Janice Rogers Brown Sings “Follow the Yellow Brick Road” as She Guts Habeas

The government has released a new version of the DC Circuit opinion in the Latif case. (Via DC Circuit Review h/t scribe)

I suppose it should comfort us that the government no longer considers this passage from Janice Rogers Brown’s opinion to be classified. [I’ve underlined the bits the government previously claimed were classified; see PDF 39-40 to compare.]

What makes Latif’s current story so hard to swallow is not its intrinsic implausibility but its correspondence in so many respects with the Report he now repudiates. Like Dorothy Gale upon awakening at home in Kansas after her fantastic journey to the Land of Oz, Latif’s current account of what transpired bears a striking resemblance to the familiar faces of his former narrative. See THE WIZARD OF Oz (MGM 1939). Just as the Gales’ farmhands were transformed by Dorothy’s imagination into the Scarecrow, Tin Man, and Cowardly Lion, it is at least plausible that Latif, when his liberty was at stake, transformed his jihadi recruiter into a charity worker, his Taliban commander into an imam, his comrades-in-arms into roommates, and his military training camp into a center for religious study.

Though it raises real questions why it was classified in the first place. Really? Our government classified a Wizard of Oz analogy! And it wonders why we doubt the men behind the curtain.

And a good thing they released it, too. It makes Rogers Brown’s comment earlier in the opinion analogizing Dorothy’s Uncle Henry to Judge Henry Kennedy look every bit as disrespectful as it did in the first draft…

Even doting Uncle Henry managed to evaluate Dorothy’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 plausibility.

But at least we know that Rogers Brown–and not Kennedy–is the one who has gotten lost in Oz.

But a look at numbered page 21 shows all you need to know about the government’s good faith in this reconsidered redaction. The government admits details that all-but prove it is what I speculated it was–TD-314/00684-02, an interrogation report based on a Pakistani intake interview and therefore subject to Pakistani’s desire for bounty. On page 14, for example, it admits this report came from Latif’s first interrogation (and therefore before he was in US custody). On page 19, it admits the report is a screening interview (an admission left unredacted in at least one other document in this case). On page 4 of Henderson’s concurrence (PDF 54), she reveals the report was “written” in late December 2001–which therefore dates it to the period when Latif was still in Pakistan. But page 21, where it presumably describes the circumstances of the report–in which Pakistanis presumably had every incentive to spin tall tales as Arab prisoners did–remains largely redacted.

Nowhere in the newly revealed passages does the government explain the circumstances of the interrogation and, if relevant, the involvement of the Pakistanis, and therefore not just additional opportunities for miscommunication, but also the profit motive driven by our bounty system. And also the fact that a slew of reports–including some of the interrogations purportedly also reported in TD-314/00684-02–seem to build a generic narrative around certain details. Admit you were in Kabul? Then the Pakistanis will supply a story about being at the rear lines for the Taliban.

Just like Frank Baum did.

Ultimately, though, this is the most important newly released passage.

True, the court cited problems with the Report itself, including its substantial redactions, [redacted] its reference to Latif’s “hand” instead of his head injury, [two lines redacted] and the perceived lack of corroboration. But the Report was not so inherently unreliable that it could be discarded in the absence of countervailing evidence offering a more likely explanation for Latif’s travels. See supra pp. 20-31. And Latif offers no evidence to rebut the Government’s presumptively reliable record aside from his own statements and the Report itself. A merely “plausible” explanation cannot rebut the presumption of regularity. See Riggs Nat’J, 295 F.3d at 21. The other two grounds for the court’s decision-minor transcription errors in the Report and a lack of corroboration for its incriminating statements-do not satisfy that standard. As we have already discussed, see supra pp. 21-27, the mistakes in the Report provide no support for the much more extensive fabrication Latif alleges. And to the extent the district court relied on a lack of corroborative evidence to discredit the Report, it highlighted its failure to afford the document a presumption of regularity. By definition, a presumptively reliable record needs no additional corroboration unless the presumption is rebutted.

It reveals that whoever wrote the report in question didn’t know his ass–or rather, a hand–from the hole in Latif’s head. And it reveals that Janice Rogers Brown is prepared to let the government present any document, no matter how obviously flawed, and based on whatever fiction that document presents, build an entire new world.

If this Report were true someone–one of the eight people who admitted to being recruited by Latif’s alleged recruiter, any of the many people who did fight out of Kabul, or the people alleged to have trained with him–would have been able to ID Latif. The government has had 10 years to find someone to do that. And no one–not a single one–corroborates the fantasy that Janice Rogers Brown is so sure deserves treatment as presumptively reliable.

