With Latif Decision, Section 1031 Authorizes Indefinitely Detaining Americans Based on Gossip

As I noted yesterday, both Dianne Feinstein and Carl Levin understand Section 1031 of the Defense Authorization to authorize the indefinite detention of American citizens. Levin says we don’t have to worry about that, though, because Americans would still have access to habeas corpus review.

Section 1031 makes no reference to habeas corpus, and places no limitation on habeas corpus review.  Nor could it.  Under the Constitution, habeas corpus review is available to any American citizen who is held in military custody, and to any non-citizen who is held in military custody inside the United States.

Even ignoring the case of Jose Padilla, which demonstrates how easily the government can make habeas unavailable to American citizens, there’s another problem with Levin’s assurances.

Habeas was gutted on October 14, when Janice Rogers Brown wrote a Circuit Court opinion holding that in habeas suits, judges must grant official government records the
presumption of regularity.

The habeas case of Adnan Farhan Abdul Latif largely focused on one report purporting to show that Latif fought with the Taliban. I suspect the report is an early 2002 CIA report, written during the period when the US was trying to sort through hundreds of detainees turned over (sometimes in exchange for a bounty) by the Pakistanis. The report I suspect is at issue summarizes the stories of at least 9 detainees, four of whom have already been transferred out of US custody. David Tatel’s dissent makes it clear that there were clear inaccuracies in the report, and he describes Judge Henry Kennedy’s judgment that this conditions under which this report was made–in the fog of war, the majority opinion agrees–increased the likelihood that the report was inaccurate. Of note, Latif’s Factual Return reveals the government believed him to be Bangladeshi until March 6, 2002 (see paragraph 4); they blame this misunderstanding on him lying, but seeing as how the language of an interrogation–whether Arabic or Bangladeshi–would either seem to make his Arab identity clear or beset the entire interrogation with language difficulties, it seems likely the misunderstanding came from the problem surrounding his early interrogations.

Beyond that report, the government relied on two things to claim that Latif had been appropriately detained: The claim that his travel facilitator, Ibrahim Alawi, is the same guy as an al Qaeda recruiter, Ibrahim Balawi (usually referred to as Abu Khulud), in spite of the fact that none of the 7 detainees recruited by Balawi have identified Latif. And the observation that Latif’s travel to Afghanistan from Yemen and then out of Afghanistan to Pakistan traveled the same path as that of al Qaeda fighters (here, too, none of the fighters who traveled that same path identified Latif as part of their group).

In other words, the government used one intelligence report of dubious reliability and uncorroborated pattern analysis to argue that Latif had fought with the Taliban and therefore is legally being held at Gitmo.

And in spite of the problem with the report (and therefore the government’s case), Judge Janice Rogers Brown held that unless Judge Kennedy finds Latif so credible as to rebut the government’s argument, he is properly held. More troubling, Rogers Brown held that judges must presume that government evidence gathering–intelligence reports–are accurate as a default.

When the detainee’s challenge is to the evidence-gathering process itself, should a presumption of regularity apply to the official government document that results ? We think the answer is yes.

Rogers Brown is arguing for a presumption of regularity, of course, for the same intelligence community that got us into Iraq on claims of WMD; the report in question almost certainly dates to around the same period that CIA went 6 months without noticing an obvious forgery.

Rogers Brown’s presumption of regularity is particularly troublesome given that raw intelligence is not meant to be definitive. It is the documentation of gossip and rumor that has not yet been vetted as to whether or not it is fact.

Here’s what Sabin Willett–the lawyer for two Uuighurs, Parhat and Kiyemba–says results from the Court’s decision that judges must accept such reports as definitive.

It is not hyperventilation to say, as so many have said, that Latif guts Boumediene, because — trust me —  every prisoner has an intelligence report.  Now the prisoner hasn’t just lost his judicial remedy to Kiyemba; if those reports control, factfinding is over, too.


I tried Parhat.  He had an intelligence report too.  We picked it apart, as I’m sure Latif’s lawyers must have done with their report, and as Judge Garland did in the classified Parhat opinion.  No one could make a straight-faced argument for a presumption after that was done.  You have to–I can’t say this any other way, because Parhat’s documents remain classified–but you have to see an “intelligence report”  to appreciate just how surreal the proposition is.

The trial lawyer would think this way: if this tissue of hearsay, speculation, and gossip comes in evidence at all, the trial court must at least be allowed to weigh it.  But when the circuit lays the thumb of presumption on the scale, there’s no more judicial review — not even in the court of appeals.  “Review” is in the anonymous DoD analyst who wrote the report.

