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Latif’s Death: A Blow to the Head of Our System of Justice

I’d like to take issue with Ben Wittes’ post on the sadness of Adnan Farhan abd al Latif’s death. I certainly agree with Wittes that Latif’s death is terribly sad. But I object to Wittes’ take on three related grounds. Wittes,

  • Provides a problematic depiction of the justification for Latif’s detention
  • Misstates the importance of Latif’s clearance for release
  • Assigns responsibility for Latif’s continued detention to the wrong people

Wittes tries hard to downplay how much Latif’s death in custody damns Gitmo. But he does so by obscuring a number of key facts all while accusing Gitmo foes of building up “myths.”

A problematic depiction of the justification for Latif’s detention 

Before he talks about how sad this is, Wittes tries to refute the “myths” Gitmo opponents have spread. First, he argues, we should not be arguing Latif was innocent.

Guantanamo’s foes are building up a lot of myths about the Latif case—many of which I don’t buy at all. While I have criticized the D.C. Circuit’s opinion in the case, it does not follow from the decision’s flaws that Latif was an innocent man wrongly locked up for more than a decade. Indeed, as I argued inthis post, it is possible both that the district court misread the evidence as an original matter and that the D.C. Circuit overstepped itself in reversing that decision. The evidence in the case—at least what we can see of it—does not suggest to me that Latif had no meaningful connection to enemy forces. [my emphasis]

After twice using the squirreliest of language, Wittes finally settles on a lukewarm endorsement of the argument that Latif had some “meaningful connection” to the enemy. Curiously, though, he exhibits no such hesitation when he describes Latif this way:

Latif—a guy whose mental state was fragile, who had suffered a head injury, and who seems to have had a long history of self-injury and suicide attempts. [my emphasis]

That’s curious because whether or not Latif continued to suffer from his 1994 head injury was a central issue in whether or not Latif was credible and therefore whether he should be released. Moreover, it is one area where–as I explained in this post–Janice Rogers Brown fixed the deeply flawed argument the government made, thereby inventing a new (equally problematic, IMO) argument the government had not even plead to uphold the presumption of regularity that has probably closed off habeas for just about all other Gitmo detainees.

As you’ll recall, Henry Kennedy found Latif’s argument he had traveled to Afghanistan for medical treatment for his head injury credible because DOD’s own intake form said he had medical records with him when they took custody of him in Kandahar.

Furthermore, there are indications in the record that when Latif was seized traveling from Afghanistan to Pakistan, he was in possession of medical records. JE 46 at 1 (noting that Latif was seized in a “[b]order [t]own in [Pakistan]” with “medical papers”); JE 66 (unidentified government document compiling information about Latif) at 2 (stating that “[Latif] had medical papers but no passport or weapon” when he “surrendered himself to [Pakistani] authorities”).12

David Tatel, too, pointed to that in his dissent: “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 the government argued that Latif offered no corroboration for his story.

The court improperly gave no adverse weight to the conclusory nature of Latifs declaration, and the lack of corroboration for his account of his trip to Afghanistan, both factors which should have weighed heavily against his credibility.

[snip]

Latif also provided no corroboration for his account of his trip to Afghanistan. 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.

That’s a laughable claim. Latif submitted one of the government’s own documents as corroboration for his story. The government, however–in a brief arguing that all government documents should be entitled to the presumption of regularity–dismissed that corroborating evidence by implying that government document didn’t mean what it said–which is that Latif had medical papers with him when captured.

Respondents argue that these indications are evidence only that Latif said he had medical records with him at the time he was seized rather than that he in fact had them.

The claim is all the more ridiculous given that, unlike the CIA interrogation report the government argued should be entitled to the presumption of regularity, there’s a clear basis for the presumption of regularity of Latif’s intake form: the Army Field Manual. It includes instructions that intake personnel examine documents taken into custody with detainees. They don’t just take detainees’ words for it, they look at the documents.

