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~nitco ~tatcs ([ourt of ~ppcaIs 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

Argued March 15, 2011 Decided October 14, 2011 

No. 10-5319 

ADNAN FARHAN ABDUL LATIF, DETAINEE, CAMP DELTA, ET 

AL., 

APPELLEES 

v. 

BARACK OBAMA, PRESIDENT OF THE UNITED STATES, ET AL., 

ApPELLANTS 

Appeal from the United States District Court 

for the District of Columbia 

(No.1 :04-cv-01254) 

August E. Flentje, Attorney, U.S. Department of Justice, 

argued the cause for appellants. With him on the briefs were 

Ian Heath Gershengorn, Deputy Assistant Attorney General, 

and Robert M Loeb, Attorney. 

Philip A. Scarborough argued the cause for appellees. 

On the brief were S. William Livingston, Roger A. Ford, and 

David H Remes. Brian E. Foster entered an appearance. 

Before: HENDERSON, TATEL and BROWN, Circuit Judges. 
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Opinion for the Court filed by Circuit Judge BROWN. 

Concurring opinion filed by Circuit Judge HENDERSON. 

Dissenting opinion filed by Circuit Judge T A TEL. 

BROWN, Circuit Judge: The United States appeals the 

district court's grant of the writ of habeas corpus to detainee 

Adnan Farhan Abd Al Latif. Three errors in the district 

court's analysis require us to vacate that decision. First, the 

court failed to accord an official government record a 

presumption of regUlarity. Second, the district court failed to 

determine Latif s credibility even though the court relied on 

his declaration to discredit the Government's key evidence. 

See AI-Adahi v. Obama, 613 F.3d 1102, 1110 (D.C. Cir. 

2010). Third, the court's unduly atomized approach to the 

evidence is one we have rejected. See id. We remand so the 

district court can evaluate Latif s credibility as needed in light 

of the totality of the evidence, including newly available 

evidence as appropriate. 

I 
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In 

ever being part of the Taliban and offers an innocent 

explanation for his journey. Latif says he left Yemen in 2001 

on a quest for medical treatment for head injuries he suffered 

in a 1994 car accident. He went to Pakistan to get help from 

Ibrahim, a Yemeni he had met at a charitable organization in 

Yemen. When Latif arrived in Quetta, Ibrahim had already 

left Pakistan, so Latif followed him to an Islamic studies 

institute in Kabul, Afghanistan. But once Latif caught up to 

Ibrahim at the institute, Ibrahim had to leave again and told 

Latif to wait for him there until they could travel together to 

Pakistan. After waiting in vain for several weeks, Latif says, 

he then returned to Pakistan without Ibrahim, fleeing U.S.-

supported forces he had been told were advancing from 

northern Afghanistan. 

The district court granted Latif s habeas petition 

following briefmg and a hearing in which Latif declined to 

testify. Abdah Obama 2010 U.S. Dist. LEXIS 

83596 .D.C. 21 201 
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II 

In a Guantanamo detainee case, we review the district 

court's "specific factual determinations" for clear error, and 

its ultimate grant or denial of habeas de novo. Almerfedi v. 

Obama, - F.3d -, 2011 U.S. App. LEXIS 11696, at *11 

(D.C. Cir. June 10, 2011). As in our prior cases, we assume, 

without deciding, that the district court was correct to hold the 

Government to the preponderance-of-the-evidence standard. 

See id. at 11 n.4; Al-Bihani v. Obama, 590 F.3d 866, 878 & 

n.4 (D.C. Cir. 2010); see also Boumediene v. Bush, 553 U.S. 

723, 787 (2008) ("The extent of the showing required of the 

Government in these cases is a matter to be determined."); AlAdahi, 613 F.3d at 1105 ("Although we doubt ... that the 

Suspension Clause requires the use of the preponderance 

standard, we will not decide the question in this case."). To 

meet its burden, "the government must put forth credible facts 

demonstrating that the petitioner meets the detention standard, 

which is then compared to a detainee's facts and 

explanation." Almerfedi, - F.3d -,2011 U.S. App. LEXIS 

11696, at *12-13. 
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Ordinarily, at this point in our analysis, we would simply 

review the district court's comparison of the Government's 

evidence with the "detainee's facts and explanation," bearing 

in mind that the ultimate burden is on the Government to 

establish Latif s detention is legal. Id. We pause here, 

however, because the district court expressly refused to 

accord a presumption of regularity to the Government's 

evidence, and on appeal the Government continues to assert 

its Report is entitled to such a presumption. 

A 

"The presumption of regularity supports the official acts 

of public officers and, in the absence of clear evidence to the 

contrary, courts presume that they have properly discharged 

their official duties." Sussman v. u.s. Marshals Serv., 494 

F.3d 1105, 1117 (D.C. Cir. 2007). The presumption applies to 

government-produced documents no less than to other official 

acts. See Riggs Nat'l Corp. v. Comm'r, 295 FJd 16,21 (D.C. 

Cir. 2002) (holding that "an official tax receipt" of a foreign 

government "is entitled to a presumption of regUlarity"). But 

Latif (and our dissenting colleague) argue no such 

pre can be applied in Guantanamo cases-at least 

not to reports prepared in stressful and chaotic 

conditIons, through interpreters, subject to 

transcription errors, and heavily redacted for national security 

purposes. 
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VVJLVU.J.1.3 Latif cites are typical 

the rule he proposes 

ect to the he-saidlshe-said balancing 

of ordinary evidence. It is impossible to cure the conditions 

under which these documents were created, so Latif s 

proposed rule would render the traditional presumption of 

regularity wholly illusory in this context. We conclude first 

that intelligence documents of the sort at issue here are 

entitled to a presumption of regularity, and second that neither 

internal flaws nor external record evidence rebuts that 

presumption in this case. 

Courts sensibly have anticipated that some sort of 

presumption is proper in the Guantanamo context, but until 

now we have not directly addressed the question. The dissent 

interprets our silence heretofore as disapproval and suggests 

that a presumption in favor of the Government's evidence in 

this case "inappropriately shift[ s] the burden" of proof from 

the Government to the detainee. Dissenting Op. at 30. A 

Supreme Court plurality said just the opposite, however-and 

in a case involving the military detention of an American 

citizen, no less: 

[T]he Constitution would not be offended by a 

presumption in favor of the Government's 

evidence, so long as that presumption 

remained a rebuttable one and fair opportunity 

for rebuttal were provided. Thus, once the 

Government puts forth credible evidence that 

the habeas petitioner meets the enemycombatant criteria, the onus could shift to the 

petitioner to rebut that evidence with more 

persuasive evidence that he falls outside the 

criteria. 

Hamdi v. Rumsfeld, 542 U.S. 507, 534 (2004). 
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When the Supreme Court extended the habeas right to 

non-citizen detainees in 2008, it tasked the lower courts with 

developing a workable habeas remedy that would give 

detainees a "meaningful opportunity to demonstrate" the 

unlawfulness of their detention, Boumediene, 553 U.S. at 779, 

yet it left unaddressed the content of the governing law, id. at 

798. Boumediene noted that "common-law habeas corpus 

was, above all, an adaptable remedy" whose "precise 

application and scope changed depending upon the 

circumstances." Id. at 779. Our dissenting colleague seems to 

think Boumediene mandates a skeptical-if not cynicalsupervisory role for the courts over the Executive branch's 

interactions with its detainees at Guantanamo. Dissenting Op. 

at 7. In our view, the Boumediene Court envisioned a much 

more modest judicial role. Aside from a few minimal 

procedural safeguards, designed to preclude the Government 

acting as its own judge, 1 the Court left the scope of the habeas 

right to the common-law-like process in which we have been 

engaged ever since: "[T]he Suspension Clause does not resist 

innovation in the field of habeas corpus. Certain 

accommodations can be made to reduce the burden habeas 

corpus proceedings will place on the military without 

impermissibly diluting the protections of the writ." 

Boumediene, 553 U.S. at 795. 

