's opinion comes to making a

credibility determination is in its statements that Latif's story

was "plausible" and "not incredible." Id., slip op. at 26-27. A

story may be "plausible" or "not incredible" and yet be very

unlikely. Cf Uthman v. Obama, 637 F.3d 400,406 (D.C. Cir.

2011) ("Uthman's account ... involves many coincidences

that are perhaps possible, but not likely."). A judgment about

credibility, by contrast, measures the truthfulness of the

speaker or the likelihood. that what he says is true. See

RICHARD HOOKER, THE LAWS OF ECCLESIASTICAL POLITY bk.

II, ch. 4, at 151-52 (George Edelen ed., Harvard Univ. Press

1977) (1594) ("[T]hings are made credible, eyther by the

knowne condition and qualitie of the utterer, or by the

manifest likelihood of truth which they have in themselves.").

Thus, neither of the district court's statements is equivalent to

a finding that Latif's declaration is more likely true than false.

On this, we are all agreed. See Dissenting Op. at 30.

By definition, a "plausible" statement is one "seeming

reasonable, probable, or truthful"; it may in reality have only

"a false appearance of reason or veracity." OXFORD ENGLISH

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DICTIONARY ONLINE, http://www.oed.comJview/Entry/

145466 (definition 4.a) (emphasis added) (last visited June

16, 2011). A plausible explanation does not necessarily

compel credence. See Zamanov v. Holder, No. 08-72340, -

F.3d - , 2011 U.S. App. LEXIS 8886, at *12 (9th Cir. Apr.

29, 2011) ("[Petitioner's] explanation ... is plausible.

However, the record does not compel the finding that the

[Immigration Judge's] unwillingness to believe this

explanation ... was erroneous."). It is when a detainee tells a

plausible story that an evaluation of his credibility is most

needed. There may be several plausible explanations for

Latifs itinerary; it is the district court's job to decide whether

the Government's explanation is more likely than not. See Al-

Adahi, 613 F .3d at 1110 ("Valid empirical proof requires not

merely the establishment of possibility, but an estimate of

probability." (quoting DAVID HACKETT FISCHER, HISTORIANS'

FALLACIES: TOWARD A LOGIC OF HISTORICAL THOUGHT 53

(1970))).

Likewise, to say Latif s tale is "not incredible" is not to

imply its teller ought to be believed. At best, the district

court's statement means a reasonable finder of fact could

believe Latifs story, not that he has actually done so. Cf

United States v. Wooden, 420 F.2d 251, 253 (D.C. Cir. 1969)

("The appellant's story was not incredible; indeed, the jury

seems to have accepted it, at least in part.... "). Different

factfinders may come to different conclusions about whether

to credit evidence that is "not incredible" as a matter of law.

Other statements in the district court's opinion confirm

that it did not reach a decision on Latifs credibility. For

example, the court rejected the Government's "contention that

Latif must be lying," Latif, 2010 U.S. Dist. LEXIS 83596, slip

op. at 27 (emphasis added), while assiduously avoiding any

determination that Latif was not lying. The court speculated

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more than once that the inconsistencies in his statements

"may be the result of a misstatement or a mistranslation,"

without ever making a finding to that effect. Id., slip op. at 27

(emphasis added); id. ("The smaller inconsistencies ... may

be no more than misstatements or mistranslations." (emphasis

added)). Likewise, the court found that "Latif did have an

injury ... for which he might therefore have sought

treatment." Id., slip op. at 28 (emphasis added); see also id.,

slip op. at 6 n.4 (citing Latif s "alternative explanation for not

having his passport at the time he was seized," without

deciding whether that explanation is more likely than the

Government's incriminating explanation). The district court

provided no indication that it actually believed Latif s story

and instead noted the story's "inconsistencies and unanswered

questions." Id., slip op. at 27.

B

The district court's decision gives us no reason to believe

it would have reached the same result had it not relied on

Latifs "plausible" version of the relevant events. The court

said it could not "credit"

partly "because ... Latif

story to explain his travel." Id., slip op. at 26. Instead of

advancing from plausibility to a judgment about Latif s

the court ted its

re on

basis for rejecting_

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story "plausible," not credible, the court merely established

the possibility, not the probability, that Latifs story was true.

And without a "comparative judgment about the evidence,"

there is no finding of fact for this court to review. AI-Adahi,

613 F.3d at 1110.

By forgoing a determination of credibility for one of

plausibility, the district court replaced the necessary factual

finding with a legal conclusion that some other reasonable

factfinder might believe Latif s story. In other words, the

district court took on the role of a reviewing court, assuming

in effect that Latif already had been found credible and then

applying a deferential standard of review to that imaginary

finding. Cf A wad, 608 F.3d at 7 ("[I]f the district court's

account of the evidence is plausible in light of the record

viewed in its entirety, the court of appeals may not reverse

it."). We cannot allow the district court to bypass its

factfinding role in favor of an appellate standard of review.

Cf Anderson v. United States, 632 F.3d 1264, 1269-70 (D.C.

Cir. 2011) (noting that the district court may not apply the

appellate court's standard of review in crafting its own

sentence). And since "de novo factfinding is inconsistent with

[an appellate court's] proper role," United States v.

Brockenborrugh, 575 F.3d 726, 746 (D.C. Cir. 2009), we are

at an impasse.

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In sum, the district court's failure to resolve

the key question of [the lead witness's]

credibility makes it impossible for us to

perform our appellate function. "The purpose

of an appeal is to review the judgment of the

district court, a function we cannot properly

perform when we are left to guess at what it is

we are reviewing. " We therefore vacate the

district court's order and remand for further

proceedings consistent with this opinion.

United States v. Holmes, 387 F.3d 903, 907-08 (D.C. Cir.

2004) (quoting United States v. Williams, 951 F.2d 1287,

1290 (D.C. Cir. 1991)).

C

On remand, the district court may consider any relevant,

admissible evidence to aid its evaluation of Latirs credibility.

If Latif again declines an opportunity to testify, that is another

fact bearing on his credibility. Although the district court's

factual findings may be supported by documentary evidence

no less than by oral testimony, see Barhoumi, 609 F.3d at

423-24, a civil party's decision not to testify may support an

adverse inference about his credibility, see Mitchell v. United

States, 526 U.S. 314, 328 (1999) ("The Fifth Amendment

does not forbid adverse inferences against parties to civil

actions when they refuse to testify in response to probative

evidence against them."). Latif argues "it would make no

sense to require an adverse inference in habeas cases in which

the petitioner declines to testify while prohibiting such

inferences in criminal cases." Appellee's Br. 52. This neglects

the crucial point that the rule for criminal cases is based on

the Fifth Amendment privilege against self-incrimination. See

Mitchell, 526 U.S. at 316. That privilege has no application

outside the criminal context, and a Guantanamo habeas

SECRET 38 SECRET

petitioner is not entitled to the same constitutional safeguards

as a criminal defendant. Cf A l-Bihani, 590 F .3d at 879

("[T]he Confrontation Clause applies only in criminal

prosecutions and is not directly relevant to the habeas

setting."). Especially where a detainee's own self-serving

statements comprise the only evidence against the

Government's case, his refusal to testify is relevant to the

district court's credibility determination. 12

IV

"[A] court considering a Guantanamo detainee's habeas

petition must view the evidence collectively rather than in

isolation." Salahi v. Obama, 625 F.3d 745, 753 (D.C. Cir.

2010). A habeas court's failure to do so is a legal error that

we review de novo, separate and apart from the question of

whether the resulting findings of fact are clearly erroneous in

themselves. See Al-Adahi, 613 F.3d at 1111 ("[T]he district

court clearly erred in its treatment of the evidence and in its

view of the law. The court's conclusion was simply not a

permissible view of the evidence. And it reached this

conclusion through a series of legal errors."). Under Al-Adahi,

a detainee is not entitled to habeas just because no single

piece of evidence is sufficient by itself to justify his detention.

613 F.3d at 1105-06. It follows that a habeas court may not

ignore relevant evidence, for a court cannot view collectively

evidence that it has not even considered.

12 On appeal, Latif retorts that the Government did not put on

witnesses either. 's Br. 51. This misses the .

contrast, every to

purpose of his visit. His failure to testify and subject

himself to cross examination therefore undermines his credibility.

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Perhaps because it had already denied the Government's

key evidence a presumption of regularity, the district court

committed both errors, explaining away some of the

individual contradictions and coincidences in Latif's story

one by one, as if each stood alone, and ignoring other

probative details altogether. In AI-Adahi, we reversed the

district court's grant of habeas because the court had failed to

consider all the evidence in context. Viewing the evidence as

a whole, we concluded the Government had proven the

detainee "was more likely than not part of al-Qaida." Id. at

1111. Although we do not reach an ultimate conclusion on the

merits in this case, the district court's similar treatment of the

evidence in this case provides an alternative basis for remand.

The district court's unduly atomized approach is

illustrated by its isolated treatment (or failure to consider)

several potentially incriminating inferences that arise from

evidence Latif himself offers in support of his petition-

namely, ~ similarities between Latif's exculpatory

story and _ (b) the route Latif admits traveling, and

(c) contradICtIons in Latif's exculpatory statements. In

",,,.n"T,·r, ... the district court . declined to consider

court

1 " . . " T••r·1

of weighing this evidence in

A

story so hard to swallow is

t its nA~...aC''''''A,...,rI,a...,,'a

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B

Nor did the district consider that Latif's

e to a

distinctive path used by al Qaeda members can be probative

evidence that the traveler was part of al Qaeda." Uthman, 637

F.3d at 405 (citing Al Odah, 611 F.3dat 16). At Guantanamo,

more than a year after his capture, Latif told his interrogators

he flew from Sana' a, Yemen to Karachi, Pakistan in early

2001 with a plane ticket Ibrahim gave him. From there he

took a bus to Quetta, Pakistan and a taxi to Kandahar,

Afghanistan as Ibrahim had instructed. Then Ibrahim took

him by taxi to Kabul, where Latif said he spent five months in

the religious study center. 14 This route has been well traveled

by al-Qaida and Taliban recruits and by our precedent. See

Uthman, 637 F.3d at 405 (noting that Uthman's route from

Sana' a to Karachi by plane, from Karachi to Quetta by bus,

14 Although Latifs more recent declaration in the district court

leaves out some of these details, he does not deny taking this route.

Indeed, Latif cites the consistency of his Guantanamo

interrogations as evidence that his current story is true. Appellee's

Br. 18-22. Latifs recent declaration confirms he took a bus to

Quetta and a taxi from Quetta to Afghanistan, and then stayed in

Kabul before returning to Pakistan.

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from Quetta to a Taliban office by taxi, and from there to

Kandahar "is similar to the paths of admitted al Qaeda

members"); Al Odah, 611 F.3d at 10, 12 (noting that a similar

"route used by al Odah was a common travel route for those

going to Afghanistan to join the Taliban"). The record in this

case is replete with interrogation summaries of other Yemeni

detainees who followed the same route to Afghanistan.

Instead of focusing on Latif s route, the district court

observed that "[n]o other detainee told interrogators that he

fled from Afghanistan to Pakistan, from Tora Bora or any

other location, with Latif." Latif, 2010 U.S. Dist. LEXIS

83596, slip op. at 26. That is true. But the court overlooked

the implications of Latif s own subsequent admissions about

the route he traveled. IS This is relevant evidence, and it

should have factored into the district court's decision. The

court's failure even to consider it is a legal error that compels

remand.

c

IS a

evidence we called for in AI-Adahi. But as

with the other evidence, the district court examined some

15 The district court did not, as the dissent suggests, "treat[]

[this] evidence as more akin to traveling along 1-95 than a lonely

country road." Dissenting Gp. at 35. The court did not consider it at

all.

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contradictions in isolation from the rest of the evidence and

overlooked others altogether.