I’m not suggesting that the government’s claim–that the screener just wrote down whatever Latif said–is impossible; I think it’s very possible. But they can only make that argument if they assume the intake screener deviated from the AFM, and therefore a document created under far more regulated conditions than the CIA report, and one created in US–not Pakistani–custody, should not be entitled to the presumption of regularity. Read more

SCOTUS Reviews the “Military Age Male” Standard on Thursday

One of the most consistent statements of outrage I’ve seen from people just coming to the horrors of the drone program is the military aged male criterion: the Administration’s assumption that all military age males killed in a drone strike must be combatants.

Mr. Obama embraced a disputed method for counting civilian casualties that did little to box him in. It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent.

Justin Elliott even got the Administration to reiterate the claim, albeit anonymously.

I gave the White House a chance to respond, and it declined to comment on the record. But speaking on condition of anonymity, an administration official acknowledged that the administration does not always know the names or identities of everyone in a location marked for a drone strike.

“As a general matter, it [the Times report] is not wrong that if a group of fighting age males are in a home where we know they are constructing explosives or plotting an attack, it’s assumed that all of them are in on that effort,” the official said. “We’re talking about some of the most remote places in the world, and some of the most paranoid organizations on the planet. If you’re there with them, they know you, they trust you, there’s a reason [you’re] there.” [brackets original]

What no one seems to get, however, is that between them, the Bush and Obama Administrations have been using that standard to detain people for over a decade. Indeed, there are probably over 30 men (I suspect the number is closer to 50) still at Gitmo being held on that standard, most of them for over a decade.

More importantly, SCOTUS will decide whether to uphold that standard on Thursday (or whenever they get around to accepting or denying cert on the 7 Gitmo cases they’ve been agonizing over for weeks).

The case is question is Uthman Abdul Rahim Mohammed Uthman’s habeas petition. Here’s how his cert petition describes the issues presented by his case.

Whether the Authorization of Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (‘‘AUMF”), authorizes the President to detain, indefinitely and possibly for the rest of his life, an individual who was not shown to have fought for al Qaeda, trained to fight for al Qaeda, or received or executed orders from al Qaeda, and was not claimed to have provided material support to al Qaeda.

The government has always yoked its detention authority closely to its targeted killing authority (see, for example, the reported justification for the Awlaki killing). And here you can replace “detain, indefinitely and possibly for the rest of his life” with “kill with a drone strike” and you’ve got precisely the authority that Obama (and Bush before him) claims to kill all men in the vicinity of suspected al Qaeda figures, even absent any claim they were al Qaeda fighters.

Read more

The Problem with Equating Travel Routes and Terrorism: 34 Dead Civilians

A few weeks back, Seton Hall published a report showing that since the DC Circuit reversed the habeas petition of Mohammed al-Adahi, “the practice of careful judicial fact-finding was replaced by judicial deference to the government’s allegations. Now the government wins every petition.” The report traced a number of factors that, before al-Adahi, judges examined with some skepticism, but after, fairly regularly accepted as evidence that a detainee was a member of al Qaeda.

Among those factors were staying in certain guest houses and traveling a particular route that–the government effectively claimed–meant you were a terrorist. Thus, it no longer mattered whether you had fought for al Qaeda. In the absence of more direct evidence, the government argued that where you traveled was one piece of evidence that you should be detained as a terrorist.

Tellingly, while the government has a declaration they routinely submit in Gitmo cases on the significance of guest houses to al Qaeda, they have not (as far as I know) ever submitted a similar declaration providing evidence for a tie between travel routes and al Qaeda membership (the closest they have is a report on Tora Bora which seems to argue “if you were in this vicinity you must have been in Tora Bora and, Osama bin Laden!”). In fact, that’s part of what infuriated David Tatel in the Latif case–the way the majority opinion simply accepted the government’s evidence about Latif’s travel back to Pakistan–where hundreds of innocent of Arabs were picked up at the time–as corroboration for the error-ridden report the government submitted as its main proof that Latif could be detained.

Latif left Kabul in November 2001 and then traveled through Jalalabad before eventually arriving at the Pakistani border where Pakistani 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 and with information in the Report, it is a helpful piece in the puzzle, bolstering its claim that the Report’s inculpatory statements are accurate.