If only we had ruby slippers to click together to get out of Rogers Brown’s fantasy world.

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.

5 replies
  1. JTMinIA says:

    Do I have this correct?

    By the Rogers Brown rule, no matter how many specific elements of some document or filing have been shown to be outrageous fabrications, anything not (yet) shown to be false must be taken as true.

    By the Welch rule, no matter what they do, corrupt prosecutors will never be held accountable for what they did.

    Thus, prosecutors (and those arguing against Habeas) have all the incentive in the world to throw in any piece of known nonsense in any court filing, on the off chance that some of it will slip through and help them; they have zero incentive to omit known nonsense because there’s no cost to them when they’re called on it.

  2. Peterr says:

    If we’re going to stick with the Oz theme, I’m thinking JRB might be in great danger, should the sprinkler system in her courtroom ever go off while she’s hearing a case.

    But instead of thinking about Oz, reading this makes me think of Lewis Carroll and the trial at the end of Alice’s Adventures in Wonderland.

    `There’s more evidence to come yet, please your Majesty,’ said the White Rabbit, jumping up in a great hurry; `this paper has just been picked up.’

    `What’s in it?’ said the Queen.

    `I haven’t opened it yet, said the White Rabbit, `but it seems to be a letter, written by the prisoner to–to somebody.’

    `It must have been that,’ said the King, `unless it was written to nobody, which isn’t usual, you know.’

    `Who is it directed to?’ said one of the jurymen.

    `It isn’t directed at all,’ said the White Rabbit; `in fact, there’s nothing written on the OUTSIDE.’ He unfolded the paper as he spoke, and added `It isn’t a letter, after all: it’s a set of verses.’

    `Are they in the prisoner’s handwriting?’ asked another of they jurymen.

    `No, they’re not,’ said the White Rabbit, `and that’s the queerest thing about it.’ (The jury all looked puzzled.)

    `He must have imitated somebody else’s hand,’ said the King. (The jury all brightened up again.)

    `Please your Majesty,’ said the Knave, `I didn’t write it, and they can’t prove I did: there’s no name signed at the end.’

    `If you didn’t sign it,’ said the King, `that only makes the matter worse. You MUST have meant some mischief, or else you’d have signed your name like an honest man.’

    There was a general clapping of hands at this: it was the first really clever thing the King had said that day.

    `That PROVES his guilt,’ said the Queen.

    `It proves nothing of the sort!’ said Alice. `Why, you don’t even know what they’re about!’

    `Read them,’ said the King.

    The White Rabbit put on his spectacles. `Where shall I begin, please your Majesty?’ he asked.

    `Begin at the beginning,’ the King said gravely, `and go on till you come to the end: then stop.’ . . .

    The other literary piece going through my head after reading this is, of course, Kafka’s “The Trial.”

  3. earlofhuntingdon says:

    That Ms. Rogers Brown would be a sycophant for government overreach was well-known at the time of her appointment, which is why the Senate delayed confirmation of her approval for so long.

    That Mr. Obama has performed so miserably in appointing his own judicial nominees, ceding the field to prior Republican appointments for another generation, makes clear he likes Ms. Rogers Brown just fine, despite her being a poster child for the excesses given the oxymoronic epithet “Texas justice”.

  4. orionATL says:

    it says a great deal about this u.s. appellate court judge,

    that she mocks the prisoner and his story.

    it tells me that she is psychologically unfit to hold the position and wield the power she does.

    it says a great deal about this judge,

    that she describes herself as “libertarian” here:


    “… Political views

    In a speech to the Federalist Society, Brown called the group a “rare bastion (nay beacon) of conservative and libertarian thought” and that the “latter notion made your invitation well-nigh irresistible”[15]

    In the same speech, she gave hints of her philosophical foundations. She described private property as “the guardian of every other right”. Later in her speech she described collectivism as “slavery to the tribe” and that government was a “leviathan [that] will continue to lumber along, picking up ballast and momentum, crushing everything in its path”.[15]…”

    how is it that a professed libertarian can side with the leviathan of government against an individual who may been unjustly incarcerated by that government, and may remain incarcerated for life.

    the janice rogers brown revealed in this decision is a cruel person, a hypocrite who professes libertarianism but practices authoritarianism.

    how is it that the republican party of the last two decades has become such a magnet for so many of these cruel, ignorant, foolish power-wielders.

    and make no mistake about it, brown proves herself a very foolish judge,

    a judge so ignorant of the political history and philosophy that generated the american constitution that she should be asked to resign or be impeached.

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