1 Specifically, the Supreme Court held that Guantanamo 

detainees must have "the means to supplement the record on 

review," Boumediene, 553 U.S. at 786, and that the court 

conducting habeas proceedings must have authority (1) "to assess 

the sufficiency of the Government's evidence against the detainee," 

id.; (2) "to admit and consider relevant exculpatory evidence," id.; 

(3) "to make a determination in light of the relevant law and facts," 

id. at 787; and (4) "to formulate and issue appropriate orders for 

relief, including, if necessary, an order directing the prisoner's 

release," id. 
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In that spirit, the district court has operated under a case 

management order that specifically authorized reliance on 

evidentiary presumptions. See In re Guantanamo Bay 

Detainee Litig., 2008 U.S. Dist. LEXIS 97095, at *104 

(D.D.C. Nov. 6, 2008) ("The Merits Judge may accord a 

rebuttable presumption of accuracy and authenticity to any 

evidence the government presents as justification for the 

petitioner's detention if the government establishes that the 

presumption is necessary to alleviate an undue burden 

presented by.the particular habeas corpus proceeding."). The 

Government has frequently invoked this order in urging a 

presumption that its evidence is accurate, but the district 

court, with no guidance from us, has been reluctant to grant 

anything more than a presumption of authenticity. See 

BENJAMIN WITTES, ROBERT M. CHESNEY & LARKIN 

REYNOLDS, The Emerging Law of Detention 2.0: 

Guantanamo Habeas Cases as Lawmaking, at 52-53 nn. 237-

43 (May 12, 2011) (citing cases granting a presumption of 

authenticity but not accuracy), 

http://www.brookings.edu/papers/2011/05_guantanamo_witte 

s.aspx (last visited September 30, 2011). Aside from our 

silence, there are at least two other reasons why the district 

court has not applied a presumption of accuracy. 

Confusion about the nature of the presumption may 

account for the district court's reluctance. In an order 

applicable to the present case, the district court held, "any 

evidence presented by the government that has been created 

and maintained in the ordinary course of business should be 

afforded a presumption of authenticity," Dist. Ct. Docket No. 

606, but the court rejected the government's request for a 

presumption of accuracy "for the reasons stated by Judge 

Kessler in Ahmed v. Obama, 613 F. Supp. 2d 51, 54-55 

(D.D.C. 2009) and Judge Kollar-Kotelly in Al Mutairi v. 
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United States, [644 F. Supp. 2d 78 (D.D.C. July 29, 2009)]." 

Id. Those cases misunderstood the nature of the presumption. 

In Ahmed and Al Mutairi, the district court assumed the 

requested presumption would go to the truth of "the facts 

contained in the Government's exhibits." Ahmed, 613 F. 

Supp. 2d at 55. Since "the accuracy of much of the factual 

material contained in the [Government's] exhibits [was] hotly 

contested," id., quoted in Al Mutairi, 644 F. Supp. 2d at 84, 

and the evidentiary dispute in Ahmed involved allegations that 

the relevant statements were "obtained by torture," Ahmed, 

613 F. Supp. 2d at 55, the court was rightly disinclined to 

grant them a presumption of truth. But the presumption of 

regularity does not require a court to accept the truth of a nongovernment source's statement. 

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. There are many conceivable reasons why a 

government document might accurately record a statement 

that is itself incredible. A source may be shown to have lied, 

for example, or he may prove his statement was coerced. The 

presumption of regularity-to the extent it is not rebuttedrequires a court to treat the Government's record as accurate; 

it does not compel a determination that the record establishes 

what it is offered to prove. 

Another reason the district court has denied the 

Government's motions for a presumption of accuracy may be 

that such a presumption is often unnecessary or irrelevant. 
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The Government has frequently been able to prove its 

detention authority without relying on any presumption that 

its records are accurate. And in many cases, detainees do not 

challenge the Government's recordkeeping. Instead, they 

attack the sufficiency of the evidence, or they claim that the 

Government's information is unreliable because it resulted 

from harsh interrogation techniques, multiple levels of 

hearsay, or unknown sources. 

This case presents a different question because Latif s 

sole is to the accuracy of the Government's 

. When the detainee's challenge is 

to process itself, should a presumption 

of regularity apply to the official government document that 

results ? We think the answer is yes. 

To forbid a presumption of regularity in spite of 

Boumediene's implicit invitation to innovate, 553 U.S. at 795, 

would be particularly counterintuitive, since the field of 

habeas corpus is already well accustomed to such burdenshifting presumptions. In a state prisoner's federal habeas 

proceeding, for example, "a determination of a factual issue 

made by a State court shall be presumed to be correct," and 

"the applicant shall have the burden of rebutting the 

presumption of correctness by clear and convincing 

evidence." 28 U.S.C. § 2254(e)(1); see AI-Bihani, 590 F.3d at 

878. And after a state court conviction becomes final, it is 

subject to a "presumption of regularity," such that "[i]f that 

conviction is later used to enhance a [federal] criminal 

sentence, the defendant generally may not challenge the 

enhanced sentence through a petition under § 2254 on the 

ground that the prior conviction was unconstitutionally 

obtained." Lackawanna Cty. Dist. Att Y v. Coss, 532 U.S. 394, 
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403-04 (2001); see also Parke v. Raley, 506 U.S. 20, 30 

(1992) (same for enhancement of a state court sentence).2 

Just as principles of vertical comity and federalism 

justify presumptions in favor of state court judgments in 

ordinary criminal habeas proceedings, see Sumner v. Mata, 

449 U.S. 539, 547 (1981), the horizontal separation of powers 

justifies a presumption in favor of official Executive branch 

records in Guantanamo habeas proceedings. The district court 

is uniquely qualified to determine the credibility of hearsay, 

and the presumption of regularity does not detract from that 

role. But courts have no special expertise in evaluating the 

nature and reliability of the Executive branch's wartime 

records. For that, it is appropriate to defer to Executive branch 

expertise. See Boumediene, 553 U.S. at 796-97 ("In 

2 Even the particular presumption at issue in this case-the 

presumption that an official government record was accurately 

produced-applies in ordinary criminal habeas cases. See Hobbs v. 

Blackburn, 752 F.2d 1079, 1081 (5th Cir. 1985) ("Official records, 

such as this signed [state court guilty plea], are entitled to a 

presumption of regularity and are accorded great evidentiary 

weight" in a federal habeas proceeding.); see also Walker v. 

Maggio, 738 F.2d 714, 717 (5th Cir. 1984) ("minute entry of the 

[state] court" is entitled to a "presumption of regularity"); 

Thompson v. Estelle, 642 F.2d 996, 998 (5th Cir. 1981) ("The 

district court could properly rely on the regularity of the state 

court's documents in preference to Thompson's own self-serving 

testimony."); Webster v. Estelle, 505 F.2d 926, 929-30 (5th Cir. 

1974) (indictment and docket sheet are entitled to presumption of 

regularity). The same presumption applies to official government 

records in a probation revocation proceeding, a circumstance like 

habeas in which liberty is on the line. See United States v. Thomas, 

934 F.2d 840, 846 (7th Cir. 1991) (probation officer's report); 

United States v. Verbeke, 853 F.2d 537, 539 (7th Cir. 1988) 

(treatment center's report); United States v. Callum, 677 F.2d 1024, 

1026 (4th Cir. 1982) (same). 
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considering both the procedural and substantive standards 

used to impose detention to prevent acts of terrorism, proper 

deference must be accorded to the political branches."). Both 

the Constitution and cOmn1on sense support judicial modesty 

when assessing the Executive's authority to detain prisoners 

during wartime, for it is an area in which the jUdiciary has the 

least competence and the smallest constitutional footprint. 

Our dissenting colleague concludes the presumption of 

regularity should not extend to official intelligence reports 

because he imagines the presumption of regularity is just a 

shortcut for crediting the work product of official processes 

we know to be "transparent, accessible, and often familiar," 

Dissenting Op. at 3, and because he thinks we know relatively 

little about how intelligence reports are created, id. at 4-5. 

Both premises are false. Courts regularly apply the 

presumption to government actions and documents that result 

from processes that are anything but "transparent," 

"accessible," and "familiar." The presumption of regularity is 

founded on inter-branch and inter-governmental comity, not 

our own judicial expertise with the relevant government 

conduct. In Riggs National, we presumed a foreign 

government entity's receipt to be reliable without pretending 

it was produced by a "familiar" or "transparent" process. Id. 

at 3; see 295 F.3d at 20-22. Likewise, federal courts need no 

expertise concerning the procedures of state courts, probation 

offices, and drug treatment centers to afford their official 

records a presumPti.on of regularity. See cases cite~ 

note 2. Thanks to the explanatory declarations _ 

_ which we discuss below, see infra at 21-22, we 

~r more about the personnel, process, and standards 

involved in producing intelligence records like the Report 

than we do about the foreign and state governmental organs 

whose records we also presume to be reliable, and we have no 
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reason to suspect such documents are fundamentally 

unreliable.3 

Rather than cast doubt on the viability of the presumption 

of regularity in this context, our only pertinent postBoumediene discussion of the presumption strongly suggests 

its continuing viability. In Al-Bihani, the detainee complained 

that the district court had "erred by .,. presuming the 

accuracy of the government's evidence." 590 F.3d at 875. 

