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A Primer On Why Schuelke Report Of DOJ Misconduct Is Important

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Yesterday morning, the District of Columbia Court of Appeals entered its per curiam order denying a DOJ prosecutor’s motion for stay of the release of the Schuelke Report on prosecutorial misconduct in the Ted Stevens criminal case. As a result, barring unforeseen Supreme Court intervention, later this morning the full 500 page plus Schuelke Report will be released by Judge Emmet Sullivan of the DC District Court. What follows is a recap of the events leading up to this momentous occasion, as well as an explanation of why it is so important.

The existence of rampant prosecutorial misconduct in the Department of Justice case against Alaska Senator Ted Stevens was crystal clear before the jury convicted him in late October 2008 on seven counts of false statements in relation to an ethics investigation of gifts he received while in office. The trial judge, Emmet Sullivan of the District of Columbia District Court, could well have dismissed the case before it ever went to the jury for verdict but, as federal courts of all varieties are wont to do, he gave the DOJ the benefit of the doubt. It, as is all too often the case these days, proved to be a bridge too far for the ethically challenged DOJ.

Within a week of the ill be gotten verdict obtained by the DOJ in the criminal case, Ted Stevens had lost his reelection bid, after serving in the Senate for 40 years (the longest term in history). Before Stevens was sentenced, an FBI agent by the name of Chad Joy filed a whistleblower affidavit alleging even deeper and additional prosecutorial misconduct, and, based on the totality of the misconduct, Judge Emmet Sullivan, on April 7, 2009, upon request by newly sworn in Attorney General Eric Holder, dismissed with prejudice all charges and convictions against Ted Stevens.

But Emmet Sullivan did not stop with mere dismissal, he set out to leave a mark for the outrageous unethical conduct that had stained his courtroom and the prosecution of a sitting United States Senator:

Judge Emmet G. Sullivan, speaking in a slow and deliberate manner that failed to conceal his anger, said that in 25 years on the bench, he had “never seen mishandling and misconduct like what I have seen” by the Justice Department prosecutors who tried the Stevens case.

Judge Sullivan’s lacerating 14-minute speech, focusing on disclosures that prosecutors had improperly withheld evidence in the case, virtually guaranteed reverberations beyond the morning’s dismissal of the verdict that helped end Mr. Stevens’s Senate career.

The judge, who was named to the Federal District Court here by President Bill Clinton, delivered a broad warning about what he said was a “troubling tendency” he had observed among prosecutors to stretch the boundaries of ethics restrictions and conceal evidence to win cases. He named Henry F. Schuelke 3rd, a prominent Washington lawyer, to investigate six career Justice Department prosecutors, including the chief and deputy chief of the Public Integrity Section, an elite unit charged with dealing with official corruption, to see if they should face criminal charges.

On August 9, 2010, Ted Stevens died in a small plane crash in Alaska, never having seen the results of Henry Schuelke’s special prosecutor investigation into the misconduct during the Stevens criminal case. And lo, all these years later, we finally sit on the cusp of seeing the full Schuelke report in all its gory glory.

On November 21, 2011, Judge Sullivan issued a scathing order in relation to his receipt of Henry Schuelke’s full report, and how it would be reviewed and scheduled for release to the public. Actually, scathing is a bit of an understatement. The order makes clear not only is Schuelke’s report far beyond damning, but Judge Sullivan’s level of anger at the misconduct of the DOJ has Read more →

Latif: Presumption of Regularity for Thee, But Not for Me

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In her opinion holding that government documents submitted in habeas corpus petitions must be treated with a presumption of regularity, Judge Janice Rogers Brown, herself, did not follow her own order. And in spite of demanding that judges treat their documents with the presumption of regularity, the government didn’t do so consistently in this case either. The government and the judge did not credit what Judges Henry Kennedy and David Tatel found to be one of the most important pieces of evidence in the case: the government’s own intake form showing that Adnan Farhan Abd Al Latif was captured in Pakistan with medical records.

