Guantanamo Lawyer on Judicial Presumption of Gov't Secret Evidence (the Latif ruling)

The following cross-post was a contribution to the blog Lawfare, and are the comments of Guantanamo attorney Sabin Willett, who represented the Uighurs in the Parhat and Kiyemba cases.

I originally came across the Willett statement from a cross-post of the same material at Andy Worthington's blog. Worthington gives the legal background leading up to the recent decision in the Latif habeas case, a decision that sent chills down the spine of every person who takes seriously the rights of the accused, and the rule of law. (PDF link to the Latif decision, but watch out: it's heavily redacted.)

Worthington:

The case that first shut down habeas corpus was Adahi v. Obama, involving a Yemeni, Mohammed al-Adahi, whose habeas corpus petition was granted in August 2009, on the correct basis that, although al-Adahi had accompanied his sister to Afghanistan for her marriage to a man with purported connections to al-Qaeda and the Taliban, he himself had no connection to either group, and was just a chaperone.

For Judge Randolph, however, ideology is more important than facts, when it comes to the Guantánamo prisoners, and, as a result, he granted the government’s appeal in Adahi, and, essentially, ordered the lower court judges to give more credence to the government’s claims than they had been doing. As a result, every habeas petition since July 2010 has been denied, and other successful petitions have been either reversed like Adahi (three in total) or vacated, and sent back to the lower court to reconsider (two in total).

The latest monstrous ruling delivered by Circuit Court judges (Judge Janice Rogers Brown and Judge Karen LeCraft Henderson, who share Judge Randolph’s ideological bent) came in October in the case of Adnan Farhan Abdul Latif, a Yemeni, with undisputed mental health problems, and a viable explanation for being in Afghanistan for medical reasons, who was the last prisoner to have his habeas petition granted before Judge Randolph’s new rules in Adahi took effect.

The ruling in Latif was not made available until last month, and, disturbingly, the judges took their endorsement of the government’s position one step further, declaring that the habeas judges must now regard the government’s own intelligence reports as reliable. This not only appalled the dissenting judge, David Tatel, but also appalled lawyers for the prisoners, who have long been aware of the unreliability of the intelligence reports relating to the prisoners. Anyone doubting this is directed to my ongoing series, “The Complete Guantánamo Files,” in which I analyze the chronic and repeated failures of intelligence revealed in the classified military files released by WikiLeaks last April.

Thanks to Benjamin Wittes, with whom I have had some serious disagreements, for posting the original.

Willett:

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.

But Latif, and before it Adahi, are not just law-of-war cases. They may raise the eyebrow of civil procedure sachems as well.

Because despite the gnashing of teeth over Boumediene’s failure to issue a manual, the Guantanamo habeas cases have mainly been about facts. Wedding guest or soldier? By the time review finally got on its legs in 2008, the President had had years to winnow away the silly and outrageous detentions (and Congress hadn’t yet taken up the blood sport of preventing him from doing so). Logically, we would have expected the government to have good facts in cases that remained, and to win most of them.

Something like that was happening in the district court, but then something else quite illogical began happening. On appeal, the government began to run the table. No habeas win could survive.

The district court was finding facts from old, cold and unreliable records, and so uniform results would have been a little surprising, but still possible, given the trial court’s broad factfinding discretion. You’d expect regular affirmance on appeal of both wins and losses, because in civil practice, the trial court‘s fact-finding is rarely disturbed. So where district court results are non-uniform, it is surprising–one might even say, conditionally improbable–that appellate results should make them so.

What’s going on here? The circuit is making up a new standard of appellate review.

Take Adahi. To a first approximation, Adahi is an “Oh, come on!” case: al Farouq, bin Laden at Sister’s wedding, shady characters on the bus, the Casio insignia–come on! But Judge Kessler wasn’t asking whether Adahi had thuggy associates. She was after the legally-relevant nut: has the government shown he is an enemy soldier? If General Petraeus attends my sister’s wedding, am I therefore a soldier? Suppose I go to Quantico and after ten days, they throw me out. Am I a Marine? (In doing this work I met a number of Marines. Each – I am quite sure of this – would declare ten days insufficient to make a Marine of me.)