Without isolating the components of AI-Bihani's multifaceted 

procedural argument-it included attacks on the standard of 

review, the denial of a full-blown evidentiary hearing, alleged 

burden-shifting, and the district court's discovery orders-we 

said that his "argument clearly demonstrate [ d] [his own] 

error" and that Boumediene's holding had placed it on "shaky 

ground." Id. at 876. Without explicitly confirming that the 

district court had applied a presumption in favor of the 

Government's evidence in that case, we noted that its case 

management order "reserved the district court's discretion, 

when appropriate, to adopt a rebuttable presumption in favor 

of the accuracy of the government's evidence." Id. at 869-70. 

We implied that the district court had in fact exercised this 

discretion when we quoted the order with approval in our 

hearsay analysis. Id. at 880 ("[T]he Court will determine, as 

to any evidence introduced by the Government, whether a 

presumption of accuracy and/or authenticity should be 

accorded."). Consistent with this order, we noted, the district 

no Its 

... .u~."' ...... E:!'"' .... '"''"' would be used in litigation. Instead, the Government 

was seeking accurate, actionable intelligence to protect the country 

from imminent attack. The Government had the strongest incentive 

to produce accurate reports and no incentive to frame innocent 

bystanders as Taliban operatives. 
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court had judged the "admissions presented by the 

government to be 'credible and consistent. '" Id. Indeed, the 

district court relied on "certain statements by the petitioner 

that the Court finds credible and certain classified documents" 

without entertaining the possibility that the detainee's 

statements had been mis-reported. Al Bihani v. Obama, 594 F. 

Supp. 2d 35, 38-39 (D.D.C. 2009). We did not distinguish the 

presumption of regularity from the admission of hearsay 

evidence generally, but we noted that "had the district court 

imposed stringent standards of evidence in the first instance, 

the government may well have been obligated to go beyond 

AI-Bihani's interrogation records and into the battlefield to 

present a case that met its burden," Al Bihani, 590 F.3d at 

877-78, and we "disposed of' "[t]he rest of AI-Bihani's 

procedural claims ... without extended discussion," id. at 

881. Although AI-Bihani does not clearly hold the district 

court may accord government evidence a presumption of 

regularity, that case is certainly consistent with today's 

holding. 

Although it was decided under the pre-Boumediene 

Detainee Treatment Act of 2005 (DT A), our opinion in 

Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008), also lends 

support to the continuing viability of such a presumption. In 

Parhat, we noted that the DTA incorporated by reference a 

"rebuttable presumption that the Government Evidence is 

genuine and accurate." Id. at 847 (quotation marks omitted) 

(quoting Implementation of Combatant Status Review 

Tribunal Procedures at E-l § G(11) (July 29, 2004)). We 

reversed the Tribunal's decision because the Government's 

evidence, despite the presumption in its favor, could not 

"sustain the determination that Parhat is an enemy 

combatant." 532 F.3d at 847. The intelligence consisted of 

anonymous hearsay in the form of unsupported "bottom-line 

assertions," so it was impossible for us to "assess the 
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reliability of the assertions in the documents." Id. We 

explained that "[i]f a Tribunal cannot assess the reliability of 

the government's evidence, then the 'rebuttable' presumption 

becomes effectively irrebuttable." Id. Although we found the 

presumption rebutted in Parhat, we cast no doubt on the 

propriety of such a presumption in the Guantanamo context. 

Parhat still "sets the guideposts for our inquiry into the 

reliability of the [Government's] evidence in a detainee's 

habeas case." Bensayah v. Obama, 610 F.3d 718, 725 (D.C. 

Cir. 2010) (quoting Barhoumi v. Obama, 609 F.3d 416, 428 

(D.C. Cir. 2010)). And neither the Supreme Court nor our 

court has ever rejected the presumption we analyzed in that 

case. 

Our dissenting colleague points to four more recent cases 

to defend his view that intelligence documents like the Report 

in this case are undeserving of a presumption of regularity. 

Dissenting Op. at 10-12 (citing Barhoumi, 609 F.3d 416, 

Bensayah, 610 F.3d 718, Al Alwi v. Obama, - F.3d -, No. 

09-5125, 2011 U.S. App. LEXIS 14991 (D.C. Cir. July 22, 

2011), and Khan v. Obama, - F.3d -, No. 10-5306, 2011 

U.S. App. LEXIS 18471 (D.C. Cir. Sept. 6, 2011)). But we 

had no occasion to apply such a presumption in any of these 

cases, and none of them limits our discretion to do so under 

Boumediene. 

In Barhoumi, we considered a Government intelligence 

report containing a translation of a diary. Although we 

affirmed the district court's favorable treatment of the 

Government's evidence, 609 F.3d at 428-31, we did not 

apply a presumption of regularity. The reason for that 

omission is simple. The district court had credited the 

Government's evidence without applying a presumption of 

regularity, and we were reviewing for clear error. See Brief of 

Respondents-Appellees at 52, Barhoumi, 609 F.3d 416 (No. 
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09-5383), ECF No. 1236093 (observing that "the district 

court did not presume the accuracy or authenticity of the 

government's evidence"). True, the Government's brief 

interpreted the criminal cases on which Barhourni relied as 

"acknowledg[ing] that, absent 'unusual circumstances,' a 

translation is assumed to be accurate" in "criminal 

proceedings governed by the Confrontation Clause and the 

Federal Rules of Evidence." Id. at 45-46 (quoting United 

States v. Martinez Gaytan, 213 F.3d 890, 892 (5th Cir. 2000) 

and United States v. Vidacek, 553 F.3d 344, 352 (4th Cir. 

2009)). But the Government did not ask us to apply any such 

presumption to its evidence. Indeed, the Government noted 

those criminal cases were "clearly distinguishable." Id. at 45. 

We agreed. The cases Barhoumi relied on related to the 

question of admissibility, which we observed was irrelevant 

in the Guantanamo habeas context since all hearsay is 

admissible. We rejected the detainee's contention that 

deficiencies in the translation rendered it unreliable. See 

Barhoumi, 609 F.3d at 431. We certainly did not deny the 

possibility that a presumption of accuracy might apply in the 

habeas context-we simply were not confronted with that 

question. Our opinion in Barhoumi therefore cannot bind us 

to the dissent's view that the constitutional right to habeas 

precludes any presumption in favor of an official intelligence 

report. "Constitutional rights are not defined by inferences 

from opinions which did not address the question at issue." 

Texas v. Cobb, 532 U.S. 162, 169 (2001); see also Lopez v. 

Monterey Cty, 525 U.S. 266, 281 (1999) ("[T]his court is not 

bound by its prior assumptions."); cf Ariz. Christian Sch. 

Tuition Org. v. Winn, 131 S. Ct. 1436, 1448-49 (2011) 

("When a potential jurisdictional defect is neither noted nor 

discussed in a federal decision, the decision does not stand for 

the proposition that no defect existed. The Court would risk 

error if it relied on assumptions that have gone unstated and 

unexamined." (citations omitted)); Brecht v. Abrahamson, 
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507 U.S. 619, 631 (1993) ("[S]ince we have never squarely 

addressed the issue, and have at most assumed the 

applicability of the Chapman [' harmless beyond a reasonable 

doubt'] standard on habeas, we are free to address the issue 

on the merits. "). 

For the same reason, we cannot extract from Bensayah, 

Al Alwi, or Khan the dissent's proposed bar on evidentiary 

presumptions for intelligence reports. As in Barhoumi, the 

Government did not request a presumption of regularity in 

any of these appeals. See Brief of Respondents-Appellees at 

38-39, Bensayah, 610 F.3d 718 (No. 08-5537); Brief of 

Respondents-Appellees at 34--38, Al Alwi, - F.3d - (No. 

09-5125); Brief of Respondents-Appellees at 45-58, Khan, -

F.3d - (No. 10-5306). Thus, the court appropriately 

refrained from addressing the viability of such a presumption 

in each of those cases. See Rumber v. District of Columbia, 

595 F.3d 1298, 1302 (D.C. Cir. 2010) ("[W]e follow our 

usual practice of declining to reverse the district court based 

on arguments that the appellant did not raise."); United States 

v. Vizcaino, 202 F.3d 345, 348 (D.C. Cir. 2000) ("Because 

[the defendant] failed to preserve the argument for appeal, we 

review ... at most for plain error." (emphasis added)). Absent 

relevant arguments, none of these cases can be read to 

foreclose a presumption of regUlarity for government 

documents in general or intelligence reports in particular. 