Review was Judge Kennedy’s job, and he did his job.  Whether we agree or disagree with his weighing, the scale had always been his before.  This idea, I think, lies at the bottom of Judge Tatel’s thoughtful dissent.  Can the jailer’s report trump the judicial officer, in civil cases that are supposed to be a check on the jailer itself?   There’s not much evidence that anybody up at SCOTUS cares about the GTMO prisoners any more (whose imprisonments now treble WW2 detentions), but there may still be four of them who worry about trial judges.


Pause a moment.  A man sits in government prison for ten years and counting, on the strength of a secret document created by the jailer, in haste, from hearsay, which didn’t persuade an experienced trial judge. Does that sound like the stuff of regimes we are prone to condemn?

And now with some version of 1031 set to pass Congress, this is the standard that courts will use not just with UIghurs and Yemenis picked up in Afghanistan, but potentially with young Muslim American men who sound off in chat rooms. With the presumption of regularity, intelligence reports based on paid informants’ claims about what got said at a mosque will be enough to hold an American citizen indefinitely.

And it’s not just the report. Rogers Brown accepts pattern analysis–which in Latif consisted of travel patterns but which in US-based counterterrorism usually tracks the patterns of the kinds of calls you make, your geolocation, which falafel joint you frequent–as the sole corroboration for the dicey intelligence report.

The way Rogers Brown treats such pattern analysis, in lieu of any real witnesses, as corroboration bodes particularly poorly for the US given how much pattern analysis the government is already doing on innocent Americans.

Carl Levin may well believe his compromise language carries no risk to Americans given the guarantee of habeas, but with Latif as precedent in war on terror habeas cases, he’s wrong. As the senator representing one of the largest communities of Arab-Americans and Muslims in the country, his carelessness on this point is particularly troubling.

While it’s not the primary goal, Levin’s “compromise” language could put some of his constituents–guilty of nothing more than religion, proximity, and gossip–in indefinite detention, with little recourse. And he doesn’t seem all that bothered by the possibility.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

28 replies
  1. greengiant says:

    Why do I suspect something that might be used to indefinitely hold young Muslim Americans might be used to say, indefinitely hold occupy protestors?

  2. prostratedragon says:

    Alawi … Balawi … [sigh]

    And of course this,

    As the senator representing one of the largest communities of Arab-Americans and Muslims in the country, his carelessness on this point is particularly troubling.

    which could be a strong fulcrum for action if enough people from other communities understood that none of us is isolated from the others.

  3. MadDog says:

    Some, mostly National Security State-embracing legal beagles and think tank prostitutes (mostly male by the way), and our standard run-of-the-mill thoughtfreeless politicos, admonish us not to be at all concerned as these legal strictures will only ever be employed on foreigners, or at least only ever on adherents of foreign or alien ideas and beliefs.

    I wonder if anyone remembers the lessons and results of the Weimar Republic?

    Surely it could never happen again, could it? And surely it could never happen here, could it?

  4. geoschmidt says:

    Way back in the 50’s as a kid, they showed old movies with dipictions of old timey European capriceous courts of law, with the wigs and funny clothes. But now only Turner shows anything like that, in fact resawr Sparticus (1960) what quality compared to the crap taht assaults this generation, digression aside, back a few decades even, there had remained a small window on what was the nemesis of American sensibility,

    But nowadays we have drifted… like a rudderless or sailing craft in the doldrums. To this place, where the devils now can come up out of their holes, and strut their stuff, poor damned souls that we are, a lot like “Eloi” in H.G Well’s “Time Machine”, passive, to a fault, sheep like.
    And, knowing this, we know also that to be unpassive, well… “… Ahh would be prudent… tut tut…” GHWB.

    Just think, all the things that prided Americans, and some of those things surprise!! can be summarily withdrawn, hey we didn’t even vote on it, so far as I recall, but maybe if it is a thing that needs to be described in a lost tongue, (Habaeus Corpus), and that is much of the rest of it… how many of us are fluent in Latin?, so, we do not possess what we claim. Don’t as a people really know jack, and that is the way it works so good.

    Judge: “what is your point?”. “Well yer honer… I just think I ought to get to hear what is the charges sir.”

  5. MadDog says:

    I couldn’t stop rolling my eyes with this footnote (No. 3 on page 14) from the Latif decision:

    “…The Government had the strongest incentive to produce accurate reports and no incentive to frame innocent bystanders as Taliban operatives…”

    The naivete expressed by this statement is just shocking. It seems Judges Brown and Henderson have little knowledge, and absolutely no understanding of what actually takes place during warfare.

