Guantanamo Prisoner Trapped in Fog of Law

      The Supreme Court knows how to ride herd on federal appeals courts. Just ask the Federal Circuit Court of Appeals, which has seen any number of its patent law rulings flushed down the judicial toilet in recent years. Or the Ninth Circuit, which the justices regularly use as a punching bag when it rules in favor of a suspect, criminal defendant or state prisoner.
      For reasons known only to the justices, however, the Supreme Court is taking a hands-off policy toward the D.C. Circuit in Guantanamo habeas corpus cases. The conservative majority on the D.C. Circuit has consistently rejected efforts by Guantanamo prisoners to challenge the government’s grounds for holding them. The Supreme Court has stayed its hand even as the lower court judges, in at least one ruling, mocked the court’s landmark decision that guarantees detainees a “meaningful opportunity” to challenge the government’s case against them.
      The justices’ inaction became official last week (June 11) when the court rejected petitions for certiorari filed by seven Guantanamo prisoners seeking review of D.C. Circuit rulings upholding their detention. The justices had taken their time to consider the cases over six conferences stretching back to February. But when the court’s orders list was released on Monday morning, reporters found nothing but the standard listing for cert denials: no dissenting statements explaining why the court should have accepted any of the cases, no replies explaining why the D.C. Circuit got the cases exactly right.
      The seven rulings left standing by the Supreme Court include one of particular importance. In Latif v. Obama, the D.C. Circuit established an evidentiary rule that limits a prisoner’s ability to contest intelligence reports based on interviews conducted in theater-of-war conditions hardly conducive to scrupulous accuracy. Under the 2-1 ruling, an intelligence report compiled in the Afghanistan war zone is entitled to the same “presumption of regularity” that normally attaches to official government records, like a tax receipt, prepared in normal workday conditions.
      The petitioner in the case, Adnan Latif, was turned over to U.S. forces during the Afghanistan war in 2001 and has been held at Guantanamo since 2002. The Yemeni national contends that he was charged with supporting al Qaeda and the Taliban based on a misunderstanding of his statements to U.S. interrogators as translated by an interpreter. As Latif tells it, he was in Afghanistan seeking medical care, unavailable in Yemen, for injuries from an auto accident in 1994.
      Writing for the majority, Judge Janice Rogers Brown acknowledged that the report was “prepared in stressful and chaotic conditions, filtered through interpreters, subject to transcription errors, and heavily redacted for national security purposes.” Even so, Brown said courts have to accept the report — with incriminating statements attributed to Latif — as an accurate account of what he said unless he could convincingly refute the report’s “presumption of regularity.”
      The ruling prompted a sharp dissent by Judge David Tatel, the lone Democratic appointee on the panel. Tatel quoted the majority’s critique of the report and added complaints of his own. The report, he wrote, “was produced in the fog of war by a clandestine method that we know almost nothing about.” Why, he asked, should a court have to presume that it is accurate?
      Latif’s version of events was enough to satisfy U.S. District Court Judge Henry Kennedy, who ordered him released “forthwith” in July 2010. Kennedy acknowledged inconsistencies in Latif’s stories, but concluded that the government had failed to prove that he was associated with al Qaeda or the Taliban.
      On appeal, Brown and fellow Republican appointee Karen LeCraft Henderson ruled that Kennedy should have accepted the intelligence report as an accurate account of what Latif said after his capture. The ruling sent the case back to Kennedy, a Clinton appointee, to reconsider the evidence as instructed.
      In her opinion, Brown was not content with criticizing Kennedy. She criticized the Supreme Court as well for its 2008 ruling, Boumediene v. Bush, that requires the Guantanamo prisoners be provided “meaningful access to a judicial forum.” The ruling’s “airy suppositions,” Brown wrote, “have caused great difficulty for the Executive and the courts.” In his dissent, Tatel complained that his colleagues were thumbing their noses at the high court. “It is hard to see what is left,” Tatel wrote, “of the Supreme Court's command in Boumediene that habeas review be ‘meaningful.’”
      The ruling prompted sharp criticism at the time among the small number of observers following the D.C. Circuit’s habeas decisions carefully. Peter Marguiles, a professor at Rhode Island University School of Law who has represented Afghan detainees, complained of the majority’s “excessive deference” to the government. Benjamin Wittes, an expert at the Brookings Institution who has been supportive of the government’s detention and interrogation policies, called the ruling “wrong.” Today, Wittes calls it “an outlier.”
      The Supreme Court, however, saw no reason to lift a finger either in behalf of Latif or in defense of its own precedent. Latif, now 35, has spent most of his adult life at Guantanamo in what he called in a letter “a wild nightmare.” There he will remain, having been captured in the fog of war and held ever since in the fog of law that the Supreme Court has failed to clear up.