The court gestured obliquely to what it characterized as

"smaller inconsistencies" that it concluded "may be no more

than misstatements or mistranslations." Id. Apparently, the

court found it unnecessary to get to the bottom of these

contradictions because "even if some details of Latif's story

have changed over time, for whatever its

fundamentals have remained the same." Id.

statements,

court's reasoning neglects "the well-settled principle that

false exculpatory statements are evidence-often strong

evidence-of guilt." AI-Adahi, 613 F.3d at 1107. Thus, even

if a given inconsistency in a detainee's story does not go to

the central question of his involvement with the Taliban or al-

Qaida, it may be relevant nonetheless to the court's evaluation

of his credibility, which in turn bears .on the reliability of the

Government's evidence. Cf United States v. Philatelic

Leasing, Ltd., 601 F. Supp. 1554, 1565 (S.D.N.Y. 1985)

(citing the principle, "which Wigmore has described as 'one

of the simplest in human experience,'" that "when a litigating

party resorts to 'falsehoods or other fraud' in trying to

establish a position, the court may conclude the position to be

without merit and that the relevant facts are contrary to those

asserted by the party") (quoting 2 John Henry Wigmore,

Evidence § 278, at 133 (1979)).

court

o In on (in

which he claimed to be too disabled to fight) Latif said he

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"spent three months at the Islamic Jordanian Hospital in

Amman, Jordan," Petitioner's Decl., ~ 3, but his own medical

records reveal that he was released just five days after

admission. The court· made no explicit finding about the

source of this inconsistency, and it failed to mention that Latif

himself testified before the Combatant Status Review

Tribunal that he was "treated . . . for five days," ISN 156

CSRT Tr. at 8, a fact that is surely relevant to the credibility

of Latif s recent declaration.

The court failed even to mention other incongruities

among the stories Latif has told his interrogators. Latif has

said that he stayed with a doctor in Kabul, but also that he

stayed in a religious study center there; that Latif was arrested

at the Pakistani border fleeing Afghanistan, but also that he

was arrested at a hospital in Pakistan; that he paid for his

medical treatment, but also that he could not pay; that

Ibrahim's charitable organization is called Jamiat an-Nur, but

also that it is called Gameiat al Hekma or, alternatively, Jam-

SECRET 45 SECRET

eiah Islam. Even if some of the inconsistencies in Latif's

story "may be," as the district court suggested about others,

"no more than misstatements or mistranslations," Latif, 2010

U.S. Dist. LEXIS 83596, slip op. at 27, viewed together with

the rest of the evidence they undermine the credibility of

Latif's declaration. "We do not say that any of these

particular pieces of evidence are conclusive, but we do say

that they add to the weight of the government's case against

[the detainee] and that the district court clearly erred in

tossing them aside." AI-Adahi, 613 F.3d at 1110.

D

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16 We do not ''find[J'' that this evidence "do[ es] in fact

implicate" Latif, as the dissent accuses us of doing. Dissenting Op.

at 2. Rather, we hold the district court's findings suspect in that the

court "failed to take into account" related evidence when it made

those findings. AI-Adahi, 613 F.3d at 1108.

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E

In a recent case, we held "the location and date of [the

detainee's] capture, together with the company he was

keeping, strongly suggest that he was part of al Qaeda."

Uthman, 637 F.3d at 405. The Yemeni detainee in that case

was captured in December 2001 with at least five other

Yemeni men, two of whom were confessed al-Qaida

members, at the Afghan-Pakistani border near Tora Bora, a

cave complex in Eastern Afghanistan that was, at that time,

the site of a battle between al-Qaida and the United States. Id.

Analogous details in the circumstances of Latif s capture

should have been weighed in combination with the rest of the

Government's incriminating evidence.

Latif admits that he was captured in "late 2001" after

- being led across the Afghan border into Pakistan, Appellee's

Br. 7, and he confmned to his Guantanamo interrogators that

an Afghan guide led him across the border. The record

contains no direct evidence about Latif s route from Kabul to

the Pakistani border.

,,""'U'~.I."""'~ court con\.l.lU~..J.\.IU

tImIng from Kabul is not sufficient to

create an inference that he was involved in fighting." Id., slip

op. at 27 (emphasis added). This is exactly the formulation we

criticized in AI-Adahi. In that case the district court concluded

"AI-Adahi's attendance at an al-Qaida training camp 'is not

sufficient to carry the Government's burden of showing that

he was a part' of al-Qaida." 613 F.3d at 1105 (emphasis

added). We cited that statement as an example of the court's

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having "wrongly 'required each piece of the government's

evidence to bear weight without regard to all (or indeed any)

other evidence in the case." Id. at 1105-06. The district court

commits exactly the same "fundamental mistake" in this case

by considering the time and place of Latifs capture in

isolation from the rest of the evidence. Id. at 1106. The

question to ask is not whether the circumstances of Latif s

capture are sufficient by themselves to prove he was part of

the Taliban, but whether, in combination with the rest of the

evidence, they make that conclusion more likely than not.

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The dissent admits the circumstances of Latif's flight

from Afghanistan are helpful to the Government's case, but

contends they may not be very helpful since, for all we know,

his route was frequented by non-combatants too. Dissenting

Op. at 33-35. This bold speculation is beyond our purview as

an appellate court, and the district court did not suggest it had

so much as considered the possibility. (Indeed, the record

contains no evidence to support the dissent's theory.) At this

juncture, all we can say is that the location and timing of

Latif's exodus is relevant evidence, and the district court

erred by considering his route in isolation and ignoring the

similarly situated detainees' altogether.

F

To summarize, in addition to viewing Latif's own

statements in isolation, the district court ignored the probative

value of (1) Latif's familiar, four-leg route to Kabul;

(2) Latif's CSRT testimony that he was hospitalized for just

five instead of three months as he now claims'

a court's

opinion that any of these facts infonned its conclusion about

the Government's evidence. In light of our application of the

presumption of regularity, there can be no question on remand

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but that all of this evidence must be considered-and

considered as a whole.

The dissent makes much of the fact that, contrary to the

usual practice, we do not assume the court considered all the

evidence it failed to mention. Dissenting Op. at 43-44. If that

is true, the result flows from the unusual posture of this case.

Even in the typical he-saidlshe-said case-in which two people

provide conflicting statements-the court must conduct a close

and precise balancing of the evidence to reach a valid result.

In detainee cases the difficulties are heightened because it is a

he-saidlhe-said case-the same person provides both the

incriminating and exculpatory statements. Thus the Al Adahi

formulation becomes critical.

The district court's failure to address certain relevant

evidence leaves us with no confidence in its conclusions

about the evidence it did consider. For example, the district

court implicitly rejected evidence that Latifs purported

benefactor, Ibrahim AI-Alawi, is actually Ibrahim Ba'alawi,

known as Abu Khalud, an al-Qaida facilitator. Other

detainees have described Ibrahim Ba'alawi in much the same

Ba' alawi arranged their travel along the same route Latif took

to Afghanistan, lived in Kandahar as Latif s benefactor did,

and arranged for their attendance at military training camps.

Although noting the similarities between Ibrahim Ba' alawi

and the Ibrahim AI-Alawi who appears in Latif's current

story _ the district court implicitly concluded

they ~ men on the basis of exculpatory

statements Latif made _ Latif makes

much of the fact tha~t name from

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Ba'alawi, not just a variant spelling, and at least seven

detainees reported their recruiter's name as Ba'alawi or some

variant thereof. But such a minor phonetic mistake could

easily result from a translation or transcription error. 18 It does

not negate altogether the probative value of this link between

Latif s current and a known recruiter

was a person

without ever finding that to be so.

Even if the district court had made a clear finding in

Latifs favor about Ibrahim's identity, we could not affirm it

on this record. Since the probability of one asserted fact is

conditioned upon the likelihood that related facts are true, we

cannot uphold the district court's evaluation of a particular

piece of evidence that is susceptible to more than one

interpretation when the court has ignored related evidence.

On remand, the district court has an opportunity to

evaluate all the evidence as a whole. In the event of another

appeal following that evaluation, we would have to decide

whether, in light of all the evidence, we are left with "the

definite and firm conviction that a mistake has been

committed." Almerfedi, - F.3d -, 2011 U.S. App. LEXIS

18 Indeed, as the district court acknowledged, the recruiter is

identified as Alawi in another detainee's interrogation report. The

district court dismissed this evidence, observing that in another

case, the district court had discredited this detainee's statement

about an unrelated detail-the timing of another detainee's arrival

at a guesthouse-because it conflicted with other detainees'

statements. Latif, 2010 U.S. Dist. LEXIS 83596, at *26 n.10, slip

op. at 19 n.10 (citing Abdah v. Obama, 717 F. Supp. 2d 21, 35

(D.D.C.2010)).

SECRET 52 SECRET

11696, at *23. In its current posture, this case does not require

us to answer that difficult question. 19

v

Although the district court committed the same errors

here as in AI-Adahi, the evidence before us presents a closer

question than we faced in that case and our subsequent

reversals. Cf Almerfedi, - F.3d - , 2011 U.S. App. LEXIS

11696; Uthman, 637 F.3d at 400. And the Government s it

has discovered new evidence

_ that neither the rllC'TM'"'T

occaSlOn to consider.

As the dissenters warned and as the amount of ink spilled

in this single case attests, Boumediene's airy suppositions

have caused great difficulty for the Executive and the courts.

See 553 U.S. at 824-26 (Roberts, C.l, dissenting); id. at 827-

28 (Scalia, J., dissenting). Luckily, this is a shrinking category

of cases. The ranks of Guantanamo detainees will not be

replenished. Boumediene fundamentally altered the calculus

of war, guaranteeing that the benefit of intelligence that might

be gained-even from high-value detainees-is outweighed by

the systemic cost of defending detention decisions. Id. at 828

(Scalia, l, dissenting). While the court in Boumediene

19 Judge Henderson would reverse the district court's grant of

habeas corpus outright. In her view, "remand is unnecessary

because 'the record permits only one resolution of the factual

issue.'" Concurring Op. at 12 (quoting Pullman-Standard v. United

Steel Workers of Am., AFL-CIO, 456 U.S. 273, 292 (1982)).

Because of the legal errors we have both identified, I find it

unnecessary to decide that question. Remand is warranted not only

when "further fact-finding by the district court is necessary," but

also when it "would be helpful." Al Alwi, 2011 U.S. App. LEXIS

14991, at *9. This is such a case.

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expressed sensitivity to such concerns, it did not find them

"dispositive." Id. at 769. Boumediene's logic is compelling:

take no prisoners. Point taken.

In light of the district court's expertise as a fact finder

and judge of credibility, I am reluctant to reach the merits

before the district court has had an opportunity to apply the

controlling precedent. But see Concurring Op. at 12

("[F]urther factfinding will be a waste of time and judicial

resources."). We therefore vacate and remand the district

court's grant of habeas for further proceedings. On remand

the district court must consider the evidence as a whole,

bearing in mind that even details insufficiently probative by

themselves may tip the balance of probability, that false

exculpatory statements may be evidence of guilt, and that in

the absence of other clear evidence a detainee's self-serving

account must be credible-not just plausible-to overcome

presumptively reliable government evidence.

So ordered.

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KAREN LECRAFT HENDERSON, Circuit Judge, concurring in the

judgment:

Although I agree with Judge Brown's analysis and therefore

concur in the judgment of remand, I write separately to respond

to the dissent and to explain that, in my view, the better course

would be to simply reverse the district court's grant of habeas

corpus relief to the detainee Adnan Farhan Abd Al Latif. The

dissent attacks Judge Brown's majority opinion on three

grounds. The first two grounds are related: the dissent claims

that there is no clear error in the district court's opinion,

Dissenting Op. at 2, 20-45 and that we have arrived at the

contrary conclusion-finding clear error-only by

"undertak[ ing] a wholesale revision ofthe district court's careful

fact findings," and "suggest[ ing] [our] own story," Dissenting

Op. at 2, 32; see id. at 32-39. As discussed below, however, the

dissent misunderstands the clear error standard of review and its

application to this case. The dissent also claims that our use of

the presumption of regularity "moves the goal posts" and "calls

the gmne in the government's favor." Dissenting Op. at 2, 19.

As also set forth below, however, the dissent's high-pitched

rhetoric not only ignores the safeguards under which we have

already endorsed-albeit not explicitly-the presumption of

regularity but also fails to understand how the presumption of

regularity in fact aids the reliability inquiry of hearsay evidence.

Finally, I believe remand for further factfinding will be a

pointless exercise. Assuming he decides to testify, Latif cannot

persuasively counter the presumption of regularity. Nor can he

overconle the long odds against his exculpatory narrative by

testifying, as his' declaration already tells his story and any

embroidery thereof will only work against him. Accordingly, I

concur in the remand judgment only.

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I.

This appeal hinges on one question: did the district court

correctly find the government's key piece of evidence

unreliable? See Abdah v. Obama (Latif), No. 04-1254,2010 WL

3270761, at *9, slip op. at 25 (D.D.C. July 21, 2010). "The

question whether evidence is sufficiently reliable to credit is one

we review for clear error," Al Alwi v. Obama, --- F.3d ----, 2011

WL 2937134, at *6 (D.C. Cir. July 22,2011), and ordinarily this

standard of review creates little controversy.