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 I-95, “a known drug route.” Familiar with I-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 I-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 mqre like the lonely country road and thus worthy of consideration when it comes to distinguishing between enemy combatants and innocent civilians.

I raise all this not just to point you to the Seton Hall report, which is well worth your time. But because today, SCOTUS will decide whether or not to accept two cases–Latif and Uthman–in which these issues are central (we won’t find out whether they’ll take the cases until Monday).

And because of this WSJ report, showing the tragic result of assuming that travel patterns must be indicative of terror ties: 34 dead civilians, targeted by Turkish warplanes after a US drone spotted a caravan of Kurdish smugglers using a route frequented by PKK guerrillas.

Above and out of sight, a U.S. Predator drone loitered. It was on a routine patrol when U.S. personnel monitoring its video feeds spotted the caravan just inside Iraq and moving toward the Turkish border, according to U.S. officials and the Pentagon’s assessment of the fatal strike.

U.S. military officers at the Fusion Cell in Ankara couldn’t tell whether the men, bundled in heavy jackets, were civilians or guerrilla fighters. But their location in an area frequented by guerrilla fighters raised suspicions. The Americans alerted their Turkish counterparts.

[snip]

Then Turkish warplanes appeared. “It was like a lightning bolt,” Mr. Encu said. “I saw a bright light and the force of the explosion threw me to the ground…When I turned my head I could see bodies on fire and some were missing their heads.”

Read more

The Government Continues to Play Redaction Games with Latif

I’ve now read all the documents the government issued and reissued on April 30 in some detail (District Court Opinion; Circuit Opinion; Cert Petition; Government Response; Latif Reply). As I’ve noted, in addition to releasing their own response to Adnan Farhan Abd al Latif’s cert petition, the government also released less-redacted versions of the previous filings in the case.

As it turns out, the government primarily released a lot of stuff that would make Janice Rogers Brown’s opinion look less batshit crazy, if you ignore that they had been hiding her Wizard of Oz analogy in the name of national security. For example, it released information making it clear that all the government’s data on whether Latif is married or not is inconsistent, which of course is all blamed on Latif.

The ploy seems to have worked; Ben Wittes, who seems unconcerned that three reports on Latif (his DOD intake form and two conflicting reports from the same interview at Gitmo) prove that such intelligence reports cannot practically be afforded the presumption of regularity without the government’s own case files–and frankly, their case here–falling apart, now thinks “Judge Brown’s reading of [the evidence against Latif] strikes me as very likely preferable to the one the district court adopted.”

That said, with the newly released information, I’m increasingly convinced they’re using the redaction process not to protect national security, but to cheat.

The redactions get worse to make it harder to find problems with the government’s recruiter story

There are a few examples where in this round, the government has actually redacted more information on the second round–mostly information on Ibrahm al-Alawi starting on page 10 in the District Court opinion (compare the “less redacted version” with the original release). Since this stuff is all already available in other documents, this mostly amounts to pettiness, but it does serve to hide a central part of the government’s argument. They claim the similarities between Latif’s story about the charity worker Ibrahim al-Alawi and the known al Qaeda recruiter Ibrahim Balawi (who is usually called Abu Khalud) provides corroboration for the government’s story. Yet none of the eight or so detainees recruited by Abu Khalud IDed Latif. And–as I hope to show–the records on these other detainees suggest they should have been able to, if Abu Khalud and al-Alawi were really the same guy. In other words, while this redaction doesn’t limit the amount of information out there, it does make it harder for people to quickly see how flimsy one crucial part of the government’s argument is.

Adding half a line in the redaction process

More curious appears on page 1 (PDF 68) of the Tatel’s opinion. There appear to be about half a line-which is redacted–that has been added to the third and fourth line of the opinion. As a result, Tatel’s reference to “(the Report)” is shifted onto the next line and the alignment of the entire rest of the paragraph changes.