Apart from its precedential argument, the dissent frets 

that "in practice" the presumption of regularity will compel 

courts to rubber-stamp government detentions because it 

"suggest[ s] that whatever the government says must be 

treated as true." Dissenting Op. at 19 (quoting Parhat, 532 

F.3d at 849). That fear is unfounded. Again, the presumption 

of regularity, if not rebutted, only permits a court to conclude 

that the statements in a government record were actually 
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made; it says nothing about whether those statements are true. 

And while the presumption applies to government records, it 

does not apply only to the government's evidence. If a 

detainee introduces a govemlnent record to support his side of 

the story-as has been done in the past, see, e.g., Awad, No. 

09-5351, slip op. at 8 ("In support of his petition, Awad 

introduced into evidence ... additional statements he made to 

his interrogators")-he can benefit from the presumption as 

well. Finally, the presumption likely will never playa larger 

role in the resolution of a case than it does here (because the 

reliability of the Report is the central dispute), and even here, 

the presumption is not dispositive. 

A body of judge-made law is not born fully formed, like 

Athena from the head of Zeus. It grows gradually, developing 

little by little in response to the facts and circumstances of 

each new case. Until now, we have not had to decide whether 

the common-law presumption of regularity applies in 

Guantanamo habeas proceedings. This case finally forces the 

issue because Latif challenges only the reliability of the 

Report, and because the Government persists in its request for 

a presumption of regularity on appeal.4 We hold that in 

4 The Government's argument for a presumption of regularity 

is unambiguous. Observing that "[i]t is well established that there is 

a strong 'presumption of regularity' for actions of government 

officials taken in the course of their official duties," Appellants' Br. 

30 (quoting United States v. Chemical Found., Inc., 272 U.S. 1, 14-

15 the Government that the expert descriptions I 

"should have been 

CotlSIdlere:d III presumption that government 

officials are properly carrying out their duties." Id. Developing this 

argument by analogy, the Government that "the factors 

supporting [the] accuracy" of 

"even stronger than in the immIgratIOn CODltext" 

agent "cannot be presumed to be ... other an accurate 

recorder" of the alien's statement. Id. at 30-31 (quoting Espinoza v. 
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Guantanamo habeas proceedings a rebuttable presumption of 

regularity applies to official government records, including 

intelligence reports like the one at issue here. 

B 

Because the Report is entitled to a presumption of 

regularity, and because the Report, if reliable, proves the 

lawfulness of Latif s detention, we can only uphold the 

district court's grant of habeas if Latif has rebutted the 

Government's evidence with more " evidence of his 

own.5 Viewed together, both 

~ 

_ and the other 

to meet this burden. 

INS, 45 F.3d 308, 311 (9th Cir. 1995)). The dissent's claim that our 

holding goes "well beyond what the government actually argues in 

its briefs" is unfounded. Dissenting Op. at 9. 

5 We need not decide precisely how much more the detainee 

must show to overcome the presumption of regularity. Depending 

on the circumstances, courts have required litigants to meet 

standards ranging from "clear and specific evidence," Riggs Nat 'I, 

295 F.3d at 21 (tax), to "clear and convincing evidence," Riggins v. 

Norris, 238 F.3d 954, 955 (8th Cir. 2001) (habeas); see also United 

States v. Armstrong, 517 U.S. 456, 464 (1996) ("clear evidence") 

(selective prosecution); Dep't of Labor v. Triplett, 494 U.S. 715, 

723 (1990) ("[A ]necdotal evidence will not overcome the 

presumption of regularity") (effective assistance of counsel); cf 

Sussman, 494 F.3d at 1117 (noting a "less stringent standard" 

applies in at least some FOIA cases (quoting Nat'l Archives & 

Records Admin. v. Favish, 541 U.S. 157, 174 (2004))). Even if we 

assume a detainee may overcome the presumption by a mere 

preponderance of the evidence, Latif cannot meet that standard. 
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1 

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we 

hn'iliTP"'i3r, an report involves just one level 

hearsay-that of the interrogator. 590 F.3d at 879. Like the diary 

translated in Barhoumi and unlike the anonymous hearsay in 

Parhat, are "the underlying 

reporting on s assertions are founded. " 

II!NM Barhoumi 609 F.3d at 428. The act of translation "does not affect 

status." Al-Bihani, 590 F.3d at 879; see 

Bar oumi, 609 .3 at 430-31. And, as Parhat and Al-Bihani 

demonstrate, courts are capable of determining whether official 

government records that contain hearsay merit the presumption of 

regularity. 
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SECRET 26 SECRET 
SECRET 27 SECRET 

2 
SECRET 28 SECRET 
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III 

The district court issued its decision in this case a week 

after we published our opinion in AI-Adahi v. Obama, 613 

F.3d 1102 (D.C. Cir. 2010). We observed that "[o]ne of the 

oddest things" about that case was that "despite an extensive 

record and numerous factual disputes, the district court never 

made any findings about whether AI-Adahi was generally a 

credible witness or whether his particular explanations for his 

actions were worthy of belief." Id. at 1110. The district 

court's analysis in this case suffers from the same omission. 

Because the court relied in part on Latif s declaration in 

discrediting the Report, see Latif, 2010 U.S. Dist. LEXIS 

83596, slip op. at 26 ("[T]he Court cannot credit [the Report] 

because ... Latif has presented a plausible alternative 

story."), the district court was obligated to consider his 

credibility. Only a credible story could overcome the 

presumption of regularity to which the Report was entitled. 

The court's failure to make a credibility finding is especially 

puzzling where the inCUlpatory and eXCUlpatory versions of 

the detainee's story ov so that the factfinder is forced to 

I.UU ..... .l.lJ5.le the detainee's story _ 

do~ to'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 
SECRET 32 SECRET 

plausibility. See Latif, 2010 U.S. Dist. LEXIS 83596, slip op. 

at 26. 

La~if makes two main arguments in defense of the district 

court's decision to proceed without an explicit finding of 

credibility. First, he argues that the court did in fact believe 

his declaration even though its opinion did not use those 

words. Second, he argues no credibility determination is 

necessary because the district court relied on the inherent 

weakness of the Government's evidence to discredit it. 

Neither argument has merit. 

A 

The closest the district court's opinion comes to making a 

credibility determination is in its statements that Latif's story 

was "plausible" and "not incredible." Id., slip op. at 26-27. A 

story may be "plausible" or "not incredible" and yet be very 

unlikely. Cf Uthman v. Obama, 637 F.3d 400,406 (D.C. Cir. 

2011) ("Uthman's account ... involves many coincidences 

that are perhaps possible, but not likely."). A judgment about 

credibility, by contrast, measures the truthfulness of the 

speaker or the likelihood. that what he says is true. See 

RICHARD HOOKER, THE LAWS OF ECCLESIASTICAL POLITY bk. 

II, ch. 4, at 151-52 (George Edelen ed., Harvard Univ. Press 

1977) (1594) ("[T]hings are made credible, eyther by the 

knowne condition and qualitie of the utterer, or by the 

manifest likelihood of truth which they have in themselves."). 

Thus, neither of the district court's statements is equivalent to 

a finding that Latif's declaration is more likely true than false. 

On this, we are all agreed. See Dissenting Op. at 30. 

By definition, a "plausible" statement is one "seeming 

reasonable, probable, or truthful"; it may in reality have only 

"a false appearance of reason or veracity." OXFORD ENGLISH 
SECRET 33 SECRET 

DICTIONARY ONLINE, http://www.oed.comJview/Entry/ 

145466 (definition 4.a) (emphasis added) (last visited June 

16, 2011). A plausible explanation does not necessarily 

compel credence. See Zamanov v. Holder, No. 08-72340, -

F.3d -, 2011 U.S. App. LEXIS 8886, at *12 (9th Cir. Apr. 

29, 2011) ("[Petitioner's] explanation ... is plausible. 

However, the record does not compel the finding that the 

[Immigration Judge's] unwillingness to believe this 

explanation ... was erroneous."). It is when a detainee tells a 

plausible story that an evaluation of his credibility is most 

needed. There may be several plausible explanations for 

Latifs itinerary; it is the district court's job to decide whether 

the Government's explanation is more likely than not. See AlAdahi, 613 F .3d at 1110 ("Valid empirical proof requires not 

merely the establishment of possibility, but an estimate of 

probability." ( quoting DAVID HACKETT FISCHER, HISTORIANS' 

FALLACIES: TOWARD A LOGIC OF HISTORICAL THOUGHT 53 

(1970))). 