The clear error standard requires us to reverse a factual

finding if" 'on the entire evidence' " we are" 'left with the

definite and firm conviction that a mistake has been

committed.' "Anderson v. City ofBessemer, 470 U.S. 564, 573

(1985) (quoting United States v. Us. Gypsum Co., 333 U.S.

364, 395 (1948)). The dissent first claims that we cannot

legitimately find clear error here, relying on our precedent that

"[w]here there are two permissible views of the evidence, the

factfinder's choice between them cannot be clearly erroneous,"

Awad v. Obama, 608 F.3d 1, 7 (D.C. Cir. 2010) (internal

quotations omitted), cert. denied, 131 S. Ct. 1814 (2011), and

that "[t]he task of resolving discrepancies among the various

accounts offered into evidence is quintessentially a matter ...

for the district court sitting as the fact-finder," Al-Madhwani v.

Obama, 642 F.3d 1071, 1076 (D.C. Cir. 2011) (internal

quotations omitted). See Dissenting Op. at 20, 31. But the

dissent apparently forgets that the quoted passages describe only

the starting point for clear error review. Granted, the district

court has wide latitude to resolve factual disputes-but only

within certain bounds. We must assure ourselves that the district

court's finding is "permissible" or "plausible in light of the

record viewed in its entirety." Anderson, 470 U.S. at 574. In

both Awad and Al-Madhwani, we examined the evidentiary

bases for the district court's factual findings and, finding them

SECRET 3 SECRET

within the range of "permissible" inferences to be drawn from

the evidence, concluded that the district court had not clearly

erred. See Awad, 608 F.3d at 6-9; AI-Madhwani, 642 F.3d at

1076. But in both Awad and AI-Madhwani, unlike here, the

district court's permissible inferences were based on the record

in its entirety-not on the view that one side's evidence,

standing in isolation, is plausible.

The dissent seems to suggest that ifLatifs story "on its own

terms[] is not 'intrinsic [allyJ implausible,' " then we cannot

review the district court's evaluation of the government's key

piece of evidence or other pieces of evidence. Dissenting Op. at

30,32. It is not enough, however, for the district court to base its

factual findings on some evidence in the record. The clear error

standard authorizes us to reverse a finding, not unless, but

" 'although there is evidence to support it.' " Anderson, 470

U.S. at 573 (quoting Us. Gypsum Co., 333 U.S. at 395)

(emphasis added); see also Easley v. Cromartie, 532 U.S. 234,

257 (2001) (finding clear error even where "record contains a

modicum of evidence offering support for the District Court's

conclusion"). Where the record contains conflicting evidence,

then, the clear error standard requires us, as the reviewing court,

to assess the comparative weight of the evidence both for and

against the district court's finding. It may be that the evidence

relied upon by the district court is insufficiently probative to

sustain its finding. See, e.g., Easley, 532 U.S. at 247, 250, 257

(clear error where statistical evidence "too small to carry

significant evidentiary weight," testimony did not provide "more

than minimal support" and other evidence did not "significantly

strengthen" district court's finding). Or the evidence may be

outweighed by other, more persuasive evidence. See, e.g.,

Anderson, 470 U.S. at 575 (credibility finding clearly erroneous

if"[ dJocuments or objective evidence ... contradict the witness'

story"); us. Gypsum Co., 333 U.S. at 396 (clear error

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"[w]here . . . testimony is in conflict with contemporaneous

documents"). The dissent is simply wrong to equate Judge

Brown's careful and complete review of the record

evidence-which finds Latif s version both minimally

probative, Majority Op. at 45-46, and decisively outweighed by

the government's evidence, id. at 20-31-with a "wholesale

revision of the district court's careful fact findings," Dissenting

Op. at 2.

With the clear error framework in mind, there is no

difficulty in that the district court cle erred in

to credit

to on ty

we ac a government record, see Majority Op. at 6-20.

At the same time, the district court gave undue emphasis both to

SECRET 5 SECRET

and to Latif s "plausible"

...... "...,.........,,,.. veexp tra ,Latif,2010WL3270761,

at *9, slip op. at 26. The second error is especially glaring not

only in light of the district court's failure to make any finding

regarding Latifs credibility, see AI-Adahi v. Obama, 613 F.3d

1102, 1110 (D.C. Cir. 2010) (by "sp[ eaking] only of a possible

alternative explanation" for detainee's actions and failing to

"make any finding about whether this alternative was more

likely than the government's explanation," district court failed

to make any "comparative judgment about the evidence [that] is

at the heart of the preponderance standard of proof' (internal

quotations omitted)), cert. denied, 131 S. Ct. 1001 (2011), but

also in light of the inconsistencies between Latif s alternative

explanation-as set forth in his declaration submitted to the

district court-and his earlier statements

see Majority Op. at

conSI eVIdence taken as a whole," A wad, 608

F .3d at 7, I, like Judge Brown, cannot help but conclude that the

district court's finding regarding the unreliability o~

coupled with its finding regarding the mere plau~

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Latif s story is neither "permissible" nor "plausible in light of

the record viewed in its entirety," Anderson, 470 U.S. at 574.

of regularity to_ II.

The dissent also asserts that application of the presumption

"disturbs" the "careful and conscious

balance of the Important interests at stake" we have struck in

past detainee decisions for admitting and assessing the reliability

of hearsay evidence. Dissenting Op. at 12. Judge Brown

thoroughly disposes of the assertion-laying out in detail that,

while we have not heretofore enunciated the presumption of

regularity, we have all but done so. See Majority Op. at 14-20.

And we most assuredly are not "discard[ing] the unanimous,

hard-earned wisdom" of district courts that have assessed

hearsay evidence in detainee cases. Dissenting Op. at 13. To the

contrary, sound evidentiary considerations warrant incorporating

the presumption of regularity-in the careful manner we

expressly do today-into the district court's overall reliability

assessment of these records as we routinely do with others,

including the point that the facts supporting the presumption of

regularity have significant probative force in their own right, as

discussed below.

Moreover, our holding does nothing to disturb the existing

framework for hearsay evidence. All hearsay evidence "must be

accorded weight only in proportion to its reliability." Barhoumi

v. Obama, 609 F.3d416, 427 (D.C. Cir. 2010). The district court

assesses reliability in the first instance, see Parhat v. Gates, 532

F.3d 834, 847-48 (D.C. Cir. 2008), and in so doing must

consider whatever "indicia of reliability" the hearsay evidence

manifests as well as any" 'additional information' "bearing on

the question of reliability. Bensayah v. Obama, 610 F.3d 718,

SECRET 7 SECRET

725-26 (D.C. Cir. 2010) (quoting Parhat, 532 F.3d at 849).3 The

district court considers a wide range offactors-recognizing that

anyone of several "hearsay dangers" might render the hearsay

unreliable, see Williamson v. United States, 512 U.S. 594, 598

(1994) ("The declarant might be lying; he might have

misperceived the events which he relates; he might have faulty

memory; his words might be misunderstood or taken out of

context by the listener."). Information "relayed through an

3 Parhat also requires that hearsay evidence "be presented in a

form, or with sufficient additional information, that permits the ...

court to assess its reliability." 532 F.3d at 849. As Barhoumi notes,

however, the quoted passage has more to do with the form than with

the substance of hearsay evidence: "the problem with the intelligence

reports at issue in Parhat was that they failed to provide 'any of the

underlying reporting upon which the documents' bottom-line

assertions are founded,' thus inhibiting our ability to evaluate the

reliability of those assertions." 609 F.3d at 428 uot' Parhat, 532

F.3d at 846-47)).

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interrogator's account" presents an additional "level of technical

hearsay because the interrogator is a third party unavailable for

cross examination." AI-Bihani v. Obama, 590 F.3d 866, 879

(D.C. Cir. 2010), cert. denied, 131 S. Ct. 1814 (2011). The

presumption of regularity does not come into play with respect

to many aspects of hearsay, however; for example, it does not

vouch for assertions made about a detainee by a third party nor

does it answer the reliability inquiry if the detainee claims he

was coerced in making admissions. Rather, the presumption

touches on only one dimension of reliability: "it presumes the

government official accurately identified the source and

accurately sumlnarized his statement, but it implies nothing

about the truth of the underlying non-government source's

statement." Majority Op. at 10. Thus it addresses only the

question whether the "interrogator's account,"AI-Bihani, 590

F.3d at 879, faithfully records the underlying statement. See,

e.g., United States v. Smith, 521 F.2d 957, 964-65 (D.C. Cir.

1975) ("it is presumed that [the police officer] accurately

transcribed and reported [the witness's] story" but "complaining

witness' [s] description of the crime, recorded by the police

officer in his report, . . . does not deserve the presumption of

regularity").

The Federal Rules of Evidence, which carve out exceptions

to the general rule against hearsay on the ground that "some

kinds of out-of-court statements are less subject to ... hearsay

dangers," Williamson, 512 U.S. at 598, make certain public

records admissible, using "the assumption that a public official

will perform his duty properly" as well as "the reliability factors

underlying records of regularly conducted activities generally."

Fed. R. Evid. 803(8) advisory committee's notes (1972

Proposed Rules). Granted, in detainee habeas cases, the Rules do

not decide the admissibility of hearsay evidence. Barhoumi, 609

F.3d at 422 (rejecting as "counter to this court's [precedent]" the

SECRET 9 SECRET

claim of error in admission of hearsay evidence "absent a

demonstration by the government that they fall within an

established hearsay exception in the Federal Rules of

Evidence"). But because the presumption of regularity is based

on much the same rationale as the public records exception, see

United States v. Chern. Found., 272 U.S. 1,15 (1926)

(presumption applies because "courts presume that [public

officers] have properly discharged their official duties."); cf

Legille v. Dann, 544 F.2d 1, 7 n.39 (D.C. Cir. 1976)

(presumption of due delivery of the mail and presumption of

regularity in government agency's handling thereof "have a

common origin in regularity of action"), the facts supporting the

presumption of regularity carry significant probative force in

their own right. 4 See Legille, 544 F.2d at 9 ("The facts giving

rise to the presumption [of procedural regularity] would also

have evidentiary force, and as evidence would command the

respect normally accorded proof of any fact."); Webster v.

Estelle, 505 F.2d 926, 930 (5th Cir. 1974) ("The same special

reliability that warrants relaxing the hearsay rule as to [public

records] also warrants according them great evidentiary

weight."), cert. denied, 421 U.S. 918 (1975); Stone v. Stone, 136

F.2d 761, 763 (D.C. Cir. 1943) ("[T]he basic fact that public

officials usually do their duty . . . has . . . that quality and

quantity of probative value to which it is entitled, entirely apart

from any presumption; just as is true of any other fact which is

based on common experience."); Alsabri v. Obarna, 764 F.

4While the facts surrounding hearsay evidence may not always

justify applyin the p tion of regularity, it is prop lied

here because

SECRET 10 SECRET

~.D.C. 2011) ("The fact that _

_ were prepared by government agents In

the course of their normal intelligence gathering duties provides

a degree of support for their reliability."). The presumption of

regularity thus embodies a common-sense judgment about the

general reliability of hearsay evidence memorialized in a

government record. And the district court's failure to apply the

presumption of regularity is an error going to the heart of the

"careful and fine-grained approach to the assessment of

reliability," Dissenting Op. at 13, it is required to undertake.

N or does the requirement that a challenger offer "clear or

specific evidence" to defeat the presumption of regularity, Riggs

Nat'l Corp. v. Comm'r, 295 F.3d 16, 21 (D.C. Cir. 2002),

somehow short-circuit the district court's reliability analysis, as

the dissent suggests. Dissenting Op. at 9-10. It is well

established that clear error can occur if a district court fails to

credit otherwise reliable evidence on the basis of insignificant

gaps therein. See, e.g., Almerfedi v. Obama, --- F.3d ----, 2011

WL 2277607, at *5 (D.C. Cir. June 10, 2011) ("district court

clearly erred in regarding [hearsay evidence] as unreliable"

because of "inconsequential" "discrepancy in dates"). Requiring

a challenger to produce "clear or specific evidence"-that is,

evidence with real probative force-to defeat the presumption

of regularity prevents a district court from relying on minor

discrepancies to reject a government record. At the same time

it disc s the kind of .

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SECRET 12 SECRET

III.