Here’s the original release:

And here’s the latest release:

Now, the space is about what a reference to the document name–TD-314/00684-02–would take up on the line. Maybe they’ve simply added that. But still, what’s the protocol for just adding something into the record just before SCOTUS reviews it? Did Tatel approve this addition?

Hiding Latif’s explanations for how TD-314/00684-02 implicated him

There’s another apparent redaction that–if I’m right about its content–serves to prevent us from seeing a thoroughly unclassified but nevertheless critical part of Latif’s (or perhaps just David Tatel’s) argument. There are repeated discussions of Latif’s theory for how TD-314/00684-02 got so screwed up as to implicate him in fighting for the Taliban. Kennedy discusses it at 14–though almost all the explanations remain redacted. Rogers Brown summarizes these at 4, though one clause remains redacted.

But Latif says his statements were misunderstood or, alternatively, [redacted] were misattributed to him.

There’s a long discussion on 26 in Rogers Brown and on 24-25 (PDF 92-93) in Tatel. All of these have been newly released in significant part. Except for a key part of Tatel’s argument.

Read more

Going to Jihad with the Medical Records You Have, Not the Jihad Fighters You Might Want

I want to apologize to Janice Rogers Brown. In this post, I suggested she agreed with the argument the government used to dismiss evidence that corroborated Adnan Farhan Abd al Latif’s explanation for why he traveled to Afghanistan.

As I explained, Latif’s US intake form recorded that he had medical records with him when he was taken into US custody. Both David Tatel and Henry Kennedy found those records to corroborate the story Latif has told for a decade about why he traveled to Afghanistan: he was seeking affordable medical care to treat a head injury he had sustained in 1994. The government, however, dismissed the indication that Latif had medical records with him, suggesting that the notation provided “evidence only that Latif said he had medical records with him at the time he was seized rather than that he in fact had them.”

The government, at the same time as arguing that a report of an interrogation conducted in Pakistani custody should be afforded a presumption of regularity, was arguing that the solider that filled out Latif’s US intake form was not following the procedure laid out in the Army Field Manual. It was, in short, arguing that a Pakistani intake report should be presumed regular, but not a US military intake report.

I mistakenly assumed Rogers Brown must have accepted the government’s argument that Pakistani intake reports should be afforded the presumption of regularity but not US intake reports.

But as a newly declassified passage makes clear, that’s not what Rogers Brown did. Instead, she accepted Judge Kennedy’s treatment of the intake report as regular, but argued that the detail that Latif had medical records with him when captured reinforced her own argument that the Pakistani intake report should be presumed to be regular.

“[T]he reliability of evidence can be determined not only by looking at the evidence alone but, alternatively, by considering sufficient additional information permitting the factfinder to assess its reliability.” Bensayah v. Obama, 610 F.3d 718, 725-26 (D.C. Cir. 2010). The only piece of extrinsic evidence the district court relied on does nothing to weaken the presumption of regularity. The district court found Latif was captured with medical records in his possession. based on a government document’s statement to that effect. . The record contains a medical benefits referral from Yemen’s Ministry of Defense, a “medical report” from a Jordanian Hospital confirming that Latif was admitted in 1994 for a “head injury,” and a report from Yemen’s Ministry of Public Health recommending in 1999 that Latif pursue further treatment at his own expense. This evidence corroborates Latif’s assertions about his medical condition and incidentally corroborates the Report’s description of his medical trip to Jordan-but it does nothing to undermine the reliability of the Report. The Government is tasked with proving Latif was part of the Taliban or otherwise detainable-not disproving Latif’s asserted medical condition. There· is no inconsistency between Latif’s claim that Ibrahim promised him medical treatment and the Report’s statement that Ibrahim recruited him for jihad. Both may be true. For example, Ibrahim could have promised Latif the medical treatment he needed to induce him join the Taliban.

That was awfully nice of Judge Rogers Brown, to fix the fundamental flaw in the government’s argument about presumption of regularity (that is, that they weren’t even affording their own documents the presumption of regularity).