    If they had such knowledge and understanding, they would immediately recognize the undeniable truth behind this centuries-old warfare quote:

    “Kill ’em all, and let God sort ’em out”

    The exact same rationale applies to the military’s detention of prisoners.

    I can only think of Judges Brown and Henderson in terms of “Dumb and Dumber”.

  6. GKJames says:

    MadDog: it may well be naïveté but, likely because I’m more cynical, I suspect it’s a way of pursuing an ideological agenda in a way that doesn’t seem inflammatory but is supremely effective. The beauty of the presumption is that opponents will spin their wheels endlessly because it’s in favor of the party holding all the facts. Ergo, no way to overcome the presumption. What would the Founding Fathers have done with a Rogers Brown…

  7. MadDog says:

    @MadDog: In the end, Judges Brown and Henderson express their utter contempt for detainee habeas corpus applications with their “don’t bother us anymore” final salvo of (page 53):

    “…Boumediene’s logic is compelling: take no prisoners. Point taken…”

  8. MadDog says:

    @GKJames: Oh, I have no doubt that Judges Brown and Henderson based their decision on their ideological beliefs.

    After all, if one has zero real world experience in the matter (the fog of warfare), then the last straw crutch commonly grabbed is one’s beliefs.

    No, it is precisely because Judges Brown and Henderson are so childlishly naive about what actually takes place in the real world that they must retreat to their ideological kneejerk beliefs.

    If there is an opposite to “judging”, this is the very definition.

  9. P J Evans says:

    I have to assume that those two judges never see, hear or read news stories about the various illegal wars we’re involved in, because if they did, they know that that sentence bears little (if any) resemblance to reality.
    It’s been obvious for quite a while that this government (regardless of who’s officially in charge) will cheerfully invent whatever evidence it needs to get the results it wants.

  10. MadDog says:

    @MadDog: After having now read the entire Latif decision, I must strongly reaffirm my previous commentary that the US Court of Appeals for the District of Columbia Circuit, which is the appellate court dealing with detainee issues, seems to be saying that they don’t want to be bothered anymore by those pesky detainees, and why don’t they just quit complaining and live out their remaining regrettable existence in 6X6 solitary confinement cells at Gitmo like good forgotten prisoners.

    As in: Don’t call us. We’ll call you…or not.

  11. MadDog says:

    @P J Evans: I must sadly acknowledge that Edwin Meese has succeeded beyond even his most wildest wingnut dreams.

    Wingnuts have long complained about about the unchecked power of lifelong, unelected appointees to the Federal bench, and their utter hypocrisy just floors me because it is they who have installed total nutjob ideologues like Janice Brown, Priscilla Owen, Clarence Thomas, Samuel Alito, Antonin Scalia, etc. in key positions throughout the Federal courts.

    I’d say we’ll rue the day, but we’re long past that time.

  12. wondering says:

    What constitutes detention? Are all “detainees” actually in physical custody? Do all U.S. “detainees” have access to expert counsel? Since the start of these nightmarish, Orwellian scenarios those who would remove the detained from contact with the outside world have split legal hairs. Who has the operative definitions on file, one wonders.

  13. bmaz says:

    There used to be a running joke in California about the presumption of crappiness in Janice Rogers Brown decisions. There were California Supreme Court decisions, and then there were “Brown decisions. Still the case.

  14. hcgorman says:

    Let’s throw this into the mix. If the governments intelligence reports are presumed credible think about the fact that the DC Circuit has also held that the detainee is not allowed meaningful review of the documents filed in his own case by his own attorney. So the government’s version in presumed true and the detainee (prisoner) can’t review the document to help his attorney contest the presumption….
    I have been fighting for a year now to allow my client access to documents I filed on his behalf so that he can review them and tell me things like..”oh yeah I remember that situation and it went like this…..” I of course as his attorney can read all the shit the government is saying about my client in the governments documents…but I cannot share those documents with my client…except of course when the government says I can. I asked the government “for permission” to share with my client the documents I filed in his defense and the government gave me permission to share those with him… when I visit with him at the base but I can’t leave those documents with him so that he can review them on his own.(In other words he can read the 400+ page documents as we meet for a day ot two -but only while I sit there with him.) I asked the judge to allow me to send an unclassified version of the documents to my client so he could sit and review them on his own and the good judge said “no.” I asked the DC Circuit to overrule the judge and allow me to send the documents to my client so he could review them on his own and participate in his own case and they said “no…too costly for the government to declassify…” and now- I have filed a writ of mandamus to the U.S. Supreme Court asking them to order the DC Circuit to provide an unclassified version of the documents that I filed on my clients behalf so that my client can review them and actually help with his case…..
    anyone want to guess what they will say?
    So the government’s documents are presumed true and the prisoner-detainee can’t even review the documents in any meaningful way to contest the presumption.
    My country tis of thee………

  15. prostratedragon says:

    OT (just typoed ‘OY’), but what the hell, it’s Saturday, late:

    Imprint at Salon has a fascinating display up of spreads from sales brochures, dealer manuals, and the like, from Ford’s Edsel campaign, particularly recommended for decoders of all types and Mad Men fans. Two of my favorite images:

    “Your Edsel Marketer” (Note what appears to be a ’57 Chevy in the foreground.)