Based on the considerations outlined above-as well as

Judge Brown's comprehensive opinion-I believe the district

court clearly erred in failing to credit _ Unlike my

colleague, however, I also believe reman~se for further

factfinding will be a waste of time and judicial resources. Judge

Brown believes remand-with the possibility that Latif might

choose to testify-is necessary to allow the district court to

correctly weigh Latif's credibility. See Majority Op. at 36-38.

While I agree that the district court erred in failing to assess

Latif's credibility, Majority Op. at 31-38-for "[a]tno point did

the court make any finding about whether [Latif's narrative] was

more likely than the government's explanation," Al-Adahi v.

Dbama, 613 F.3d at 1110-1 also believe remand is unnecessary

because "the record permits only one resolution of the factual

issue," Pullman-Standardv. United Steel Workers ofAm., AFL-

CID, 456 U.S. 273, 292 (1982); see Easley, 532 U.S. at 257

(finding clear error and reversing because "we do not believe

that providing appellees a further opportunity to make their ...

arguments in the District Court could change th[e] result").

The apparent premise behind Judge Brown's argument

for remand is that Latif might of testimon so compelling that

Mer

it would shake our confidence and overcome any

doubt about Latif's credibility. But w at testimony could

possibly accomplish so much? If Latif were to repeat on the

stand the same unpersuasive assertions he made in his

declaration-assertions that are inconsistent with his earlier

court wou e no

'-U'.."Jv .. ~eve

him. "Credibility involves more than demeanor" and

instead "apprehends the over-all evaluation of testimony in light

of its rationality or internal consistency and the manner in which

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it hangs together with other evidence." United States v. McCoy,

242 F.3d 399, 408 n.15 (D.C. Cir.) (internal quotations omitted),

cert. denied, 534 U.S. 872 (2001); see also Anderson, 470 U.S.

at 575 ("[F]actors other than demeanor and inflection go into the

decision whether or not to believe a witness. Documents or

objective evidence may contradict the witness' story; or the

story itself may be so internally inconsistent or implausible on

its face that a reasonable factfinder would not credit it. "). If, on

the other hand, Latif were to change his story once again on

remand, the very fact that he "made inconsistent statements ...

would tend to undermine his credibility." United States v.

Stover, 329 F.3d 859,867-68 (D.C. Cir. 2003), cert. denied, 541

U.S. 1018 (2004). Latifs credibility would suffer even if he

largely repeated the story in his declaration but also decided to

embellish it with additional detai

_-because" statements omIt

:= are inconsistent if it would have been

'natural' for the witness to include them in the earlier

statement." United States v. Stock, 948 F.2d 1299, 1301 (D.C.

Cir. 1991). In short, Latif could only dig himself deeper into a

hole on remand. 6 Because the record can reasonably be viewed

in only one way-that is, against him-I would not remand

simply to give Latif a shovel but would instead conclude the

litigation with the only result the evidence allows: that the

government has indeed "shown that Latif is part of Al Qaeda or

6Indeed, even Latif's continued failure to testify would likely

work against him. Majority Op. at 37-38; see Mitchell v. United

States, 526 U.S. 314, 328 (1999) (" '[T]he Fifth Amendment does not

forbid adverse inferences against parties to civil actions when they

refuse to testify in response to probative evidence offered against

them.' " (quoting Baxter v. Palmigiano, 425 U.S. 308,318 (1976))).

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the Taliban." Latif, 2010 WL 3270761, at *1, slip op. at 3.

SECRET SECRET

Judge, dissenting: The government's

.L...,...,vJ.J...,"J.J.ts' Br. 10, is a single

out parties arguments a Report's internal and

external indicia of reliability, the district court found it "not

sufficiently reliable to support a finding by a preponderance

of the evidence that Latif was recruited by an Al Qaeda

member or trained and fought with the Taliban." Abdah

(Latif) v. Obama, No. 04-cv-01254, slip op. at 25 (D.D.C.

July 21, 2010). According to the district court, "there is a

tion as to whether the [Report] accurately reflects

the incriminating facts in the [Report] are not

UV.l."~V'U.. and Latif has presented a plausible alternative

story to explain his travel." Id. at 26. The government

concedes that its case for lawfully detaining Latif "turn [s]" on

the Report. Appellants' Br. 5. This, then, represents a first

among the Guantanamo habeas appeals in this circuit: never

before have we reviewed a habeas grant to a Guantanamo

detainee where all concede that if the district court's fact

findings are sustained, then detention is unlawful. Cf

Almerfedi v. Obama, No. 10-5291, 2011 WL 2277607, at *4-

5 (D.C. Cir. June 10, 2011) (reversing habeas grant and

finding detention lawful based on conceded facts and facts

found by the district court); Uthman v. Obama, 637 F.3d 400,

402 (D.C. Cir. 2011) (same); AI-Adahi v. Obama, 613 F.3d

1102, 1103, 1111 (D.C. Cir. 2010) (same).

But rather than apply ordinary and highly deferential

clear error review to the district court's findings of fact, as

this circuit has done when district courts have found the

government's primary evidence reliable, the court, now

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facing a finding that such evidence is unreliable, moves the

goal posts. According to the court, because the Report is a

government-produced document, the district court was

required to presume it accurate unless Latif could rebut that

presumption. Maj. Op. at 11. In imposing this new

presumption and then proceeding to find that it has not been

rebutted, the court denies Latif the "meaningful opportunity"

to contest the lawfulness of his detention guaranteed by

Boumediene v. Bush, 553 U.S. 723, 779 (2008).

Compounding this error, the court undertakes a wholesale

revision of the district court's careful fact fmdings. Flaws in

the Report the district court found serious, this court now

finds minor. Latif s account, which the district court found

plausible and corroborated by documentary evidence, this

court now "hard to swallow" Maj. Op. at 39. _

=

the district court

court now finds do in fact

implicate him. And ,pn and on, all without ever concluding

that the district court's particular take on the evidence was

clearly erroneous. But see Fed. R. Civ. P. 52(a)(6) ("Finding

of facts, whether bas~d on oral or other evidence, must not be

set aside unless clear,ly erroneous .... ").

In Part I, I explain why the district court committed no

error in declining to apply a presumption of regularity to the

Report. In Part II, I apply the deferential clear error standard

this circuit has used throughout these Guantanamo habeas

cases. Finding no clear error, I would affirm the district

court's grant of the writ of habeas corpus.

I.

All agree that this case turns on whether the district court

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correctly found that the government's key piece of evidence,

the Report, was unreliable. And all agree that the "question

whether evidence is sufficiently reliable to credit is one we

review for clear error." Al Alwi v. Obama, No. 09-5125,2011

WL 2937134, at *6 (D.C. Cir. July 22, 2011). Our

disagreement centers on whether the district court was

required to afford the Report a presumption of regularity.

The presumption of regularity stems from a humble

proposition-that "[public officers] have properly discharged

their official duties." Sussman v. u.s. Marshals Serv., 494

F.3d 1106, 1117 (D.C. Cir. 2007) (quoting United States v.

Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)). The contours

of the presumption are best understood by how courts

typically apply it. For example, courts assume that "official

tax receipt[s]" are properly produced, Riggs Nat'l Corp. v.

Comm'r, 295 F.3d 16, 21 (D.C. Cir. 2002), that state court

documents accurately reflect the proceedings they describe,

Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir. 1985), that

mail was duly handled and delivered, Legille v. Dann, 544

F.2d 1, 7 n.39 (D.C. Cir. 1976), and that agency actions in the

ordinary course of business are undertaken on the basis of

fact, Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402, 415 (1971) (citing Pacific States Box & Basket Co.

v. White, 296 U.S. 176, 185 (1935)).

These cases-in fact every case applying the presumption

of regularity-have. ~omething in common: actions taken or

documents produced within a process that is generally reliable

because it is, for example, transparent, accessible, and often

familiar. As a result, courts have no reason to question the

output of such pr0gesses in any given case absent specific

evidence of error. Such a presumption rests on common

sense. For instance, courts have no grounds to credit a

defendant's allegation that "the state court trial docket" or

8ECRET 4 8ECRET

"the waiver of trial by jury form" contain inaccurate

information when that defendant has no support other than a

self-serving allegation. See Thompson v. Estelle, 642 F .2d

996, 998 (5th Cir. 1981) (noting that the "district court could

properly rely upon the regularity of the state court's

documents in preference to [the appellant's] self-serving

testimony"). Courts presume accuracy because they can trust

the reliability of documents produced by such processes.

Courts and agencies are hardly infallible, but for the most part

we have sufficient familiarity and experience with such

institutions to allow us to comfortably rely on documents they

produce in the ordinary course of business.

In saying that "[c]ourts regularly apply the

presumption ... [to] processes that are anything but

'transparent,' 'accessible,' and 'familiar,' " Maj. Op. at 13,

this court cites a single case where we presumed the accuracy

of a tax receipt from the Central Bank of Brazil for purposes

of claiming foreign tax credits under the Internal Revenue

Code. See id. at 13 (citing Riggs Nat'/ Corp., 295 F.3d at 20-

22). As the Supreme Court has held, the presumption of

regularity applies to "the actions of tax officials," and the

"records of foreign public officials." See Riggs Nat '/ Corp.,

295 F.3d at 20 (citing Supreme Court cases). But again, this is

because we have no reason to question or be concerned with

the reliability of such records.

By contrast, the Report at issue here was produced in the

fog of war by a clandestine method that we know almost

nothing about. It is not familiar, transparent, generally

understood as reliable, or accessible; nor is it mundane,

quotidian data akin to state court dockets or tax receipts.

Its output, a intelligence report,

was, in this court sown ared in stressful and

chaotic conditions, filtered through interpreters, subject to

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transcription errors, and heavily redacted for national security

purposes." Maj. Op. at 6. Needless to say, this is quite

different from assuming the mail is delivered or that a court

employee has accurately jotted down minutes from a meeting.

To support its approach here, this court invokes

presumptions of regularity for state court fact-finding and for

final judgments in criminal habeas proceedings. See id. at 12-

13. Aside from the abstract and uncontroversial proposition

that courts should be sensitive to the separation of powers as

well as to federalism, id. at 12, the analogy makes little sense.

State court judgments and fact findings arise out of a formal

and public adversarial process where parties generally have

attorneys to zealously guard their interests, and where neutral

state court judges, no less than" federal judges, pledge to apply

the law faithfully. That federal courts give a presumption of

regularity to jUdgments and fact findings that emerge from

such a process, where criminal defendants have ample

opportunity to challenge adverse evidence, see Lackawanna

Cnty. Dist. Atty v. Coss, 532 U.S. 394, 402-03 (2001),

provides no reason for habeas courts also to presume the

accuracy of intelligence reports

prepared in war. statutory habeas,

where federal review follows state court proceedings,

constitutional habeas is the only process afforded

Guantanamo detainees. Cf Boumediene, 553 U.S. at 780 ("It

appears that the common-law habeas court's role was most

extensive in cases of pretrial and noncriminal detention,

where there had been little or no previous judicial review of

the cause for detention. Notably, the black-letter rule that

prisoners could not controvert facts in the jailer's return was

not followed (or at least not with consistency) in such

cases.").

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In its analysis, this court ignores a key step in the logic of

applying a presumption of regularity, namely, that the

challenged document emerged from a process that we can

safely rely upon to produce accurate information. Reliability,

not whether an official duty was performed, cf Maj. Op. at 6,

is the touchstone inquiry in every case this court cites. For

example, in a probation revocation decision by the Seventh

Circuit-which, incidentally, never uses the term "regularity,"

see United States v. Thomas, 934 F .2d 840 (7th Cir. 1991)-

the court found that the probation report "was of the type that

generally carries a presumption of reliability," id. at 846

(emphasis added). A probation officer not only "testified [and

was cross-examined]· about the preparation, maintenance, and

interpretation of special reports prepared by the probation

office" but also "applied that ... knowledge to [the report at

issue]." Id. at 842. Given that testimony, and given also that

"the district court. , . had reviewed the report 'many times,' "

the Seventh Circuit saw no reason to think the report was

"inaccurate." Id. at 846. Reinforcing its emphasis on the

importance of ~sses.~~ng reliability, the Seventh Circuit cited

an earlier decision, United States v. Verbeke, where it had

found admissible a report produced by a drug treatment center

because the report was found to be "reliable," because the

defendant had an opportunity to cross-examine its author, and

because no evidence discredited it. 853 F.2d 537, 539 (7th

Cir. 1988). These decisions do not, as this court now does, ask

only whether an official duty was regularly performed; rather,

they examine the reliability of the proffered evidence and the

process that produced it. As yet another decision the court

cites puts it, courts will permit "the introduction of

'demonstrably reliable' hearsay evidence in probation

revocation proceedings." United States v. McCallum, 677

F.2d 1024, 1026 (4th CiT. 1982) (emphasis added).