But that makes Rogers Brown’s Wizard of Oz tale even more fantastic. She argues that because some witch–posing as a good witch, no doubt–told Latif he could find a new head from a wizard in Afghanistan, and because Latif went there with medical records in tow to meet that wizard, and according to a report she finds credible never once fired a shot, that constitutes proof that our poor Tin Yemeni Man in search of an uninjured brain was a member of the Taliban.

Beware, America. Because not only did Rogers Brown’s decision permit the government to detain anyone based on any intelligence report they can conjure up, regardless of how obviously unreliable. But she has also equated searching for medical care with terrorism.

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

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.

Read more

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

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

Exhibits in Latif’s SCOTUS Petition Prove Interrogation Summaries Should Not Be Entitled to Presumption of Regularity

In his book, The Black Banners, former FBI Agent Ali Soufan describes multiple occasions when FBI and CIA reporting on a subject did not match. For example, he describes how his reporting and that of a CIA officer, Fred, differed during the investigation into the Millenium Plot.

My problems with him started within the first couple of days, after Pat D’Amuro received a phone call from FBI headquarters saying that my reporting of intelligence and Fred’s reporting of the same event didn’t match up.

[snip]

An investigation was done and the Jordanians were consulted, and all concerned were advised that my reporting was correct and Fred’s was faulty.

[snip]

Because of his flawed analysis, a total of twelve [redacted]–intelligence reports–had to be withdrawn. If portions of a cable are shown to be inaccurate, the entire cable is viewed as unreliable and suspect. (138-39)

Soufan elsewhere claims “there were discrepancies between information that went through CIA channels and what was reported in FBI channels” in some other cases. (119)

Adnan Latif’s redacted petition for cert has been released. The petition–plus the exhibits submitted with it–show that similar problems plagued at least one pair of reports on Latif. And those discrepancies, by themselves, prove that giving government interrogation summaries the presumption of regularity is untenable.

The pair of reports are DOD and FBI summaries of an interrogation of Latif conducted on May 29, 2002 (see PDFs 91 and 93-94) . As I noted in this post, even Latif’s factual return made it clear there were discrepancies between the two reports (though the unredacted parts of the factual return didn’t admit they recorded the same interview). The petition summarizes these discrepancies.

The reports, however, have numerous discrepancies. For example, one states that he is a Yemeni, App. 223a, while the other says both that he “claims Bangladeshi citizenship” and is a member of a Yemeni tribe, App. 221a. One says that he attended secondary school for “two or three years, and eventually graduated,” App. 223a, while the other states that he claimed to have “never graduated from high school,” App. 221a. It is obvious that at least one or perhaps both documents failed accurately to report what the translator was telling the interrogators.

The Bangladesh claim, incidentally, appears to derive from just one report, Latif’s Knowledgability Brief from February 2002 (which was not cited in his Gitmo file); his intake form (PDF 33-34) from December 31, 2001 clearly identifies him as an Arabic speaking Yemeni and notes he claimed he was picked up because he was an Arab. So it appears (though we can’t be sure) the DOD report writer wrote what would be consistent with the KB (and cited it), while the FBI report recorded what Latif said in the interview.

One more important discrepancy between the DOD and FBI reports from May 29, 2002: the DOD report says Latif was 16 when he suffered his head injury. The FBI report said he was 14. Latif’s factual return cites the differing ages as proof he kept changing his story (something similar happened in one of his CSRTs, but the confusion arose from his sense of time); but clearly here it was a difference of reporting, not of his report.

A footnote in the petition reveals the government tried to attribute these discrepancies to Latif changing his story until it became clear the fault lay in the inconsistency of the report writing of one or both of his interrogators.

The government initially argued that the reports were so inconsistent that they proved that Latif, like a guilty man, was changing his story from one interrogation to another. When it was pointed out to the government that the reports were evidently from the same interrogation, and that the discrepancies were created by the government, not by Latif, the government abandoned this argument.

Now, neither of these reports are the report that claims Latif trained with the Taliban, what I suspect is TD-314/00684-02. So showing that the reporting process of that May 29, 2002 interrogation introduced discrepancies is not sufficient to prove that the report at issue suffered from the same–and worse–kind of reporting problems.