As you recall, Latif is a Yemeni who was captured by Pakistanis close to the Afghan border, then turned over to the Americans on December 30 or 31, 2001 (this was the period when the US was paying Pakistanis bounties for Arab “fighters”). In July 2010, Kennedy granted his habeas petition. But the government (which had cleared Latif for release on multiple occasions between 2006 and 2010) appealed, arguing that Kennedy erred because he did not find their single piece of evidence explicitly tying Latif to the Taliban accurate.

I believe that evidence–a report which appears to be the summary of a “debriefing” conducted around December 27 or 28 while Latif was in Pakistani custody (see PDF 25)–is an intelligence report with the serial number TD-314/00684-02 summarizing the stories of at least nine different detainees, all the non-Yemenis of whom have since been transferred out of Gitmo.

The government apparently admitted that its case “turn[s] on the accuracy” of this report (that admission–cited to page 5 at PDF 53–appears to be redacted in the original). And Rogers Brown acknowledged that the report had an obvious mistake on its very first page. But the government argued and Rogers Brown upheld that Kennedy should have taken the report at its word, should have presumed that the government accurately identified the sources of information named in the report and accurately recorded what those sources said. “It is well established that there is a strong ‘presumption of regularity’ for actions of government officials taken in the course of their official duties,” the government argued. Unless Latif provided really good evidence to the contrary (and the fog of war and the Pakistani involvement and the translation and transcription problems were not sufficient, apparently), Rogers Brown’s opinion held that Kennedy should have accepted that the report accurately recorded Latif confessing that he had undergone military training with the Taliban.

The government also argued–critically for their case, given that their case relies on just that one report–that Latif, who explains he did not say what the report claims he said, is not credible. The government argued that, in spite of the fact that he has provided the same general explanation for his trip to Afghanistan since he came into US custody a decade ago (that he was hoping to get affordable medical care for ongoing problems from a head injury he sustained in 1994) the courts must credit the government’s one report with all its acknowledged factual errors rather than Latif’s story.

To attack Latif’s credibility, the government claimed he provided no corroboration for his story.

He submitted no evidence from a family member, from Ibrahim, or from anyone to corroborate his claim that he was traveling to Pakistan in 2001 to seek medical treatment.

But that’s not true. In addition to Latif’s medical records from being treated in Jordan, a statement from Yemen’s Ministry of Public Health recommending he get more care, and a statement from a Gitmo doctor finding Latif’s medical claims to be credible, Latif’s intake report from December 31, 2001 (PDF 33; shown above) shows he had medical records with him when he was captured.

In his opinion, Kennedy cited the intake report. Latif’s lawyers cited the report in their response to the government’s appeal. And Tatel cited it in his dissent, noting that, “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.” Yet in spite of Rogers Brown’s claim that,

If a detainee introduces a government record to support his side of the story … he can benefit from the presumption as well.

She did not give him that benefit.

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Latif and the Misattribution Problem: “All Arabs Look the Same”

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I’m going to have at least two more posts on Adnan Farhan Abd Al Latif (for background see this post), both in response to this post from Mark Denbeaux and Ben Wittes’s response to it.

In this post, I want to demonstrate a possible mistaken assumption many of us have been making as we try to read through the redactions, which is that the only source of potential irregularity in the document at the heart of Latif’s habeas case may have arisen out of translation problems.

Denbeaux describes what he believes the circumstances of the report at the heart of the Latif case to be.

To illuminate how the presumption works, the majority utilizes a hypothetical that does not properly apply to Latif’s case. The hypothetical depicts a government intelligence officer taking the statement of a third party informant. The majority would have us presume that the officer accurately wrote down what the third party informant said, though not presuming the informant’s statement was itself true. This seems to make sense until you apply it to the facts of Latif. A fair and thorough reading of the opinion suggests that the document and information being redacted is a report from an interrogation of Latif that contains opponent-party admissions. The interrogation likely involved an interrogator, a translator, and Latif. Thus, the third party informant in the majority’s hypothetical is Latif himself.