As a matter of appellate procedure, the problem was this: Adahi testified. Judge Kessler found that testimony credible (leaving Farouq, denying he trained troops there). Adahi’s entire testimony is, “I wasn’t a soldier.” So if we have witness testimony the court deems credible, and it refutes enemy status, how does the circuit flip the judgment on appeal?

By not believing him, and crediting other evidence. That used to be for the trial court – remember?

My guess is that Judge Randolph saw the appellate review problem, for in addition to his famous innovation, he noted Judge Kessler’s failure to make an express credibility determination. Well, okay. But she did find facts for which the only record evidence was Adahi’s testimony, so she must have found him credible. If we’re not sure about that, why not remand for clarification?

Latif presents none of these distractions. Even the government agrees that the circumstantial evidence is down to one document, on which everything turns.

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.

Latif should worry the Law Faithful, too. If my client were stuck with this presumption, the first thing I’d bawl for is discovery of every scrivener, interpreter, interrogator – every scrap, jot and tittle behind the document. Last time we did that, in Bismullah, CIA averred the republic would be shaken to its knees.

* * *

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?

Even Odysseus headed for home after ten years.

The other evening I saw an old friend whose client was, in 2001, an enemy belligerent under any definition. He was released from Guantanamo many years ago. He has a job, a family, a peaceful outlook on life; he’s grown up. Why is he out, and Latif in? Because he hales from the west. After ten years, it’s not about security any more. It’s all about politics: the politics of the 2012 elections, the politics of where you’re from.

Benjamin Wittes Responds: "Happy to be a government proxy"

In an an arrogant riposte to an earlier posting of mine [at FDL's The Dissenter], Lawfare blogger and member of the Hoover Institute Task Force on National Security and the Law, Benjamin Wittes, proclaimed he is "Happy to be a government proxy."

Wittes' tongue may seem somewhat in cheek, but he really means it. "Government proxy" how? In my earlier article criticizing both Wittes and Adweek columnist Alex Koppelman for their poorly resourced and vituperative articles attacking Scott Horton's investigation of the 2006 deaths of three Guantanamo detainees, published by Harper's Magazine in January 2010. Department of Defense investigations had labeled all three deaths suicides.

Moreover, when both Koppelman and Wittes were cited in a footnote to a Department of Justice brief (PDF) defending numerous government officials against a lawsuit brought by parents of the dead detainees -- Koppelman and Wittes' stories were cited as examples of “numerous articles addressing serious flaws with the HARPER’S MAGAZINE story"-- I noted that the two authors "wittingly or not" had become "government proxies in the matter of the Guantanamo suicides controversy."

Wittes replied, sarcastically, "Wow, I'm Verklempt." He continued:

Turns out that DOJ, in a footnote in a brief before the D.C. Circuit, cited this post of mine from some time back – in which I expressed dismay that Scott Horton and Harpers had received a National Magazine award for a feature article devoted to the spurious suggestion that U.S. service personnel had tortured three Guantanamo detainees to death. The passing citation in the brief prompted this howl of rage from a new blogger over at Firedoglake named Jeff Kaye, who had earlier written a defense of the Harpers article....

Happy to be a government proxy on this one. Robert Loeb and Barbara Herwig, who filed the brief, hereby have my blessing to use any Lawfare post their hearts may desire in defending this suit. I’ll live with myself quite happily, thank you.

Wittes, who saved his strongest complaint for a typo of his name in the post, repeats the lie that Horton's article claimed the three Guantanamo detainees -- Salah Ahmed Al-Salami, Mani Shaman Al-Utaybi, and Yasser Talal Al-Zahrani -- were "tortured to death" by "U.S. service personnel." In fact, Horton never makes any such claim in the article. It is true that the Al-Zahrani's father is quoted in the article as asserting his son was tortured and killed, but that is very different than Horton coming to such a conclusion. Instead, Horton built a case, based upon contradictions in the government's investigations, eye-witness testimony, independent autopsy, and revelations concerning a CIA (or JSOC?) black site at Guantanamo, that the deaths were "possible homicides."