    Leave-behind door hanger card, in an eye-catching color.

    The whole article is here: “How Ford BUilt the Ultimate Lemon”.

  16. GKJames says:

    No wonder. A look at Wikipedia for Rogers Brown confirms she’s a creature of government, a fan of asserting the power of the state, and someone who uses Ayn Rand as an intellectual touchstone.

    Time to revisit the lifetime appointment idea?

  17. bmaz says:

    Maybe, but Ben started screaming about Latif the minute it was issued and kept at it; he deserves some credit for that. The first few days, he and I had a very lonely exchange on Twitter about Latif to the point of where he questioned if he was overestimating it; no, he was not.

  18. emptywheel says:

    @MadDog: I’m with bmaz. If Latif turns into the seminal moment for the Kangaroo system that habeas has become, Ben deserves credit.

  19. MadDog says:

    @bmaz: @emptywheel: I’ll not deny credit to Ben for his initial outcry about the Latif decision, but I won’t go so far as to attribute the NYT’s Op-Ed as his inspiration alone.

  20. earlofhuntingdon says:

    Ms. Rogers Brown was one of the worst state supreme court judges in California. Its state bar, which has given free passes to some of the worst performing family law and civil practitioners in America, rated her “not qualified” for judicial office. Naturally, GWB gave her a lifetime appointment to the DC Circuit, second only to the Supreme Court in status. A pathetically weak Congress delayed her confirmation for two years. She joins Brett Kavanaugh on a DC Circuit gutted of quality and beholden to the opinions of its most conservative, executive power-adoring members.

    Ms. Rogers Brown is demonstrating her reflexive Nixonian belief that if the government does it, it can’t be wrong, whether owing to accident, negligence or intent. She is also demonstrating her ample ignorance, her deep cynicism, or both. Two-thirds of those detained in Gitmo, for example, were innocent, even by the coarse, self-serving standards of the Bush administration. Many were held for years, some were detained after their innocence was established as a convenience to the government. That is, to avoid publicizing the USG’s law breaking and its poor record at identifying our real enemies.

    Ms. Rogers Brown does her best to give the government’s incompetence a free pass. She cloaks it in two dollar words, but she does no more than extend a professional courtesy from sometime equally talented.

  21. Bob Schacht says:

    …Carl Levin may well believe his compromise language carries no risk to Americans given the guarantee of habeas, but with Latif as precedent in war on terror habeas cases, he’s wrong….

    And the “war on terror” is now our perpetual war, isn’t it? This reaffirms my conviction that most of these abominable decisions are due, directly or indirectly, to the damned AUMF.

    Bob in AZ
    Temporarily in HI

  22. Mary says:

    Great series of posts and discussions. Levin also ignores the fact tha he and Congress have sat back and said that the Exec can continue to hold those who are granted have as and have never called Obama to account for his egregious disregard of direct court orders; that Doj and Dod have had latitude granted to them by Congress and the courts to lie and to use torture and heinous criminal behavior to paper the files and to declare favorable evidence as well as evidence do their crimes “secret.”. He also ignores the Congressional collusion with OBama to ship detainees who have habeas rights to places where they do not have those rights and to evade habeas for Us citizens, and even their families and those surrounding them, by the expedient of mass assassination.

  23. Mary says:

    And Bob, to give her due, at one point in all the depravity, before Obama was elected and had succeeded in flipping torture opponents to proponents of assassination, Clinton did push the concept of substantially revising the Aumf.

  24. Mary says:

    Hcgorman. It is beyond comprehension. I don’t know how you guys keep going every day.

    I guess one of thE other things Levin forgets is that under the Geneva Conventions, any determination that someone disappeared from their country of seizure to a Us holding faciility like gizmo is NOT a combatant is the equivalent of saying that their shipment out of country was a war crime. So it’s not just the aspect of the jaillor’s report being given a presumption, but a report from someone who is a war criminal if their report is not believed. And all of this now under the “oversight” of Panetta who expressly provided on several occasions tha he will protect his torturers from ever having to be subject to any consequences for their torture.

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