But that’s not exactly what Janice Rogers Brown wrote in the majority opinion in this case. In addition to requiring us to presume that the officer accurately wrote down what the third party informant said, she also wants us to presume that the government officer accurately identified the source.

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. [my emphasis]

That’s an important distinction because there are hints that misattribution might be a significant issue in this case as well.

First, the government reply to the Circuit Court tries to refute just that possibility along with mistranslation. “Those similarities – which square with the external evidence about [redacted] make it highly unlikely the report resulted from a mistranslation or misattribution” (PDF 8)

Then, even going back to Latif’s CSRT in 2004–at which the allegations he fought at Kabul, the same allegations at issue here, were presented–he insisted he was not the person referred to in the unclassified summary of charges against him.

I told you I wasn’t the person they were referring to. I never went to the places that you said I did. I am not the person this case is based on.

Also remember that the government is not relying on a discrete, self-contained report on Latif alone. Rather, it has presented just fragments of a larger report, as David Tatel noted in his dissent.

The Report’s heavy redactions–portions of only [redacted] out of [redacted] pages are unredacted–make evaluating its reliability more difficult. The unredacted portions nowhere reveal whether the same person [one and a half lines redacted] or whether someone else performed each of these tasks. And because all the other [redacted] in the Report are redacted, the district court was unable to evaluate the accuracy of [redacted] by inquiring into the accuracy of the Report’s [redacted].

That’s important because several of the intelligence reports reporting on detainees Pakistan turned over to the US in December 2001 are group reports (I’ve determined this by searching on the report name among Gitmo files). TD-314/00684-02, which I suspect is the report in question, includes reports from at least 9 detainees. TD-314/00685-02 (obviously, a closely related report) refers to at least 7 detainees. Another, TD-314/00845-02, catalogs the transfer of at least 8 detainees (a number of whom are also mentioned in TD-314/00684-02)  from Pakistani to American custody. And IIR 7 739 3396 02 lists 84 detainees purportedly captured with Ibn Sheikh al-Libi. That is, even if I’m incorrect in my supposition that TD-314/00684-02 is the report in question, chances are quite good that the report deals with multiple detainees in the same report and the redactions Tatel describes serve to hide the other detainee stories told in the same report.

Furthermore, the internal distinctions between detainees in these reports do not appear to be clear cut. Read more →

Who Will Redact Our Next Big Constitutional Debate?

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In her Gitmo anniversary piece, Dahlia Lithwick, piggybacking on Adam Liptak’s earlier report, used the extensive redactions in the DC Circuit Opinion overturning Adnan Latif’s habeas petition to illustrate how little the courts are telling us about his fate, our detention program, and its impact on the most basic right in this country, habeas corpus.

But in the spirit of the day, I urge you to stop for a moment and look at the decision itself, so heavily redacted that page after page is blacked out completely. The court, in evaluating a secret report on Latif, can tell us very little about the report and thus the whole opinion becomes an exercise in advanced Kafka: The dissent, for instance notes that “As this court acknowledges, “the [district] court cited problems with the report itself including [REDACTED]. … And according to the report there is too high a [REDACTED] in the report for it to have resulted from [REDACTED].” Liptak describes all this as an exercise in “Mad Libs, Gitmo Edition.” But in the end, it’s also an exercise in turning the legal process of assessing the claims of these prisoners at Guantanamo Bay into something that replaces one legal black hole with another: pages and pages of black lines that obscure in words what has been obscured in fact. Americans will never know or care what was done at the camp and why if the legal process that might have transparently corrected errors happens behind blacked-out pages.

Latif’s classified petition for cert has just been filed.

We won’t get to see that petition, though, until after the court redacts it, at which point it will presumably look just like the Circuit Opinion–page after page of black lines.