SECRET 7 SECRET

To be sure, the

declaration

is, nor anywhere near

or expenence with that course of business that

would allow us to comfortably make presumptions about

whether the output of that process is reliable. Cf Bismullah v.

Gates, 501 F.3d 178, 185-86 (D.C. Cir. 2007) (finding that it

was "not at all clear" that even the Combatant Status Review

Tribunal was "entitled to a presumption of

regularity ... because a CSRT does not have the transparent

features of the ordinary administrative process and the

[military officer charged with obtaining and reviewing

evidence] is not the final agency decisionmaker"). Of course,

we may take some assurance from the fact that the Executive

Branch acts in good faith when carrying out its duties. But the

very point of Boumediene is to ensure that detainees have a

"meaningful opportunity" to subject the Executive's detention

decisions to scrutiny by an independent Article III court.

This is not to say that reports similar to the one at issue

here are necessarily unreliable. Perhaps after careful scrutiny

district courts will conclude that many are reliable. See, e.g.,

Khan v. Obama, No. 10-5306, 2011 WL 3890843, at *4-5

(D.C. Cir. Sept. 6, 2011). My point is far more lTIodest:

because we are unfamiliar with thIS highly secretive process,

and because we have no basis on which to draw conclusions

about the general reliability of its output, we should refrain

from categorically affording it presumptions one way or the

other. This approach does not reflect "skeptic[ism]" or

"cynic[ism]" about the Executive Branch, Maj. Op. at 8-it is

nothing more than what Boumediene directs us to do. See

SECRET 8 SECRET

Boumediene, 553 U.S. at 786 (requiring habeas court "to

assess," not presume, "the sufficiency of the Government's

evidence" (emphasis added)). And indeed, from time

immemorial courts have been skeptical of hearsay evidence

without implying bad faith or cynicism about the Executive

(or whoever is attempting to present that evidence).

Nor am I suggesting that district courts should give no

weight to sworn declarations officials that

such

a

's reliability.

For one thing, it suggests fact authentic,

i.e., that it rec;tlly i~ an Relying on

similar declaration~, many courts have heard

Guantanamo h,\beas cases-including the district court here-

have adopted a presumption of authenticity for government

records like the Report even while consistently rejecting a

presumption that su~h records are accurate. See, e.g., Alsabri

v. Obama, 764 F. Supp. 2d 60, 66-67 & n.8 (D.D.C. 2009);

Hatim v. Obama, 677 F. Supp. 2d 1, 10 (D.D.C. 2009),

vacated on other grounds, F.3d 720 (D.C. Cir. 2011); Ahmed

v. Obama, 613 F. Supp. 2d 51, 54-55 (D.D.C. 2009). But see,

e.g., Al Kandari v. United States, 744 F. Supp. 2d 11, 19-20

(D.D.C. 2010) (declining to adopt a presumption of either

authenticity or accuracy). Going one step further, habeas

courts might also properly rely on the analogy between

intelligence reports and business records to conclude that

"[t]he fact that these reports were prepared by government

agents in the course of their normal intelligence gathering

duties provid~s a degree of support for their reliability."

Alsabri, 764 F. Supp. 2d at 68. I thus have no problem with

SECRET 9 SECRET

the observation, made in a decision cited by the concurrence,

Con. Op. at 10, that "the basic fact that public officials usually

do their duty ... has ... that quality and quantity of probative

value to which it is entitled." Stone v. Stone, 136 F.2d 761,

763 (D.C. Cir. 1943). As that decision goes on to say,

however, "the probative strength of the evidence is for the

[factfinder] to consider." Id. Nor do I quarrel with the

observation t records

of inCUlpatory

are more to evidence than

uV'''''.U.l.J.V,l.I.'-''' reporting third-party (and sometimes anonymous)

hearsay.

But this court goes well beyond these modest

conclusions-and well beyond what the government actually

argues in its briefs-when it relies on the bare fact that

government official~ have incentives to maintain careful

intelligence reports as a reason to require district courts to

presume that such reports are not only authentic, but also

accurate, despite circumstances casting their reliability into

serious doubt. See Appellants' Br. 30-31 (arguing in passing

that the district court, in this case erred by failing to give any

weight to the general presumption that government officials

carry out their duties properly but never urging adoption of a

categorical, burden-shifting presumption of regularity);

Appellants' Reply Br. 22-24 (same). One need imply neither

bad faith nor lack of incentive nor' 'tude on the of

SECRET 10 SECRET

reliable, transparent, or accessible to warrant an automatic

presumption of regularity.

It is thus not at all surprising that our court has never

before applied the presumption of regularity in Guantanamo

Bay habeas cases despite numerous opportunities to do so.

For instance, in Barhoumi, the government, seeking to

establish that the petitioner was "part of' an al Qaida

associated militia, relied on an intelligence report that

included an English translation of a diary allegedly authored

by a member of that militia. Barhoumi v. Obama, 609 F.3d

416, 420 (D.C. Cir. 2010). Among other challenges to this

evidence, we considered petitioner's argument that the

government's failure to make a copy of the diary available in

its original Arabic or to provide information regarding the

qualifications or motives of the translator raised doubts about

reliability. A!though we characterized this objection as

"troubling" and ."accept[ed] that the additional layer of

hearsay added by the diary's translation render[ ed] it

somewhat less reliable than it otherwise would [have] be[ en]

(particularly if the government had provided information

regarding its translation)," we nonetheless reviewed the

diary's internal and external indicia of reliability and

concluded that the district court had not clearly erred by

relying on it. Id. at 430-32. Had we believed that a

presumption of regularity applied to the translation recorded

in the intelligence report, none of that extended analysis

would have been necessary. Instead, we would have simply

presumed the docum~nt' s accuracy-and expected the district

court to do the same. As my colleagues begrudgingly admit,

Maj. Op. at 16-17, that is exactly what the government asked

us to do in Barhoumi, but to no avail. See Appellees' Br. 52,

Barhoumi, 609 F.3d 416 (No. 09-5383) (arguing that

"translations are presumed to be accurate in the absence of

evidence to the contrary" (emphasis added)).

SECRET 11 SECRET

We followed exactly the same playbook in Bensayah and

Al Alwi, two cases in which we reviewed district court

reliability determinations about

vernment ~'~Jl~""''''.L.l.F">'''''''''

v.

. In Bensayah,

rather than granting the government's evidence a presumption

of regularity on the grounds that it consisted of government

records regularly kept, we carefully evaluated other evidence

purporting to corroborate the document's contents, ultimately

concluding that the district court committed clear error by

finding that document reliable. See id. at 726-27. Nor did we

apply a presumption o .ulari in Al Alwi even though the

re

government's evidenc consisted of interrogation

summaries allegedly reportIng t e petitioners' own statements

and even those documents had indicia of

reliability deed, in Al

Alwi we a .PI court must take

the absence of corroboration into account in assessing the

reliability of petitioner's out-of-court statements," Al Alwi,

2011 WL 2937134, at *6 (emphasis added)-that directly

conflicts with this court's observation that "[b]y definition, a

presumptively reliable record needs no additional

corroboration unless the presumption is rebutted." Maj. Op. at

35.

And most recently, in Khan v. Obama, we reviewed the

district court's finging that the government's informant

reports were reliable. Again, rather than applying a

presumption of regularity, we spent page after page carefully

evaluating the reliability of the reports. In affirming the

district court's determination that the documents were

reliable, we emphasized external indicia of reliability, such as

SECRET 12 SECRET

photographs and items seized from petitioner's home, as well

as detailed government declarations explaining why the

reports were reliable. Khan, 2011 WL 3890843, at *7-10.

Our approach in Barhoumi, Al Alwi, Bensayah, and Khan

reflects a ·careful and conscious balancing of the important

interests at stake. While federal courts typically exclude

hearsay unless it falls within a specific exception, see Fed. R.

Evid. 803, we understand that in the context of enemy

combatant proceedings such evidence may be the best

available. Barhoumi, 609 F.3d at 427. Thus, rather than acting

on our deep, historically rooted skepticism of hearsay by

excluding such evidence altogether, we admit it but are

careful to assign it no more weight than it is worth as

measured by any available indicia of reliability. See id.

(holding that hearsay evidence is "always admissible" in such

proceedings, bVt tha.~ it "must be accorded weight only in

proportion to its reliability"); see also AI-Bihani v. Obama,

590 F.3d 866,. 879 (D.C. Cir. 2010). The presumption of

regularity, which· this court expressly premises on

"defer[ence] to Executive branch expertise," Maj. Op. at 12-

13, disturbs this car~~l balance, substituting a presumption in

place of careful district court "review and assess[ment of] all

evidence from both ~ides." AI-Bihani, 590 F.3d at 880. Given

the degree to whIch our evidentiary procedures already

accommodate the government's compelling national security

interests by admitting all of its evidence, including hearsay;

given the heightened risk of error and unlawful detention

introduced by requiring petitioners to prove the inaccuracy of

heavily redacted government documents; and given the

importance of preserving "the independent power" of the

habeas court "to assess the actions of the Executive" and

carefully weigh its evidence, id., I find this court's departure

from our practice deeply misguided.

SECRET 13 SECRET

To be clear, I make no claim that anything in Barhoumi,

Bensayah, Al Alwi, Khan, or any of our other Guantanamo

habeas cases affirmatively rules out the possibility of applying

a rebuttable presumption of accuracy to certain kinds of

government evidence in some circumstances. My point is

only that our cases, proceeding in the very common-law-like

fashion that my colleagues describe, see Maj. Op. at 19, have

endorsed and applied a careful and fine-grained approach to

the assessment of reliability. We have applied that approach

to claims that a document was mistranslated (Barhoumi) and

to claims that a document is insufficiently corroborated (AI

Alwi, Khan )-two of the issues in this case. We have applied

that approach to a (Bensayah,

Al A and to .

~

_ we

(Barhoumi, Al Alwi, ,Khan) and overturned (Bensayah) district

court findings that a government document is reliable. The

only feature of this case not previously encountered is that

here the government lost: the district court found the

dispositive gov~rnment Report unreliable and granted a writ

of habeas corpus.

Moreover, the presumption discards the unanimous, hard-

earned wisdom of our district judges, who have applied their

fact-finding expertise to a wide array of government hearsay

evidence. In doing so, they have developed a uniquely

valuable perspective that we ought not so quickly discard.

These judges, including the district judge in this case, have

unanimously rejected motions to give government evidence a

presumption of accuracy. See, e.g., Alsabri, 764 F. Supp. 2d at

66 (noting "ample reason" to decline to presume the accuracy

of the goverrn;nent's exhibits and explaining that circuit

precedent supported its approach); Al Kandari, 744 F. Supp.

2d at 19 ("Simply assuming the Government's evidence is

SECRET 14 SECRET

accurate and authentic does not aid [the reliability] inquiry.");

Ahmed, 613 F. Supp. 2d at 55 ("[T]here is absolutely no

reason for this Court to presume that the facts contained in the

Government's exhibits are accurate."); see also Benjamin

Wittes, Robert M. Chesney & Larkin Reynolds, The

Emerging Law of Detention 2.0, at 52 (May 12, 2011)

(indicating that "none of the publicly available rulings on the

issue have favored the government"),

available at http://www.brookings.edu/papers/2011105_guant

anamo_ wittes.aspx. Rather than ignoring serious doubts about

government evidence by presuming its accuracy, our district

courts have instead done exactly what we expect of careful

factfinders and precisely what our case law demands:

scrupulously assess the reliability of each piece of evidence

by applying "a long, non exclusive list of factors ... such as:

consistency or inconsistency with other evidence, conditions

under which tp~ exhibit and statements contained in it were

obtained, accuracy or translation and transcription, personal

knowledge of [the] declarant ... , levels of hearsay,

recantations, etc." Ahmed, 613 F. Supp. 2d at 55; see also

Sulayman v. Obam(l, 729 F. Supp. 2d 26, 42 (D.D.C. 2010)

("As to many of the intelligence reports [the government]

relies upon . . . there is nothing in the record regarding the

qualifications of the interpreters used in those interrogations

to render a reliable interpretation. There are other intelligence

reports ... in which the government has failed to provide

foundational evidenc.e that those statements 'were made under

circumstances that render them intrinsically reliable or were

made by reliable so~rces.' " (citation omitted)).