Likewise, to say Latif s tale is "not incredible" is not to 

imply its teller ought to be believed. At best, the district 

court's statement means a reasonable finder of fact could 

believe Latifs story, not that he has actually done so. Cf 

United States v. Wooden, 420 F.2d 251, 253 (D.C. Cir. 1969) 

("The appellant's story was not incredible; indeed, the jury 

seems to have accepted it, at least in part .... "). Different 

factfinders may come to different conclusions about whether 

to credit evidence that is "not incredible" as a matter of law. 

Other statements in the district court's opinion confirm 

that it did not reach a decision on Latifs credibility. For 

example, the court rejected the Government's "contention that 

Latif must be lying," Latif, 2010 U.S. Dist. LEXIS 83596, slip 

op. at 27 (emphasis added), while assiduously avoiding any 

determination that Latif was not lying. The court speculated 
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more than once that the inconsistencies in his statements 

"may be the result of a misstatement or a mistranslation," 

without ever making a finding to that effect. Id., slip op. at 27 

(emphasis added); id. ("The smaller inconsistencies ... may 

be no more than misstatements or mistranslations." (emphasis 

added)). Likewise, the court found that "Latif did have an 

injury ... for which he might therefore have sought 

treatment." Id., slip op. at 28 (emphasis added); see also id., 

slip op. at 6 n.4 (citing Latif s "alternative explanation for not 

having his passport at the time he was seized," without 

deciding whether that explanation is more likely than the 

Government's incriminating explanation). The district court 

provided no indication that it actually believed Latif s story 

and instead noted the story's "inconsistencies and unanswered 

questions." Id., slip op. at 27. 

B 

The district court's decision gives us no reason to believe 

it would have reached the same result had it not relied on 

Latifs "plausible" version of the relevant events. The court 

said it could not "credit" 

partly "because ... Latif 

story to explain his travel." Id., slip op. at 26. Instead of 

advancing from plausibility to a judgment about Latif s 

the court ted its 

re on 

basis for rejecting_ 
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story "plausible," not credible, the court merely established 

the possibility, not the probability, that Latifs story was true. 

And without a "comparative judgment about the evidence," 

there is no finding of fact for this court to review. AI-Adahi, 

613 F.3d at 1110. 

By forgoing a determination of credibility for one of 

plausibility, the district court replaced the necessary factual 

finding with a legal conclusion that some other reasonable 

factfinder might believe Latif s story. In other words, the 

district court took on the role of a reviewing court, assuming 

in effect that Latif already had been found credible and then 

applying a deferential standard of review to that imaginary 

finding. Cf A wad, 608 F.3d at 7 ("[I]f the district court's 

account of the evidence is plausible in light of the record 

viewed in its entirety, the court of appeals may not reverse 

it."). We cannot allow the district court to bypass its 

factfinding role in favor of an appellate standard of review. 

Cf Anderson v. United States, 632 F.3d 1264, 1269-70 (D.C. 

Cir. 2011) (noting that the district court may not apply the 

appellate court's standard of review in crafting its own 

sentence). And since "de novo factfinding is inconsistent with 

[an appellate court's] proper role," United States v. 

Brockenborrugh, 575 F.3d 726, 746 (D.C. Cir. 2009), we are 

at an impasse. 
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In sum, the district court's failure to resolve 

the key question of [the lead witness's] 

credibility makes it impossible for us to 

perform our appellate function. "The purpose 

of an appeal is to review the judgment of the 

district court, a function we cannot properly 

perform when we are left to guess at what it is 

we are reviewing. " We therefore vacate the 

district court's order and remand for further 

proceedings consistent with this opinion. 

United States v. Holmes, 387 F.3d 903, 907-08 (D.C. Cir. 

2004) (quoting United States v. Williams, 951 F.2d 1287, 

1290 (D.C. Cir. 1991)). 

C 

On remand, the district court may consider any relevant, 

admissible evidence to aid its evaluation of Latirs credibility. 

If Latif again declines an opportunity to testify, that is another 

fact bearing on his credibility. Although the district court's 

factual findings may be supported by documentary evidence 

no less than by oral testimony, see Barhoumi, 609 F.3d at 

423-24, a civil party's decision not to testify may support an 

adverse inference about his credibility, see Mitchell v. United 

States, 526 U.S. 314, 328 (1999) ("The Fifth Amendment 

does not forbid adverse inferences against parties to civil 

actions when they refuse to testify in response to probative 

evidence against them."). Latif argues "it would make no 

sense to require an adverse inference in habeas cases in which 

the petitioner declines to testify while prohibiting such 

inferences in criminal cases." Appellee's Br. 52. This neglects 

the crucial point that the rule for criminal cases is based on 

the Fifth Amendment privilege against self-incrimination. See 

Mitchell, 526 U.S. at 316. That privilege has no application 

outside the criminal context, and a Guantanamo habeas 
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petitioner is not entitled to the same constitutional safeguards 

as a criminal defendant. Cf A l-Bihani, 590 F .3d at 879 

("[T]he Confrontation Clause applies only in criminal 

prosecutions and is not directly relevant to the habeas 

setting."). Especially where a detainee's own self-serving 

statements comprise the only evidence against the 

Government's case, his refusal to testify is relevant to the 

district court's credibility determination. 12 

IV 

"[A] court considering a Guantanamo detainee's habeas 

petition must view the evidence collectively rather than in 

isolation." Salahi v. Obama, 625 F.3d 745, 753 (D.C. Cir. 

2010). A habeas court's failure to do so is a legal error that 

we review de novo, separate and apart from the question of 

whether the resulting findings of fact are clearly erroneous in 

themselves. See Al-Adahi, 613 F.3d at 1111 ("[T]he district 

court clearly erred in its treatment of the evidence and in its 

view of the law. The court's conclusion was simply not a 

permissible view of the evidence. And it reached this 

conclusion through a series of legal errors."). Under Al-Adahi, 

a detainee is not entitled to habeas just because no single 

piece of evidence is sufficient by itself to justify his detention. 

613 F.3d at 1105-06. It follows that a habeas court may not 

ignore relevant evidence, for a court cannot view collectively 

evidence that it has not even considered. 

12 On appeal, Latif retorts that the Government did not put on 

witnesses either. 's Br. 51. This misses the . 

contrast, every to 

purpose of his visit. His failure to testify and subject 

himself to cross examination therefore undermines his credibility. 
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Perhaps because it had already denied the Government's 

key evidence a presumption of regularity, the district court 

committed both errors, explaining away some of the 

individual contradictions and coincidences in Latif's story 

one by one, as if each stood alone, and ignoring other 

probative details altogether. In AI-Adahi, we reversed the 

district court's grant of habeas because the court had failed to 

consider all the evidence in context. Viewing the evidence as 

a whole, we concluded the Government had proven the 

detainee "was more likely than not part of al-Qaida." Id. at 

1111. Although we do not reach an ultimate conclusion on the 

merits in this case, the district court's similar treatment of the 

evidence in this case provides an alternative basis for remand. 

The district court's unduly atomized approach is 

illustrated by its isolated treatment (or failure to consider) 

several potentially incriminating inferences that arise from 

evidence Latif himself offers in support of his petitionnamely, ~ similarities between Latif's exculpatory 

story and _ (b) the route Latif admits traveling, and 

(c) contradICtIons in Latif's exculpatory statements. In 

",,,.n"T,·r , ... the district court . declined to consider 

1".."T •• r·1 court 

of weighing this evidence in 

A 

story so hard to swallow is 

t its nA~ ... aC''''''A,...,rI,a...,,'a 
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B 

Nor did the district consider that Latif's 

e to a 

distinctive path used by al Qaeda members can be probative 

evidence that the traveler was part of al Qaeda." Uthman, 637 

F.3d at 405 (citing Al Odah, 611 F.3dat 16). At Guantanamo, 

more than a year after his capture, Latif told his interrogators 

he flew from Sana' a, Yemen to Karachi, Pakistan in early 

2001 with a plane ticket Ibrahim gave him. From there he 

took a bus to Quetta, Pakistan and a taxi to Kandahar, 

Afghanistan as Ibrahim had instructed. Then Ibrahim took 

him by taxi to Kabul, where Latif said he spent five months in 

the religious study center. 14 This route has been well traveled 

by al-Qaida and Taliban recruits and by our precedent. See 

Uthman, 637 F.3d at 405 (noting that Uthman's route from 

Sana' a to Karachi by plane, from Karachi to Quetta by bus, 

14 Although Latifs more recent declaration in the district court 

leaves out some of these details, he does not deny taking this route. 