It’s worth asking who will get to redact that petition, which is after all an important effort not only to free a man cleared for release years ago, but also to restore separation of powers and prevent detainees and Americans alike from being held solely on the basis of an inaccurate intelligence report.

That’s important because, thus far, the existing court documents in this case have been redacted inconsistently.

We know that because the dissent in the Circuit Opinion quotes language from Judge Henry Kennedy’s ruling, yet that language doesn’t appear anywhere in the unredacted sections of his ruling itself. For example, David Tatel refers to the “factual errors” Kennedy described (21; PDF 88) and cites Kennedy’s repetition of Latif’s explanation for having lost his passport–he “gave it to Ibrahim [Alawi] to use in arranging his stay at a hospital.” (37; PDF 104)  Yet the appearances of these phrases have been entirely redacted from Kennedy’s opinion (there are many more fragments for which the same is true, supporting general claims about the inaccuracy of the report, but they are less specific).

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

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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.

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Pakistani Bounty Claims: Adnan Farhan Abd Al Latif and TD-314/00684-02

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Benjamin Wittes has been complaining that no one besides Lawfare’s writers is looking closely at the DC Circuit decision in Latif.

Why has there been virtually no press coverage of the Latif decision? Other than this article on CNN’s web page, which actually ignores the aspect of the case that makes it jurisprudentially important, a search on Google News reveals none (other than Lawfare stuff).

Memo to the press: This case is important. It is far more likely, in my judgment, to provoke a cert grant than any habeas case the D.C. Circuit has decided to date. If and when it does so, it will present a novel and deeply important question to the Supreme Court: Whether the courts in reviewing these habeas cases should start with a presumption of the validity of government intelligence.

So I decided to take a closer look.

At issue is a Yemeni detainee, Adnan Farhan Abd Al Latif, picked up in Pakistan in December 2001 and alleged to have trained with al Qaeda. Judge Henry Kennedy granted Latif’s habeas petition last summer, largely because he found the government’s single most important piece of evidence–an intelligence report of some kind (which I’ll call the Report)–unreliable. The DC Circuit–with Judges Janice Rogers Brown and Karen Henderson in the majority and David Tatel in dissent–remanded the case on the issue of the detainee’s credibility. But on the more important issue–whether Kennedy was correct in dismissing the Report–they overturned the district decision. Here’s Wittes’ description of the evidentiary issue.

I think the document in question is a report with the serial number TD-314/00684-02 that I take to be the CIA’s report of Pakistani claims about a significant number of detainees they turned over to the US in December 2001–basically the intake report for a chunk of detainees, possibly (given the time and place) turned over for bounty.

Here’s my logic: Latif’s Gitmo file makes the same claim the government made in his habeas case: that Latif trained and then fought with al-Qaeda. But that entire report cites just one source–TD-314/00684-02–to make that claim. It cites TD-314/00684-02 to support the following assertions:

While detainee was with the Taliban, he encountered Abu Hudayfa the Kuwaiti; Abu Hafs the Saudi, and Abu Bakr from the United Arab Emirates or Bahrain. Detainee claimed he saw a lot of people killed during the bombings, but never fired a shot. Detainee then traveled to Jalalabad, AF, and crossed into Pakistan with fleeing Arabs, guided by Taqi Allah.

[snip]

Detainee’s recruiter is assessed to be senior al-Qaida facilitator Ibrahim Muhammad Abd al-Razzaq Baalawi, aka (Abu Khulud). Detainee admitted Ibrahim Aliwee convinced detainee to travel to Afghanistan for jihad and admitted staying at Abu Khulud’s residence for a short period in Kandahar.

[snip]

Detainee admitted receiving weapons training from the Taliban and then fighting in support of the Taliban on the front lines.

[snip]

Detainee admitted after training he was sent to the front lines north of Kabul. Detainee remained there until the Taliban retreated and Kabul fell to the Northern Alliance.

For the remaining assertions regarding Latif’s ties to Al Qaeda, the Gitmo report includes no citation.

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