Brushing aside these district court rulings, my colleagues

think that those courts "may" have been denying a

presumption of accuracy because they "[c]onfus[ ed]" it for a

presumption oftruth,. Maj. Op. at 9, the difference being that

the latter presumes the content of a report is true, whereas the

SECRET 15 SECRET

former presumes that the government official

did so ...........,.................. .

no nor do I, core

question presented in this case is whether the Report

accurately reflects _ Unsurprisingly, my

colleagues cite not a si~ere a district court refers

to a presumption of truth or, for that matter, a single instance

in which the government argued for a presumption of truth

rather than a presumption of accuracy. They cite Ahmed, but

nowhere did the district court there say that "the requested

presumption would go to the truth of 'the facts contained in

the Government's exhibits.' " Maj. Op. at 10 (citing Ahmed,

613 F. Supp. 2d at 55). Rather, the district court denied a

presumption of accuracy, doing so for several reasons,

including the need to assess the "accuracy of translation and

transcription," and not just because of alleged torture, as this

court now implies. 613 F. Supp. 2d at 55; see also Al Mutairi

v. United States, 644 F. Supp. 2d 78, 84 (D.D.C. 2009)

(expressing concern that the government's evidence "is based

on reports of interrogations (often conducted through a

translator) where translation or transcription mistakes may

occur"). In Al Mutairi, the district court even pointed to

evidence in that very case exemplifying such problems: "for

over three years" the government had, "based on a

typographical error in an interrogation report," erroneously

insisted "that Al Mutairi manned an anti-aircraft weapon in

Afghanistan." Id.; see also Al Rabiah v. United States, 658 F.

Supp. 2d 11, 18 (D.D.C. 2009) (noting "discrepan[cies]"

between two reports summarizing the same interrogation that

the government had made no attempt to reconcile); Al Odah v.

United States, 648 F. Supp. 2d 1, 6 (D.D.C. 2009) (noting that

"interrogators and/or interpreters included incorrect dates in

three separate reports that were submitted into evidence based

SECRET 16 SECRET

on misunderstandings between the Gregorian and the Hijri

calendars"). Indeed, the same district court whose decision we

now review explained in another Guantanamo case that it

"has learned from its experience with these cases that the

interrogation summaries and intelligence reports on which

[the Government] rel[ies] are not necessarily accurate and,

perhaps more importantly, that any inaccuracies are usually

impossible to detect." Odah v. Obama, No. 06-cv-1668, slip

op. at 3 (D.D.C. May 6, 2010); see also id. ("[T]here are

many steps in the process of creating these documents in

which error might be introduced [:] . . . the interpreter must

understand the question posed and correctly translate it; the

interviewee must understand the interpreter's recitation of the

question; the interpreter must understand the interviewee's

response and correctly interpret it; the interrogator must

understand the interpreter's translation of the response; the

interrogator must take accurate notes of what is said; and the

interrogator must accurately summarize those notes when

writing the interrogation summary at a later time."). Of

course, concerns about the accuracy of the reports necessarily

raise concerns about their truth. But there are no grounds for

assuming the district courts are confused about this

distinction.

In support of a presumption of regularity, this court relies

on the plurality opinion in Hamdi, which, applying Due

Process analysis, states that "the Constitution would not be

offended by a presumption in favor of the Government's

evidence" in enemy combatant proceedings for citizen

detainees "so long as that presumption remained a rebuttable

one and fair opportunity for rebuttal were provided." Hamdi

v. Rumsfeld, 542 U.S. 507, 534 (2004) (plurality opinion).

According to this court, because the Hamdi plurality

provisionally blessed such a general presumption, its own

presumption requiring deference to official government

SECRET 17 SECRET

documents must pass constitutional muster. Maj. Op. at 7. But

the Hamdi plurality made clear that the presumption it

sanctioned would apply only if the government "puts forth

credible evidence that the habeas petitioner meets the enemy-

combatant criteria." 542 U.S. at 534 (emphasis added); see

also Almerfedi, 2011 WL 2277607, at *4 & n.7 (explaining

the Hamdi framework requires the government to "put forth

credible facts" tending to show that the petitioner meets the

detention standard, such as that he received military training

at an al Qaida camp, which the petitioner can then rebut with

his own facts and explanation). In other words, a presumption

is acceptable if the government can first show that its

evidence is credible, but the Hamdi pluraJity never suggested

that the government could make that showing by relying on a

presumption that government-produced evidence is credible

and accurate. It is the latter presumption that is at issue here

and about which the Hamdi plurality had nothing to say.

Given that the district court in this case concluded that the

Report was "not sufficiently reliable," Latif, slip op. at 25-

i.e., that it was not credible-the court's reliance on the

Hamdi plurality to defend its presumption of regularity is

misplaced.

This court believes that our decisions in AI-Bihani, 590

F.3d 866, and Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008)

support the "continuing viability" of applying a presumption

of regularity to Guantanamo habeas cases. Maj. Op. at 14. In

AI-Bihani, however, although the district court "reserved [the]

authority" granted by its case management order to presume

the government's evidence accurate, it went on to "assess[]

the hearsay evidence's reliability as required by the Supreme

Court." AI-Bihani, 590 F.3d at 880. Even the government

agrees with this view of AI-Bihani. See Appellees' Br. 52,

Barhoumi, 609 F.3d 416 (No. 09-5383) ("In this case, as in

Bihani, the district court did not presume the accuracy or

SECRET 18 SECRET

authenticity of the government's evidence." (emphasis

added)). The most one can say about Al-Bihani on this issue is

that we suggested-in dicta-that a district court could apply

a presumption to a particular piece of evidence if

appropriate-a power the district court in that case declined to

exercise. This is a far cry from the holding today-that all

such reports and their underlying hearsay must be granted a

presumption of regularity. As to Parhat, a pre-Boumediene

case arising under the Detainee Treatment Act of 2005, it is

true that the Act incorporated a "rebuttable presumption that

the Government Evidence is genuine and accurate." Maj. Op.

at 15 (emphasis removed). But in that case, we took the

opportunity to clarify that, at a minimum, hearsay evidence

"must be presented in a form, or with sufficient additional

information, that permits [an assessment of] its reliability."

Parhat, 532 F.3d at 849. As we recently reiterated, "[t]he

government's evidence in Parhat was insufficient to enable

the court to assess its reliability." Khan, 2011 WL 3890843, at

*6. This hardly supports the proposition that courts must

assume government reports like the one at issue here are

accurate, especially given that the Supreme Court in

Boumediene specifically found that the process provided by

the Detainee Treatment Act was an inadequate substitute for

the writ of habeas corpus. See 553 U.S. at 792.

In sum, given how and where we typically apply the

presumption of regularity, and given the balance this circuit

has already struck on how to deal with hearsay evidence in

Guantanamo Bay cases, and given the seasoned observations

of our district courts about the reliability of such evidence, the

question still unanswered to my satisfaction is "Why?" Why

does this court now require district courts to categorically

n""'C'l1'l'YI<=> that a government . one created in a

with multiple

., ...... n"'..n1-.1-·.an translators and

SECRET 19 SECRET

scriveners of unknown quality-is accurate? Whether the

presumption can be overcome by a preponderance of the

evidence or by clear and specific evidence-this court never

says which-I fear that in practice it "comes perilously close

to suggesting that whatever the government says must be

treated as true," see Parhat, 532 F.3d at 849. In that world, it

is hard to see what is left of the Supreme Court's command in

Boumediene that habeas review be "meaningful." 553 U.S. at

783.

But the court's assault on Boumediene does not end with

its presumption of regUlarity. Not content with moving the

goal posts, the court calls the game in the government's favor.

Instead of remanding to give Latif an opportunity to rebut the

presumption of regularity, this appellate court engages in an

essentially de novo review of the factual record, providing its

own interpretations, its own narratives, even its own

arguments, see Maj. Op. at 20-52, and finds that "neither

internal flaws nor external record evidence rebuts that

presumption in this case," id. at 7. But see Pullman-Standard

v. Swint, 456 U.S. 273, 292 (1982) (where district court fact

"findings are infinn because of an erroneous view of the law,

a remand is the proper course"). To be sure, such a finding

would be appropriate if the record supported "only one

resolution of the factual issue." 456 U.S. at 292. But that

cannot be the case where, as here, the question of reliability

turns entirely on witness credibility, inferences drawn from

errors and inconsistencies in the Report, and the resolution of

conflicts in other record evidence, see infra Part II. Given the

\

court's conclusion that the presumption has not been rebutted,

remand may well be a "pointless exercise." Con. Op. at 1.

SECRET 20 SECRET

II.

Rather than adopting a presumption of regularity, I would

apply clear error review to the district court's findings of fact

just as we have consistently done throughout our Guantanamo

cases. See, e.g., Almerfedi, 2011 WL 2277607, at *3

(reviewing district court fact findings for clear error); AI-

Madhwani v. Obama, No. 10-5172, 2011 WL 2083932, at *3

(D.C. Cir. May 27,2011) (same); Salahi v. Obama, 625 F.3d

745, 750 (D.C. Cir. 2010) (same); Al Odah v. United States,

611 F.3d 8, 14-15 (D.C. Cir. 2010) (same); Bensayah, 610

F.3d at 723 (same); Barhoumi, 609 F.3d at 423-24 (same);

Awad v. Obama, 608 F.3d 1, 7 (D.C. Cir. 2010) (So long as

"the district court's account of the evidence is plausible in

light of the record viewed in its entirety, the court of appeals

may not reverse it" and, critical to this case, "[w]here there

are two permissible views of the evidence, the factfinder's

choice between them cannot be clearly erroneous. " (citations

omitted)). Under that standard, I would conclude that the

district court committed no clear error by finding that the

Report was insufficiently reliable; that it committed no clear

error by crediting Latif s account of what happened only

insofar as it needed to; and that it adequately addressed the

other record evidence.

A

The starting point, of course, is the Report itself. See

A wad, 608 F.3d at 6-7 (holding that the same clear error

standard applies to fact findings based on documentary

evidence and inferences drawn from that evidence). The

district court's primary concern about the Report related to

the circumstances under which it was produced,

circumstances that, according to the district court, increased

the likelihood that mistakes had been made. In particular, the

SECRET 21 SECRET

in the Report are redacted, the district court was

to evaluate the accuracy of

inquiring into the accuracy of the Report

In view of all these concerns, the district court It

especially troubling that neither the Report nor any of the

Government's other evidence " information

with which to confirm

"[F]actual errors" in the Report reinforced the district

rt' Id S • 'fi 11 h th '

lth ! R rt t t

SECRET 22 SECRET

Also troubling the district court was the lack of

"corroborating evidence for any of the incriminating

statements in the . at 26. As the district

The district court properly weighed the cumulative effect

of these subsidiary findings. See AI-Adahi, 613 F.3d at 1105-

06. . to the district those findin

"'.,"Ul.\J'U In an Incorrect

op . •

All of the concerns just described are obviously relevant

to evaluating the Report's accuracy. It goes without saying

that the circumstances under which the Report was produced

and the evidence, or lack of evidence, of care taken to avoid

SECRET 23 SECRET

mistakes when the Report was produced shed light on that

question. Likewise, it is undoubtedly probative of the

Report's reliability that it contains factual errors, for the

presence of a known error increases the likelihood that other

information in the Report is inaccurate as well. And of course,

it is also relevant that the government has offered no

independent corroboration for any of the Report's

incriminating facts. After about the

trustworthiness of has

we

ill cases "the [district] court

must take [such an] absence of corroboration into account in

assessing the reliability of the petitioner's out-of-court

statements." Al AIwi, 2011 WL 2937134, at *6 (emphasis

added).

Moreover, none of the subsidiary fact findings the district

court made about the Report itself were clearly erroneous. As

this court acknowledges, "the . court cited blems

with the its

inconceivable," id. at.,

Nonetheless, this court insists

that the

"']t is almost

information in

8ECRET 24 8ECRET

My colleagues' interpretation of the evidence is

undoubtedly plausible. Yet when one accounts for all of the

's various lems, the fact that admittedly true facts

with contested inculpatory ones also

supports plausible explanation, akin to what happens

in the children's game of telephone. In that game, one child

whispers a phrase to another, who in turn whispers it to a

third, and so on, until the last child announces what he or she

has heard. As anyone who has played well knows, the whole

point of the game is that what the final child hears is both

recognizably similar to the original statement and yet

amusingly transformed. Cf Carol D. Leonnig & Josh White,

An Ex-Member Calls Detainee Panels Unfair, WASH. POST,

June 23, 2007 (reporting former-Combatant Status Review

Tribunal member, Lieutenant Colonel Stephen Abraham, as

"equat[ing] the government hearsay presented [to the CSRTs]

about detainees with a game of telephone" (internal quotation

marks omitted)).