By claiming Horton implicated "service personnel" in torture or possible homicide, Wittes means to tar Horton with irresponsible attacks against rank-and-file U.S. servicemen and women who have sacrificed much to serve their country. If suspicion falls on anyone, it is on interrogators or agents for the CIA or JSOC. Since writing the story, Horton has been calling, as have the parents, for an independent investigation.

Wittes' portrayal of the DoJ citation of his work is strangely spurious as well. He says that the citation in the brief filed with the D.C. Circuit came from a "post of mine some time back." In fact, the post was dated May 23, 2011, the same day as Koppelman's Adweek screed. The brief, signed by government attorneys in DoJ's Civil Appellate Division, Robert Loeb and Barbara Herwig, as well as by Assistant Attorney General Tony West, was filed on July 13, a mere seven weeks after the Koppelman/Wittes articles. Perhaps we should allow for the subjectivity of time sense and grant Wittes his belief that his article had appeared "some time back" in relation to the government brief. My subjective sense of the affair is that it was quite contemporaneous.

I have very little patience for academic apologists for torture like Wittes. I suppose some, including Wittes himself, might take umbrage at such labels, but an apologist is what he is, no matter how even-handed and reasonable -- a man who supposedly takes no extreme positions -- he presents himself. Take, for instance, his defense of his friend William Haynes' approval of torture techniques at Guantanamo. In an article for The New Republic last year, Wittes defended Bush administration attorneys like Haynes, Jack Goldsmith, John Yoo and Jay Bybee, castigating “the vilification of government lawyers involved in the war on terror.”

Admittedly, Wittes said, Haynes was a friend of his "about whom I do not pretend to be neutral." But rather than forgo comment because of his personal connection (Jack Goldsmith, too, is a personal friend and a professional collaborator, having written articles with Wittes; Goldsmith also is one of two other major contributors, with Wittes, to the blog Lawfare), he defends Haynes's actions, and apologizes for torture.

Wittes in TNR:

Haynes’s long tenure at the Defense Department was a complicated affair. He made mistakes, mistakes I probably would have made too had I been in his shoes. He also behaved very admirably at important junctures.

The memo for which he has been pilloried is also the reason that the military, unlike the CIA, never waterboarded anybody. [Djamel Ameziane might disagree with that assertion.] Haynes recommended approval of certain modestly coercive techniques—the use of which later spun out of control—but he drew the line at several highly-coercive techniques, waterboarding included. Though they might be legal, he wrote, the military was trained in a tradition of restraint and shouldn’t use them. In other words, he behaved exactly the way the Left often criticizes the CIA for not behaving; even in a crisis setting, he refused to let the criminal law define military interrogation policy. Why is that fact not even part of the conversation about him?

And what were the "certain modestly coercive techniques" Haynes approved? In a November 27, 2002 memo from Haynes to then-Secretary of Defense Donald Rumsfeld, Haynes approved all "Category I and II" "counter-resistance techniques" that had been requested by Major General Mike Dunleavy, Commander of Task Force 170, Guantanamo. He also approved one of the "Category III" techniques. But as Wittes notes, he did not approve some others, including a version of waterboarding, and the making of death threats.

The actual techniques, derived from SERE torture training conducted by DoD, were described by Dunleavy's staff intelligence director, Lieutenant Commander Jerald Phifer, in a memo that accompanied Dunleavy's request, and which Haynes approved, in large part.

What techniques did Haynes approve? From the Phifer memo, they included all these "Category II" techniques:

(1) The use of stress positions (like standing), for a maximum of four hours.