But it’s significant to this case that even among the reports not written in the fog of war–as the report at issue was–the reporting process of one or both of these reports introduced (at best) confusion into the report, if not outright inaccuracy. The government, faced with that fact in a case in which they were at the same time insisting that all interrogation reports be accorded the presumption of regularity, simply blamed the detainee and then just dropped it.

If Janice Rogers Brown has her way and such interrogation reports are granted the presumption of regularity, then we must accept that a reporting process that describes Latif as both Bangladeshi and Yemeni, as both as a madrassa graduate and as someone who did not graduate, to have not introduced any inaccuracies.

Now, Henry Kennedy wasn’t pointing to the obvious deficiencies in the Gitmo files when he ruled an interrogation report not credible (though he did suggest those reports might suffer from translation problems, something that several exhibits submitted with the cert petition support). Kennedy was making a much more modest argument: that interrogation reports produced in a process with none of the organization that had been imposed at Gitmo by May 2002 should not be presumed to be accurate records of an interrogation.

If the government can’t even produce consistent reports from a relatively orderly prison, then why has the DC Circuit mandated that courts accept interrogation reports from far more chaotic processes?

One final note: Soufan suggests that if CIA cables have been shown to have inaccuracies, the entire cable is withdrawn. Even Rogers Brown admits that the report in question included an “obvious mistake.” If, as I suspect, this is a CIA cable, and if it has such obvious mistakes that even a Circuit Court judge sees it, then why hasn’t the CIA withdrawn the cable?

Or have they?

Who Will Redact Our Next Big Constitutional Debate?

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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Latif: The Administration Blew Up Habeas with a Detainee They Determined Could Be Transferred

There are a few more details that need to be readily available about Adnan Farhan Abd al Latif, the Yemeni Gitmo detainee whose habeas corpus petition led DC Circuit Judges Janice Rogers Brown and Karen Henderson to gut habeas. Most importantly, almost two years before the Administration used an unreliable intelligence report to justify his detention, the Bush Administration had determined he could be transferred out of DOD control.

DOD Recommended Transfer of Latif in 2006

Latif’s Gitmo file makes that clear.

JTF-GTMO recommends this detainee for Transfer Out of DoD Control (TRO). JTF-GTMO previously recommended detainee for Transfer Out of DoD Control (TRO) on 18 December 2006.

So on December 18, 2006, DOD determined they should transfer of Latif. On January 17, 2008, they determined they should transfer of Latif. (This is a point Judge Henry Kennedy made in his ruling, citing slightly different documents.) Presumably in January 22, 2010, Latif was among the 30 Yemeni detainees the Gitmo Task Force determined designated for “conditional” detention:

30 detainees from Yemen were designated for “conditional” detention based on the current security environment in that country. They are not approved for repatriation to Yemen at this time, but may be transferred to third countries, or repatriated to Yemen in the future if the current moratorium on transfers to Yemen is lifted and other security conditions are met.

The Bush Administration had designated 15 detainees for transfer; the Obama Administration transferred 6 of those in December 2009, before the UndieBomber attack, Mohammed Odaini got sent back in 2010 after winning his habeas petition, and one more Yemeni got transferred to a third country. Which suggests that Latif is among the unlucky 7 detainees whom both the Bush and Obama Administrations believe could be sent home, if it weren’t for the security situation in Yemen.

In other words, Latif remains in Gitmo because our partner in Yemen, Ali Abdullah Saleh, doesn’t control the country, and because Umar Farouk Abdulmutallab tried to blow up a plane, not because Latif himself represents a big threat.

Nevertheless, the Administration insisted on making a case, based on a dodgy intelligence report, to legitimize their continued detention of a man whom they had already decided could be transferred.

TD-314/00684-02 Is the Document Being Used to Hold Latif

As I laid out here, they did so primarily with an intelligence report from early 2002 that sorted through a large number of detainees turned over to the US by Pakistan in late 2001.

By comparing Latif’s Factual Return to his Gitmo File, we can be almost certain that this report is the cable numbered TD-314/00684-02. Read more