SECRET 25 SECRET

SECRET 26 SECRET

,moreover we no

Irn/ynn.nn- the redacted _

·nrha"l"h."'.... likewise

Given that the circumstances under which

the Report was produced increased the probability of

mistakes, given that the Report contains other "factual errors,"

and given that the government has failed to corroborate

the Report's incriminating information, Latif, slip op.

in of

this explanation is at least plausible-the only question or us

when reviewing fact findings, such as these, for clear error.

See A wad, 608 F.3d at 7 (reiterating that "[i]f the district

court's account of the evidence is plausible in light of the

record in its entirety, the court of appeals may not reverse it"

(quotation omitted)). But see Maj. Op. _ (conceding this

explanation is "possible," yet incorrect~serting that "the

relevant question is whether th[ e] hypothesis is likely").

B

The district court did not stop with the Report. It also

"consider[ed] the explanation of events Latif has offered"-

again in service of the critical question of whether the Report

was "sufficiently reliable." Latif, slip op. at 27. According to

SECRET 27 SECRET

Latif, with the help of a charitable worker, he left Yemen in

2001 seeking free medical treatment for the lingering effects

of a serious head injury suffered in a 1994 car accident.

Although the government challenges Latif s claim that he left

Yemen in 2001 seeking medical treatment, it never disputes

that "in 1994, [Latif] sustained head injuries as the result of a

car accident and [that] the Yemeni government paid for him

to receive treatment" in Jordan at that time. Id. at 5.

Besides his own narrative, Latif also offered

documentary evidence to corroborate his account. Three

documents are particularly noteworthy. The first, "a letter,

dated August 21, 1994, from a doctor at the Islamic Hospital

in Amman, Jordan," confirms "that Latif 'was admitted' on

July 9, 1994 'following a head injury.' " Id. at 23 (quoting

letter). The second, "a letter dated August 18, 1999 from

Yemen's Ministry of Public Health," states "that '[w]e

recommend that [Latif] return to the previous center outside

for more tests and therapeutic and surgical procedures at his

own expense.' " Id. (alterations in original) (quoting letter,

which also states that Latif "is hard of hearing" and that "a

wide circular hol[e] was detected in [Latifs] left eardrum").

And the third-the most . t-is Latif s intake form

out was

Into , the intake form states that Latif

was in possession of "medical papers" when seized traveling

from Afghanistan to Pakistan. Id. at 23 & n.12.

This documentary evidence, the district court found,

"corroborat[ ed]" Latif s "plausible" story. Id. at 26-27. The

district court also rej ected the government's contention that

Latif s eXCUlpatory account was a "cover story" and found the

government's "attack[s]" on the "credibility of [the] story ...

SECRET 28 SECRET

unconvincing." Id. at 26. This too was an obviously relevant

evidentiary consideration. A petitioner's version of events,

should he choose to provide one, can be relevant when

assessing the government's evidence. After all, the more

believable the petitioner's exculpatory account, the greater the

reason to doubt the government's inculpatory one. el, e.g.,

Al-Adahi, 613 F.3d at 1107 (weighing petitioner's "false

exculpatory statements" in the government's favor). Having

thus assessed Latifs story positively, and given that the story

contradicts incriminating information contained in the Report,

the district court relied on the story to support its finding that

the Report is "not sufficiently reliable." Latif, slip op. at 25.

Although agreeing that Latif s story is relevant, my

colleagues nonetheless conclude that by describing it as

"plausible" and "not incredible," the district court never

actually credited that account. But "reading the district court's

explanation in [such] a parsed manner that overlooks its

meaning in context" is inconsistent with clear error review.

United States v. Brockenborrugh, 575 F.3d 726, 741 (D.C.

Cir. 2009). Here is what the district court actually said about

Latif s story:

The Court makes this ruling [i.e., about the accuracy

of the Report] having taken into consideration the

explanation of events Latif has offered. Latif s story

is not without inconsistencies and unanswered

questions, but it is supported by corroborating

evidence provided by medical professionals and it is

not incredible. [The district court then rejected the

government's theory that Latif had told inconsistent

stories over the course of his detention and was

therefore telling a "cover story." The district court

reasoned that the government's theory was based on

just "two isolated statements," one of which "does

SECRET 29 SECRET

not contradict Latifs version of events." Finally, the

district court found the government's] other

arguments attacking the credibility of Latif s

story ... similarly unconvincing. The smaller

inconsistencies to which [the government] ha[s]

pointed may be no more than misstatements or

mistranslations; even if some details of Latifs story

have changed over time, for whatever reason, its

fundamentals have remained the same.

Latif, slip op. at 27-28. What else could the district court have

meant other than that it found Latif s account convincing

enough, plausible enough, consistent enough, and

corroborated enough to give it at least some weight against

the government's evidence? And as we have held, "[m]erely

because a particular piece of evidence is insufficient, standing

alone, to prove a particular point does not mean that the

evidence 'may be tossed aside and the next [piece of

evidence] may be evaluated as if the first did not exist.' "

Salahi, 625 F.3d at 753 (alteration in original) (quoting Al-

Adahi, 613 F.3d at 1105). After all, it is the government that

bears the burden to demonstrate the lawfulness of detention,

and here the district court concluded that the government had

failed to meet that burden because (1) "there is a serious

estion as to whether the [Report] accurately reflects_

ii " given (la) the circumstances under which 1t was

pro uced and (l b) the "factual errors" it contains; (2) "the

incriminating facts in the [Report] are not corroborated[;] and

[(3)] Latif has presented a plausible alternative story to

explain his travel." See Latif, slip op. at II It is in just this

circumstance-where doubts about the government's

evidence and confidence in the detainee's story combine with

other evidence to fatally undermine the government's case-

that a detainee may prevail even without the district court

needing to credit the detainee's story by a full preponderance

SECRET 30 SECRET

of the evidence. To require otherwise would, in effect,

inappropriately shift the burden of proof to Latif.

Given that the district court found Latif s story entitled to

at least some weight and given that such a finding could

properly guide its evaluation of the government's evidence,

the only remaining question for us is whether that finding was

clearly erroneous. It was not. As this court itself

acknowledges, Latifs story, on its own terms, is not

"intrinsic [ally] implausib[le]." Maj. Op. at 39. And that

observation is reinforced by corroborating evidence showing

that Latif needed to leave Yemen for medical care in 1994,

that Yemen's Ministry of Public Health recommended he do

so again in 1999, and that Latif had medical papers with him

when seized crossing into Pakistan. That a trip abroad for

medical care had been necessary, not once but twice, makes it

more likely that Latif would have needed to travel abroad for

medical care in 2001 as well. And the fact that Latif s

condition was still serious enough to require such a trip in

1999, five years after he was first injured, increases the odds

that the injury continued to be that serious two years later in

2001. Equally important, the most plausible reason for why

Latif would have had medical papers in his possession when

first seized is that his trip in fact had a medical purpose.

Attempting to cast doubt on the district court's favorable

assessment of Latif s account, this court insists that the

district court "toss [ed] . . . aside" inconsistencies in Latif s

account. [d. at 45; see also id. at 42-45. But the district court

did no such thing. It expressly recognized those

inconsistencies, Latif, slip op. at 24-25 (summarizing the

alleged inconsistencies); id. at 27 ("Latifs story is not without

inconsistencies and unanswered questions."), ultimately

finding the government's "attack[ on] the credibility of Latif s

story" based on those inconsistencies "unconvincing." Latif,

SECRET 31 SECRET

slip op. at 27. Particularly significant to the district court was

the fact that the "fundamentals [of Latif s story] have

remained the same." Id. As Latif points out, those

fundamentals-appearing in more than a dozen interro tion

Surnml'lf!'es and statements from

un

of any

In with al Qaida or the Taliban; his serious head

injury from a car accident in Yemen; his inability to pay for

the necessary medical treatment; and his expectation and hope

that Ibrahim Alawi would get him free medical care."

Appellee's Br. 57. Indeed, at least some in the government

apparently agree. The commanding officer of the Defense

Department's Criminal Investigative Task Force noted in a

June 16, 2004 memo that Latifs s t a t e m e n t s _

had "been relatively consistent." Ex. 80, M e =

Criminal Investigative Task Force to General Counsel,

Department of Defense (June 16, 2004). Moreover, before

making too much of smaller inconsistencies it is important to

remember that they appear not in verbatim transcripts

prepared by a court reporter with the aid of an audio or video

. but rather in

last of which

represents evidence in record of what •

actually. in each o f _ As we remarked in

another Guantanamo Ba~he task of resolving

discrepancies among the various accounts offered into

evidence is quintessentially a matter . . . for the district judge

sitting as the fact-finder." Al-Madhwani, 2011 WL 2083932,

at *5 (internal quotation marks omitted).

SECRET 32 SECRET

Rather than applying clear error review to the district

court's resolution of such discrepancies, this court suggests its

own story-a story not found by the district court, never

argued by the government, and based on its own review of the

raw evidence-about how

v.

(en banc) ("[D]istrict court factfindings receive

deference under the clearly erroneous standard or they must

be vacated. There is no de novo appellate review of

factfindings and no intermediate between de novo and clear

error, not even for findings the court of appeals may consider

sub-par.").

c

The government points to

evidence that, it believes, buttress its argument

is reliable. The district court considered all s eVl

Some items it found insufficient to outweigh its concerns

_ and its positive assessment of Latifs story.

~ailed to implicate Latif or prove the point the

government hoped to make. As a reviewing court, our job is

to determine only whether those assessments were clearly

erroneous. They were not.

First, consider the circumstances leading up to Latif s

seizure by Pakistani authorities-circumstances to which the

district court gave less weight than the government would

SECRET 33 SECRET

have liked. Latif left Kabul in November 2001 and then

traveled through _ before eventually arriving at the

Pakistani border ~akistani authorities detained him.

According to the government, this path mirrors that of Taliban

soldiers retreating from Kabul. Although not contending that

this evidence is dispositive, the government argues that

because Latif's admitted route is consistent with that of

Taliban soldiers it is a

helpful that the

Report's

Fair enough, but how helpful? If this route is commonly

used by innocent civilians, then the evidence is not that

helpful at all. To understand why, consider a simple

hypothetical. Suppose the government were to argue in a drug

case that the defendant drove north from Miami along 1-95, "a

known drug route." Familiar with 1-95, we would surely

respond that many thousands of non-drug traffickers take that

route as well. Given what we know about our own society, the

1-95 inference would be too weak even to mention. Cf

Almerfedi, 2011 WL 2277607, at *4 n.7 (noting that some

conduct such as possessing an AK-47 is so "commonplace in

Afghanistan [that it] does not meaningfully distinguish an al

Qaeda associate from an innocent civilian"). On the other

hand, if the alleged drug trafficker had driven along an

infrequently traveled country road, then a contention that that

road was "a known drug route" would carry more weight. The

burden of proof is on the government to demonstrate whether

travel on a particular route to the Pakistani border, when

considered in context, is more like the lonely country road

and thus worthy of consideration when it comes to

distinguishing between enemy combatants and innocent

civilians.

SECRET 34 SECRET

Based on nothing more than a few anecdotes, this court

suggests that Latif s route was akin to the country road. It

asserts that the details of Latifs post-Kabul travels are

"analogous" to those we found "strong[ly] suggest[ive]" of al

Qaida membership in Uthman. Maj. Op. at 47. But how

analogous are they really? Uthman was captured "in the

vicinity of Tora Bora" at a tilne when "most, if not all, of

those in the vicinity of Tora Bora ... were combatants."

Uthman, 637 F.3d at 404. By contrast, the record in this case

contains no evidence that Latif ever traveled through the Tora

Bora mo~ and the c. ity we know he did travel

through_ _-has over 160,000 residents of

whom were not combatants see

not a suspicious route,

but also was captured with a "small group" that included two

"confessed ... bodyguards for Osama bin Laden" and another

admitted Taliban fighter, all three of whom Uthman had

studied with at the Furqan Institute, "a religious school at

which other men were recruited to fight for Al Qaeda."