(2) The use of falsified documents or reports

(3) Use of the isolation facility for up to 30 days. Request must be made to through the OIC [Officer in Charge], Interrogation Section, to the Director, Joint Interrogation Group (JIG). Extensions beyond the initial 30 days must be approved by the Commanding General. For selected detainees, the OIC, Interrogation Section, will approve all contacts with the detainee, to include medical visits of a non-emergent nature.

(4) Interrogating the detainee in an environment other than the standard interrogation booth.

(5) Deprivation of light and auditory stimuli

(6) The detainee may also have a hood placed over his head during transportation and questioning. The hood should not restrict breathing in any way and the detainee should be under direct observation when hooded.

(7) The use of 20 hour interrogations.

(8) Removal of all comfort items (including religious items).

(9) Switching the detainee from hot rations to MREs.

(10) Removal of clothing.

(11) Forced grooming (shaving of facial hair, etc...)

(12) Using detainees individual phobias (such as fear of dogs) to induce stress.

According to Benjamin Wittes, these techniques are "modestly coercive." I wonder if Wittes himself were to be subjected to these, under conditions of indefinite detention, no less, he might not find himself truly "verklempt," or something far worse.

Famously, Donald Rumsfeld scribbled on the bottom of the Haynes memo, "However I stand for 8-10 hours a day. Why is standing limited to 4 hours?" In Wittes' world, I suppose Haynes is to be congratulated for holding stress positions to only four hours maximum at a time.

But then, I suppose for the Wittes, the intrepid scholar, this post of mine is just another "howl of rage from a new blogger over at Firedoglake." Referencing my notice of Wittes' peculiar sense of time above, I should note I've been writing at Firedoglake since April 2009, a year longer than "Lawfare" has been in business.

One last thing: Mr. Wittes, you cited favorably at your original post on Horton a May 17 blog post by Cully Stimson, former deputy assistant secretary of defense for detainee affairs at the time of the prisoners’ deaths. In Stimson's post, which you extensively quoted, Stimson claimed, "According to published reports, previously classified documents released by Wikileaks show that the suicides were indeed suicides, and were deliberate acts by the detainees." Could you or Mr. Stimson refer us to these "published reports" or "previously classified documents"? In the name of publishing the truth, and furthering your critique of the Horton article, I can't see why you'd ever refuse.

Cross-posted from The Dissenter/FDL

DoJ Cites Koppelman, Wittes Hit Pieces on Scott Horton's "Guantanamo Suicides"

I'm pleased to cross-post my first article at The Dissenter. I'm excited to be posting at this new Firedoglake blog with Kevin Gosztola. I'll be writing on subjects such as the torture scandal, the politics of psychology, civil liberties, and pretty much the kind of topics I have been covering in the past two years at Firedoglake. My previous FDL postings can be accessed at http://my.firedoglake.com/valtin/.

* * * * *

What one writes in a blog article can have an impact in the "real" world, for good -- or for ill. The following is a cautionary tale, or an outrage, take your pick.

In a couple of recent articles at Truthout and Firedoglake, I critically examined what I termed a "hit piece" by Adweek's Alex Koppleman attacking Scott Horton's January 2010 Harper's article, "The Guantanamo Suicides."

Horton's article questioned the official narrative the Department of Defense offered after their investigations into three Guantanamo detainees purportedly discovered hanging in their cells the night of June 9-10, 2006. The Harper's investigation relied, among other things, on eyewitness testimony from Army guards in the guard towers that night, on independent autopsies conducted on two of the bodies, and on new information about a black site at Guantanamo, dubbed "Camp No."

Koppelman's article was posted on May 23. The article claimed that Horton relied on unreliable stories from the Army guards. Koppelman derided Horton, whose article had just won the National Magazine Award, for "conspiracy building, favoring the evidence that supports the conspiracy view and minimizing the evidence that does not." His article, despite its misrepresentation of the facts, and got a lot of play in the press, including a big boost from Benjamin Wittes at Lawfare, who wrote, "The Harpers story is nothing more than a set of wholly unfounded accusations of murder and conspiracy directed against our men and women in uniform dressed up as investigative journalism.”