Indeed, Latif cites the consistency of his Guantanamo 

interrogations as evidence that his current story is true. Appellee's 

Br. 18-22. Latifs recent declaration confirms he took a bus to 

Quetta and a taxi from Quetta to Afghanistan, and then stayed in 

Kabul before returning to Pakistan. 
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from Quetta to a Taliban office by taxi, and from there to 

Kandahar "is similar to the paths of admitted al Qaeda 

members"); Al Odah, 611 F.3d at 10, 12 (noting that a similar 

"route used by al Odah was a common travel route for those 

going to Afghanistan to join the Taliban"). The record in this 

case is replete with interrogation summaries of other Yemeni 

detainees who followed the same route to Afghanistan. 

Instead of focusing on Latif s route, the district court 

observed that "[n]o other detainee told interrogators that he 

fled from Afghanistan to Pakistan, from Tora Bora or any 

other location, with Latif." Latif, 2010 U.S. Dist. LEXIS 

83596, slip op. at 26. That is true. But the court overlooked 

the implications of Latif s own subsequent admissions about 

the route he traveled. IS This is relevant evidence, and it 

should have factored into the district court's decision. The 

court's failure even to consider it is a legal error that compels 

remand. 

c 

IS a 

evidence we called for in AI-Adahi. But as 

with the other evidence, the district court examined some 

15 The district court did not, as the dissent suggests, "treat[] 

[this] evidence as more akin to traveling along 1-95 than a lonely 

country road." Dissenting Gp. at 35. The court did not consider it at 

all. 
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contradictions in isolation from the rest of the evidence and 

overlooked others altogether. 

The court gestured obliquely to what it characterized as 

"smaller inconsistencies" that it concluded "may be no more 

than misstatements or mistranslations." Id. Apparently, the 

court found it unnecessary to get to the bottom of these 

contradictions because "even if some details of Latif's story 

have changed over time, for whatever its 

fundamentals have remained the same." Id. 

statements, 

court's reasoning neglects "the well-settled principle that 

false exculpatory statements are evidence-often strong 

evidence-of guilt." AI-Adahi, 613 F.3d at 1107. Thus, even 

if a given inconsistency in a detainee's story does not go to 

the central question of his involvement with the Taliban or alQaida, it may be relevant nonetheless to the court's evaluation 

of his credibility, which in turn bears .on the reliability of the 

Government's evidence. Cf United States v. Philatelic 

Leasing, Ltd., 601 F. Supp. 1554, 1565 (S.D.N.Y. 1985) 

(citing the principle, "which Wigmore has described as 'one 

of the simplest in human experience,'" that "when a litigating 

party resorts to 'falsehoods or other fraud' in trying to 

establish a position, the court may conclude the position to be 

without merit and that the relevant facts are contrary to those 

asserted by the party") (quoting 2 John Henry Wigmore, 

Evidence § 278, at 133 (1979)). 

court 

o In on (in 

which he claimed to be too disabled to fight) Latif said he 
SECRET 44 SECRET 

"spent three months at the Islamic Jordanian Hospital in 

Amman, Jordan," Petitioner's Decl., ~ 3, but his own medical 

records reveal that he was released just five days after 

admission. The court· made no explicit finding about the 

source of this inconsistency, and it failed to mention that Latif 

himself testified before the Combatant Status Review 

Tribunal that he was "treated . . . for five days," ISN 156 

CSRT Tr. at 8, a fact that is surely relevant to the credibility 

of Latif s recent declaration. 

The court failed even to mention other incongruities 

among the stories Latif has told his interrogators. Latif has 

said that he stayed with a doctor in Kabul, but also that he 

stayed in a religious study center there; that Latif was arrested 

at the Pakistani border fleeing Afghanistan, but also that he 

was arrested at a hospital in Pakistan; that he paid for his 

medical treatment, but also that he could not pay; that 

Ibrahim's charitable organization is called Jamiat an-Nur, but 

also that it is called Gameiat al Hekma or, alternatively, Jam-
SECRET 45 SECRET 

eiah Islam. Even if some of the inconsistencies in Latif's 

story "may be," as the district court suggested about others, 

"no more than misstatements or mistranslations," Latif, 2010 

U.S. Dist. LEXIS 83596, slip op. at 27, viewed together with 

the rest of the evidence they undermine the credibility of 

Latif's declaration. "We do not say that any of these 

particular pieces of evidence are conclusive, but we do say 

that they add to the weight of the government's case against 

[the detainee] and that the district court clearly erred in 

tossing them aside." AI-Adahi, 613 F.3d at 1110. 

D 
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16 We do not ''find[J'' that this evidence "do[ es] in fact 

implicate" Latif, as the dissent accuses us of doing. Dissenting Op. 

at 2. Rather, we hold the district court's findings suspect in that the 

court "failed to take into account" related evidence when it made 

those findings. AI-Adahi, 613 F.3d at 1108. 
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E 

In a recent case, we held "the location and date of [the 

detainee's] capture, together with the company he was 

keeping, strongly suggest that he was part of al Qaeda." 

Uthman, 637 F.3d at 405. The Yemeni detainee in that case 

was captured in December 2001 with at least five other 

Yemeni men, two of whom were confessed al-Qaida 

members, at the Afghan-Pakistani border near Tora Bora, a 

cave complex in Eastern Afghanistan that was, at that time, 

the site of a battle between al-Qaida and the United States. Id. 

Analogous details in the circumstances of Latif s capture 

should have been weighed in combination with the rest of the 

Government's incriminating evidence. 

Latif admits that he was captured in "late 2001" after 

- being led across the Afghan border into Pakistan, Appellee's 

Br. 7, and he confmned to his Guantanamo interrogators that 

an Afghan guide led him across the border. The record 

contains no direct evidence about Latif s route from Kabul to 

the Pakistani border. 

,,""'U'~.I."""'~ court con\.l.lU~..J.\.IU 

tImIng from Kabul is not sufficient to 

create an inference that he was involved in fighting." Id., slip 

op. at 27 (emphasis added). This is exactly the formulation we 

criticized in AI-Adahi. In that case the district court concluded 

"AI-Adahi's attendance at an al-Qaida training camp 'is not 

sufficient to carry the Government's burden of showing that 

he was a part' of al-Qaida." 613 F.3d at 1105 (emphasis 

added). We cited that statement as an example of the court's 
SECRET 48 SECRET 

having "wrongly 'required each piece of the government's 

evidence to bear weight without regard to all (or indeed any) 

other evidence in the case." Id. at 1105-06. The district court 

commits exactly the same "fundamental mistake" in this case 

by considering the time and place of Latifs capture in 

isolation from the rest of the evidence. Id. at 1106. The 

question to ask is not whether the circumstances of Latif s 

capture are sufficient by themselves to prove he was part of 

the Taliban, but whether, in combination with the rest of the 

evidence, they make that conclusion more likely than not. 
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The dissent admits the circumstances of Latif's flight 

from Afghanistan are helpful to the Government's case, but 

contends they may not be very helpful since, for all we know, 

his route was frequented by non-combatants too. Dissenting 

Op. at 33-35. This bold speculation is beyond our purview as 

an appellate court, and the district court did not suggest it had 

so much as considered the possibility. (Indeed, the record 

contains no evidence to support the dissent's theory.) At this 

juncture, all we can say is that the location and timing of 

Latif's exodus is relevant evidence, and the district court 

erred by considering his route in isolation and ignoring the 

similarly situated detainees' altogether. 

F 

To summarize, in addition to viewing Latif's own 

statements in isolation, the district court ignored the probative 

value of (1) Latif's familiar, four-leg route to Kabul; 

(2) Latif's CSRT testimony that he was hospitalized for just 

five instead of three months as he now claims' 

a court's 

opinion that any of these facts infonned its conclusion about 

the Government's evidence. In light of our application of the 

presumption of regularity, there can be no question on remand 
SECRET 50 SECRET 

but that all of this evidence must be considered-and 

considered as a whole. 

The dissent makes much of the fact that, contrary to the 

usual practice, we do not assume the court considered all the 

evidence it failed to mention. Dissenting Op. at 43-44. If that 

is true, the result flows from the unusual posture of this case. 

Even in the typical he-saidlshe-said case-in which two people 

provide conflicting statements-the court must conduct a close 

and precise balancing of the evidence to reach a valid result. 

In detainee cases the difficulties are heightened because it is a 

he-saidlhe-said case-the same person provides both the 

incriminating and exculpatory statements. Thus the Al Adahi 

formulation becomes critical. 