Uthman, 637 F.3d at 404-05 (internal quotation marks

omitted). One of the bodyguards "described the group as

'brothers' retreating from battle.' " Id. at 405. Here, Latif told

interrogators that his Afghan guide was the only person who

accompanied him to the Pakistani border, Ex. 25, Summary

Interrogation the evidence to

the ",",11,"".",,-,;r

district court did consider it, expressly acknowledging that

"Abu Khalud arranged travel for other detainees along the

SECRET 35 SECRET

same route Latif reportedly took to Afghanistan." Latif, slip

op. at 10. Given that the government failed to demonstrate

that route was towards the country road end of the 1-95-

country road continuum-i.e., that the evidence was

sufficiently probative-the district court committed no clear

error by failing to "factor[] [it] into [its] decision," Maj. Op. at

42.

Second, consider the government's argument that "Latif

was recruited by an al Qaeda member" in Yemen, a theory the

district court found the government had failed to prove. Latif,

slip op. at 25. To support its theory, the government pointed

to evidence allegedly showing that Latif s charitable

benefactor, Ibrahim Alawi, is actually an al Qaida facilitator

known as Abu Khalud, whose real name is Ibrahim Ba'alawi.

Some of this evidence could certainly have led a reasonable

factfinder to accept the government's interpretation, including

that "Ba'alawi" and "Alawi" have similar spellings and that

the route Latif took to Afghanistan at Ibrahim's urging was

the same path reportedly taken by other detainees who, unlike

Latif, admit to having taken that trip to fight alongside the

Taliban and some of whom have also admitted, again unlike

Latif, to being Abu Khalud-recruits. That evidence, however,

hardly forecloses the district court's contrary finding that the

government had failed to prove by a preponderance of the

evidence that Ibrahim Alawi was Abu Khalud. To repeat,

although we have treated evidence that a petitioner reached

Afghanistan along a "route similar to the paths of admitted al

Qaeda members now in U.S. custody" as a plus factor in

determining whether that petitioner was "part of' al Qaida,

Uthman, 637 F.3d at 405, we have never suggested nor has

the government shown that this particular path is so uniquely

associated with al Qaida recruits that a district court clearly

errs when it treats such evidence as more akin to traveling

along 1-95 than a lonely country road.

SECRET 36 SECRET

The record contains ample additional evidence that

supports the district court's finding. Latif introduced expert

declarations explaining that "Ba'alawi" and "Alawi" are

distinct Arabic names and that both are common in Yemen.

Latif, slip op. at 18-19. Notably, therefore, Latif's

interrogation summaries all refer to some variation of the

name Ibrahim Alawi but none include the "Ba," and none

mention Abu Khalud. By contrast, interrogation summaries

for seven of the eight detainees mentioning the al Qaida

facilitator named Abu Khalud refer either to "Abu Khalud" or

"Ibrahim Ba'alawi" but never "Ibrahim Alawi," id., and the

eighth, who apparently used the name "Alawi," is a detainee

this very district court, in a different case, found not credible

because his statements conflicted with those of several other

detainees, id. at 19 n.10 (citing Abdah v. Obama, 717 F. Supp.

2d 21, 35 (D.D.C. 2010)). But see Maj. Op. at 39-41

(ignoring the district court's adverse credibility finding about

that detainee). Moreover, Latif described Ibrahim to

interrogators as "skinny," with aj}!"bi beard" and as "30-40

yrs. old," as having two children , a boy, and.,

a girl, and as being from Ibb. Lati, s Ip op. at 19-20. By

contrast, other detainees described Abu Khalud as short, fat,

with a short beard and moustache, and around 27 years old,

with a visible injury on his face caused by a bullet injury

sustained in Bosnia, with one daughter named" and as

being from Ta'iz, not Ibb. Id. But see Maj. Op. at 50

(dismissing these differences because Latif's des . tions of

Ibrahim Alawi in interrogation summaries

. In light of this' rec

two

are permissible views of the

evidence," meaning that "the factfinder's choice between

[those two views] cannot be clearly erroneous." Awad, 608

F.3d at 7.

SECRET 37 SECRET

court also no s Innocent V~~J"""' .l""~.LV".l

.

not having his passport-that he "gave it to Ibrahim to use in

arranging his stay at a hospital." Id.

record evidence supports the district court's

is. At the most basic level as the district court

SECRET 38 SECRET

nonetheless accuses the district court of

evidence that

court

VU'~"L~~U.V.L~~.'F. t h e _

itconclu~

Finally, the district court's reliance on Latifs explanation

for not having his passport is plausible in light of other record

evidence about the practice of at least one hospital, the

Islamic Hospital in Jordan, of taking foreign patient's

passports "to guarantee that [those] patients will not leave the

country before settling their bills." Pet'r Trial Ex. No.7.

Moreover, although leaving behind one's passport with an al

Qaida operative at an al Qaida run guesthouse might suggest

al Qaida affiliation, see Al Alwi, 2011 WL 2937134, at *4,

SECRET 39 SECRET

such a scenario is several inferential steps removed from the

only relevant fact we know about Latif-that he did not have

his passport with him when seized. To be sure, a reasonable

factfinder might have interpreted this evidence differently.

Yet again, the record contains enough evidence to support

"two permissible views of the evidence," Awad, 608 F.3d at 7

(quotation omitted), meaning that "the factfinder's choice

between [those two views] cannot, [therefore,] be clearly

erroneous." Id.

D

The court groups many of its criticisms about the district

court's fact finding under the catch-all header of AI-Adahi.

According to my colleagues, the district court took an "unduly

atomized" approach to the evidence. Maj. Op. at 39. The

district court did no such thing.

Absent some affirmative indication to the contrary, we

"presum[e] that the district court knew and applied the law

correctly." United States v. Mauling, 557 F.3d 658, 668 (D.C

Cir. 2009). Such affirmative evidence of legal error was quite

obviously present in Al-Adahi, as the "fundamental mistake"

we identified in that district court's opinion makes clear:

AI-Adahi's ties to bin Laden "cannot prove" he was

part of AI-Qaida and this evidence therefore "must

not distract the Court." The fact that AI-Adahi

stayed at an al-Qaida guesthouse "is not in itself

sufficient to justify detention." AI-Adahi's

attendance at an al-Qaida training camp "is not

sufficient to carry the Government's burden of

showing he was a part of' al-Qaida.

SECRET 40 SECRET

AI-Adahi, 613 F.3d at 1105 (emphasis added) (quoting district

court opinion). By contrast, here the district court placed the

Report, which the government concedes represents its

"primary" piece of evidence, Appellants' Br. 10, and on

which the government admits its "case turned," Appellants'

Br. 5, at the center of its analysis. The district court devoted

two and a half pages to analyzing the Report and then another

fifteen pages to summarizing other evidence introduced by the

parties to prop it up or knock it down. Finally, the district

court examined the cumulative effect of various evidentiary

concerns on the Report's reliability. When read in its full

context, the district court's opinion suffers from nothing like

the flaws that we reviewed in AI-Adahi.

This court uses Al Adahi to tum the presumption of

district court lawfulness on its head. Rather than giving the

district court the benefit of the doubt, it seems to assume that

the district court considered the evidence in isolation and

ignored key facts. Take, for example, the contention that the

district court tossed aside and considered in isolation alleged

inconsistencies between statements attributed to Latif in

different interrogation reports. Maj. Op. at 43-45. This

argument fails to recognize the leeway we have afforded

district courts to resolve discrepancies among various

accounts in other Guantanamo cases. In A I-Madhwan i, we

found no error in the district court's decision to credit two

different detainees' interrogation summaries even though the

detainees' statements contradicted each other in certain

respects·, reasoning that the "task" of "resolving" such

discrepancies "quintessentially" belonged to the district court.

AI-Madhwani, 2011 WL 2083932 at *5. Yet the only

indication that the district court in that case had actually

resolved the relevant contradictions between the two reports is

its bald assertion that those reports are reliable; the

discrepancies are never mentioned, let alone analyzed. By

SECRET 41 SECRET

contrast, as this court concedes, the district court here

expressly noted that it had "taken into consideration the

explanation of events Latif has offered" in assessing the

Report and expressly acknowledged that Latifs story is not

without "inconsistencies and unanswered questions." Maj.

Op. at 42. The district court then specifically assessed the two

primary inconsistencies the government relied on, as my

colleagues implicitly acknowledge. Id. at 43-45. Finally, the

district court explained that any concern about "smaller

inconsistencies," most of which it had earlier summarized,

was outweighed by the.possibility that they had resulted from

translation or transcription errors and by the fact that the

"fundamentals [of Latifs story] have remained the same."

Latif, slip. op. at 27. For its part, this court reluctantly

recognizes all this as "a welcome step toward the holistic

approach to the evidence we called for in AI-Adahi." Maj. Op.

at 42-43. But it is in fact more than that. If the district court's

implicit resolution of discrepancies in Al-Madhwani was

adequate, then it follows a fortiori that so too was this district

court's far more explicit treatment. My colleagues

acknowledge that their approach is in tension with "the usual

practice" of "assum[ing] the [district] court considered all the

evidence," but nonetheless find this justified by the "unusual

posture of this case"-i.e., a he-said, she-said case involving

detainees at Guantanamo Bay. Id. at 50. But if we take

seriously the notion that district courts are better at finding

facts and determining credibility, then we should be all the

more eager to defer to their expertise when the stakes are high

and when the case comes down to he-said, she-said-that is,

when it rests entirely on credibility and how one interprets the

facts.

The only affirmative indication this court identifies

allegedly showing that the district court took an unduly

atomized approach to the evidence relates to the

SECRET 42 SECRET

circumstances of Latif s capture and to _

_ The court makes m~

~er, the district court employed language

similar to the language used at one point by the district court

in AI-Adahi-specifically that "the timing of [Latif s]

departure . . . is not sufficient to create an inference that he

was involved in fighting." Latif, slip op. at 27 (emphasis

added). The court, however, neglects to mention that this

sentence appears in the middle of a paragraph evaluating the

credibility of Latif s account, which itself appears in the

middle of an extended assessment of the combined impact of

multiple pieces of evidence on the Report's reliability. This

"pars[ing]" of the district court's words "overlook[s]" what

those words "mean[] in context," an approach that is, again,

inconsistent with clear error review. See Brockenborrugh, 575

F.3d at 741.

no convmcmg

district court should have considered evidence that it found

does not implicate Latif-unless, of course, that finding was

clearly erroneous, something they never claim. Suppose, for

example, that a witness in a burglary case testifies to having

seen a man with a similar build as the defendant walk away

from the site of the crime. If the factfinder concludes that the

person the witness saw was not the defendant, then surely the

factfinder can reasonably set aside the witnesses' testimony in

assessing whether the defendant was the burMar.too here.

So

Once the district court had determined that did not

implicate Latif, it was entirely proper for it to put t em aside

when evaluating the rest of the evidence.

The remainder of the court's Al Adahi critique rests

entirely on the claim that the district court "ignore [d] relevant

SECRET 43 SECRET

evidence." Maj. Op. at 38. Not so. The district court expressly

considered virtually all the evidence this court points to--

including every single item of evidence the government

claims is of . relevance. Lo,mn.are

id. at

compare aJ. . at s

from Kabul and sUbsewent seizure by Pakistani

authorities), with Latif, slip op. at , 25, 27 (discussing

same); compare Maj. Op. at 50-52 evidence that Latif's

benefactor, Ibrahim AI-Alawi, is in fact the Al Qaida

facilitator Abu Khalud), with Latif, slip op. at 17-21, 23-28

(discussing same). As for the claim that Latif may have (or

may not have) traveled across the Pakistani border with

Taliban-affiliated the district court's silence is

To determine, as this court apparently does, that an

experienced district court judge has totally ignored relevant

evidence and so committed legal error because his twenty-

seven page opinion omits mention of a handful of tertiary

items plucked from thousands of pages of record evidence not

SECRET 44 SECRET

only ignores the presumption of district court lawfulness, but

also imposes on that court a virtually impossible burden. As

the First Circuit put it, "[t]he district court could have written

a 200-page decision on this case, but the far more compact

assessment it made was entirely adequate under Rule 52(a)."

Addamax Corp. v. Open Software Foundation, Inc., 152 F.3d

48, 55 (ls

This text is long and has been trimmed here. Open the source document for the complete record.