The district court's failure to address certain relevant 

evidence leaves us with no confidence in its conclusions 

about the evidence it did consider. For example, the district 

court implicitly rejected evidence that Latifs purported 

benefactor, Ibrahim AI-Alawi, is actually Ibrahim Ba'alawi, 

known as Abu Khalud, an al-Qaida facilitator. Other 

detainees have described Ibrahim Ba'alawi in much the same 

Ba' alawi arranged their travel along the same route Latif took 

to Afghanistan, lived in Kandahar as Latif s benefactor did, 

and arranged for their attendance at military training camps. 

Although noting the similarities between Ibrahim Ba' alawi 

and the Ibrahim AI-Alawi who appears in Latif's current 

story _ the district court implicitly concluded 

they ~ men on the basis of exculpatory 

statements Latif made _ Latif makes 

much of the fact tha~t name from 
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Ba'alawi, not just a variant spelling, and at least seven 

detainees reported their recruiter's name as Ba'alawi or some 

variant thereof. But such a minor phonetic mistake could 

easily result from a translation or transcription error. 18 It does 

not negate altogether the probative value of this link between 

Latif s current and a known recruiter 

was a person 

without ever finding that to be so. 

Even if the district court had made a clear finding in 

Latifs favor about Ibrahim's identity, we could not affirm it 

on this record. Since the probability of one asserted fact is 

conditioned upon the likelihood that related facts are true, we 

cannot uphold the district court's evaluation of a particular 

piece of evidence that is susceptible to more than one 

interpretation when the court has ignored related evidence. 

On remand, the district court has an opportunity to 

evaluate all the evidence as a whole. In the event of another 

appeal following that evaluation, we would have to decide 

whether, in light of all the evidence, we are left with "the 

definite and firm conviction that a mistake has been 

committed." Almerfedi, - F.3d -, 2011 U.S. App. LEXIS 

18 Indeed, as the district court acknowledged, the recruiter is 

identified as Alawi in another detainee's interrogation report. The 

district court dismissed this evidence, observing that in another 

case, the district court had discredited this detainee's statement 

about an unrelated detail-the timing of another detainee's arrival 

at a guesthouse-because it conflicted with other detainees' 

statements. Latif, 2010 U.S. Dist. LEXIS 83596, at *26 n.10, slip 

op. at 19 n.10 (citing Abdah v. Obama, 717 F. Supp. 2d 21, 35 

(D.D.C.2010)). 
SECRET 52 SECRET 

11696, at *23. In its current posture, this case does not require 

us to answer that difficult question. 19 

v 

Although the district court committed the same errors 

here as in AI-Adahi, the evidence before us presents a closer 

question than we faced in that case and our subsequent 

reversals. Cf Almerfedi, - F.3d -, 2011 U.S. App. LEXIS 

11696; Uthman, 637 F.3d at 400. And the Government s it 

has discovered new evidence 

_ that neither the rllC'TM'"'T 

occaSlOn to consider. 

As the dissenters warned and as the amount of ink spilled 

in this single case attests, Boumediene's airy suppositions 

have caused great difficulty for the Executive and the courts. 

See 553 U.S. at 824-26 (Roberts, C.l, dissenting); id. at 827-

28 (Scalia, J., dissenting). Luckily, this is a shrinking category 

of cases. The ranks of Guantanamo detainees will not be 

replenished. Boumediene fundamentally altered the calculus 

of war, guaranteeing that the benefit of intelligence that might 

be gained-even from high-value detainees-is outweighed by 

the systemic cost of defending detention decisions. Id. at 828 

(Scalia, l, dissenting). While the court in Boumediene 

19 Judge Henderson would reverse the district court's grant of 

habeas corpus outright. In her view, "remand is unnecessary 

because 'the record permits only one resolution of the factual 

issue.'" Concurring Op. at 12 (quoting Pullman-Standard v. United 

Steel Workers of Am., AFL-CIO, 456 U.S. 273, 292 (1982)). 

Because of the legal errors we have both identified, I find it 

unnecessary to decide that question. Remand is warranted not only 

when "further fact-finding by the district court is necessary," but 

also when it "would be helpful." Al Alwi, 2011 U.S. App. LEXIS 

14991, at *9. This is such a case. 
SECRET 53 SECRET 

expressed sensitivity to such concerns, it did not find them 

"dispositive." Id. at 769. Boumediene's logic is compelling: 

take no prisoners. Point taken. 

In light of the district court's expertise as a fact finder 

and judge of credibility, I am reluctant to reach the merits 

before the district court has had an opportunity to apply the 

controlling precedent. But see Concurring Op. at 12 

("[F]urther factfinding will be a waste of time and judicial 

resources."). We therefore vacate and remand the district 

court's grant of habeas for further proceedings. On remand 

the district court must consider the evidence as a whole, 

bearing in mind that even details insufficiently probative by 

themselves may tip the balance of probability, that false 

exculpatory statements may be evidence of guilt, and that in 

the absence of other clear evidence a detainee's self-serving 

account must be credible-not just plausible-to overcome 

presumptively reliable government evidence. 

So ordered. 
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KAREN LECRAFT HENDERSON, Circuit Judge, concurring in the 

judgment: 

Although I agree with Judge Brown's analysis and therefore 

concur in the judgment of remand, I write separately to respond 

to the dissent and to explain that, in my view, the better course 

would be to simply reverse the district court's grant of habeas 

corpus relief to the detainee Adnan Farhan Abd Al Latif. The 

dissent attacks Judge Brown's majority opinion on three 

grounds. The first two grounds are related: the dissent claims 

that there is no clear error in the district court's opinion, 

Dissenting Op. at 2, 20-45 and that we have arrived at the 

contrary conclusion-finding clear error-only by 

"undertak[ ing] a wholesale revision of the district court's careful 

fact findings," and "suggest[ ing] [ our] own story," Dissenting 

Op. at 2, 32; see id. at 32-39. As discussed below, however, the 

dissent misunderstands the clear error standard of review and its 

application to this case. The dissent also claims that our use of 

the presumption of regularity "moves the goal posts" and "calls 

the gmne in the government's favor." Dissenting Op. at 2, 19. 

As also set forth below, however, the dissent's high-pitched 

rhetoric not only ignores the safeguards under which we have 

already endorsed-albeit not explicitly-the presumption of 

regularity but also fails to understand how the presumption of 

regularity in fact aids the reliability inquiry of hearsay evidence. 

Finally, I believe remand for further factfinding will be a 

pointless exercise. Assuming he decides to testify, Latif cannot 

persuasively counter the presumption of regularity. Nor can he 

overconle the long odds against his exculpatory narrative by 

testifying, as his' declaration already tells his story and any 

embroidery thereof will only work against him. Accordingly, I 

concur in the remand judgment only. 
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I. 

This appeal hinges on one question: did the district court 

correctly find the government's key piece of evidence 

unreliable? See Abdah v. Obama (Latif), No. 04-1254,2010 WL 

3270761, at *9, slip op. at 25 (D.D.C. July 21, 2010). "The 

question whether evidence is sufficiently reliable to credit is one 

we review for clear error," Al Alwi v. Obama, --- F.3d ----, 2011 

WL 2937134, at *6 (D.C. Cir. July 22,2011), and ordinarily this 

standard of review creates little controversy. 

The clear error standard requires us to reverse a factual 

finding if" 'on the entire evidence' " we are" 'left with the 

definite and firm conviction that a mistake has been 

committed.' "Anderson v. City of Bessemer, 470 U.S. 564, 573 

(1985) (quoting United States v. Us. Gypsum Co., 333 U.S. 

364, 395 (1948)). The dissent first claims that we cannot 

legitimately find clear error here, relying on our precedent that 

"[ w ]here there are two permissible views of the evidence, the 

factfinder's choice between them cannot be clearly erroneous," 

Awad v. Obama, 608 F.3d 1, 7 (D.C. Cir. 2010) (internal 

quotations omitted), cert. denied, 131 S. Ct. 1814 (2011), and 

that "[t]he task of resolving discrepancies among the various 

accounts offered into evidence is quintessentially a matter ... 

for the district court sitting as the fact-finder," Al-Madhwani v. 

Obama, 642 F.3d 1071, 1076 (D.C. Cir. 2011) (internal 

quotations omitted). See Dissenting Op. at 20, 31. But the 

dissent apparently forgets that the quoted passages describe only 

the starting point for clear error review. Granted, the district 

court has wide latitude to resolve factual disputes-but only 

within certain bounds. We must assure ourselves that the district 

court's finding is "permissible" or "plausible in light of the 

record viewed in its entirety." Anderson, 470 U.S. at 574. In 

both Awad and Al-Madhwani, we examined the evidentiary 

bases for the district court's factual findings and, finding them 
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within the range of "permissible" inferences to be drawn from 

the evidence, concluded that the district court had not clearly 

erred. See Awad, 608 F.3d at 6-9; AI-Madhwani, 642 F.3d at 

1076. But in both Awad and AI-Madhwani, unlike here, the 

district court's permissible inferences were based on the record 

in its entirety-not on the view that one side's evidence, 

standing in isolation, is plausible. 

The dissent seems to suggest that ifLatifs story "on its own 

terms[] is not 'intrinsic [ally J implausible,' " then we cannot 

review the district court's evaluation of the government's key 

piece of evidence or other pieces of evidence. Dissenting Op. at 

30,32. It is not enough, however, for the district court to base its 

factual findings on some evidence in the record. The clear error 

standard authorizes us to reverse a finding, not unless, but 

" 'although there is evidence to support it.' " Anderson, 470 

U.S. at 573 (quoting Us. Gypsum Co., 333 U.S. at 395) 

(emphasis added); see also Easley v. Cromartie, 532 U.S. 234, 

257 (2001) (finding clear error even where "record contains a 

modicum of evidence offering support for the District Court's 

conclusion"). Where the record contains conflicting evidence, 

then, the clear error standard requires us, as the reviewing court, 

to assess the comparative weight of the evidence both for and 

against the district court's finding. It may be that the evidence 

relied upon by the district court is insufficiently probative to 

sustain its finding. See, e.g., Easley, 532 U.S. at 247, 250, 257 

(clear error where statistical evidence "too small to carry 

significant evidentiary weight," testimony did not provide "more 

than minimal support" and other evidence did not "significantly 

strengthen" district court's finding). Or the evidence may be 

outweighed by other, more persuasive evidence. See, e.g., 

Anderson, 470 U.S. at 575 (credibility finding clearly erroneous 

if"[ dJocuments or objective evidence ... contradict the witness' 

story"); us. Gypsum Co., 333 U.S. at 396 (clear error 
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"[ w ]here . . . testimony is in conflict with contemporaneous 

documents"). The dissent is simply wrong to equate Judge 

Brown's careful and complete review of the record 

evidence-which finds Latif s version both minimally 

probative, Majority Op. at 45-46, and decisively outweighed by 

the government's evidence, id. at 20-31-with a "wholesale 

revision of the district court's careful fact findings," Dissenting 

Op. at 2. 

With the clear error framework in mind, there is no 

difficulty in that the district court cle erred in 

to credit 

to on ty 

we ac a government record, see Majority Op. at 6-20. 

At the same time, the district court gave undue emphasis both to 
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and to Latif s "plausible" 

...... " ... , ......... ,,, .. veexp tra ,Latif,2010WL3270761, 

at *9, slip op. at 26. The second error is especially glaring not 

only in light of the district court's failure to make any finding 

regarding Latifs credibility, see AI-Adahi v. Obama, 613 F.3d 

1102, 1110 (D.C. Cir. 2010) (by "sp[ eaking] only of a possible 

alternative explanation" for detainee's actions and failing to 

"make any finding about whether this alternative was more 

likely than the government's explanation," district court failed 

to make any "comparative judgment about the evidence [that] is 

at the heart of the preponderance standard of proof' (internal 

quotations omitted)), cert. denied, 131 S. Ct. 1001 (2011), but 

also in light of the inconsistencies between Latif s alternative 

explanation-as set forth in his declaration submitted to the 

district court-and his earlier statements 

see Majority Op. at 

conSI eVIdence taken as a whole," A wad, 608 

F .3d at 7, I, like Judge Brown, cannot help but conclude that the 

district court's finding regarding the unreliability o~ 

coupled with its finding regarding the mere plau~ 
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Latif s story is neither "permissible" nor "plausible in light of 

the record viewed in its entirety," Anderson, 470 U.S. at 574. 

II. 

The dissent also asserts that application of the presumption 

of regularity to_ "disturbs" the "careful and conscious 

balance of the Important interests at stake" we have struck in 

past detainee decisions for admitting and assessing the reliability 

of hearsay evidence. Dissenting Op. at 12. Judge Brown 

thoroughly disposes of the assertion-laying out in detail that, 

while we have not heretofore enunciated the presumption of 

regularity, we have all but done so. See Majority Op. at 14-20. 

And we most assuredly are not "discard[ing] the unanimous, 

hard-earned wisdom" of district courts that have assessed 

hearsay evidence in detainee cases. Dissenting Op. at 13. To the 

contrary, sound evidentiary considerations warrant incorporating 

the presumption of regularity-in the careful manner we 

expressly do today-into the district court's overall reliability 

assessment of these records as we routinely do with others, 

including the point that the facts supporting the presumption of 

regularity have significant probative force in their own right, as 

discussed below. 

Moreover, our holding does nothing to disturb the existing 

framework for hearsay evidence. All hearsay evidence "must be 

accorded weight only in proportion to its reliability." Barhoumi 

v. Obama, 609 F.3d416, 427 (D.C. Cir. 2010). The district court 

assesses reliability in the first instance, see Parhat v. Gates, 532 

F.3d 834, 847-48 (D.C. Cir. 2008), and in so doing must 

consider whatever "indicia of reliability" the hearsay evidence 

manifests as well as any" 'additional information' "bearing on 

the question of reliability. Bensayah v. Obama, 610 F.3d 718, 
SECRET 7 SECRET 

725-26 (D.C. Cir. 2010) (quoting Parhat, 532 F.3d at 849).3 The 

district court considers a wide range off actors-recognizing that 

anyone of several "hearsay dangers" might render the hearsay 

unreliable, see Williamson v. United States, 512 U.S. 594, 598 

(1994) ("The declarant might be lying; he might have 

misperceived the events which he relates; he might have faulty 

memory; his words might be misunderstood or taken out of 

context by the listener."). Information "relayed through an 

3 Parhat also requires that hearsay evidence "be presented in a 

form, or with sufficient additional information, that permits the ... 

court to assess its reliability." 532 F.3d at 849. As Barhoumi notes, 

however, the quoted passage has more to do with the form than with 

the substance of hearsay evidence: "the problem with the intelligence 

reports at issue in Parhat was that they failed to provide 'any of the 

underlying reporting upon which the documents' bottom-line 

assertions are founded,' thus inhibiting our ability to evaluate the 

reliability of those assertions." 609 F.3d at 428 uot' Parhat, 532 

F.3d at 846-47)). 
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interrogator's account" presents an additional "level of technical 

hearsay because the interrogator is a third party unavailable for 

cross examination." AI-Bihani v. Obama, 590 F.3d 866, 879 

(D.C. Cir. 2010), cert. denied, 131 S. Ct. 1814 (2011). The 

presumption of regularity does not come into play with respect 

to many aspects of hearsay, however; for example, it does not 

vouch for assertions made about a detainee by a third party nor 

does it answer the reliability inquiry if the detainee claims he 

was coerced in making admissions. Rather, the presumption 

touches on only one dimension of reliability: "it presumes the 

government official accurately identified the source and 

accurately sumlnarized his statement, but it implies nothing 

about the truth of the underlying non-government source's 

statement." Majority Op. at 10. Thus it addresses only the 

question whether the "interrogator's account,"AI-Bihani, 590 

F.3d at 879, faithfully records the underlying statement. See, 

e.g., United States v. Smith, 521 F.2d 957, 964-65 (D.C. Cir. 

1975) ("it is presumed that [the police officer] accurately 

transcribed and reported [the witness's] story" but "complaining 

witness' [s] description of the crime, recorded by the police 

officer in his report, . . . does not deserve the presumption of 

regularity"). 

The Federal Rules of Evidence, which carve out exceptions 

to the general rule against hearsay on the ground that "some 

kinds of out-of-court statements are less subject to ... hearsay 

dangers," Williamson, 512 U.S. at 598, make certain public 

records admissible, using "the assumption that a public official 

will perform his duty properly" as well as "the reliability factors 

underlying records of regularly conducted activities generally." 

Fed. R. Evid. 803(8) advisory committee's notes (1972 

Proposed Rules). Granted, in detainee habeas cases, the Rules do 

not decide the admissibility of hearsay evidence. Barhoumi, 609 

F.3d at 422 (rejecting as "counter to this court's [precedent]" the 
SECRET 9 SECRET 

claim of error in admission of hearsay evidence "absent a 

demonstration by the government that they fall within an 

established hearsay exception in the Federal Rules of 

Evidence"). But because the presumption of regularity is based 

on much the same rationale as the public records exception, see 

United States v. Chern. Found., 272 U.S. 1,15 (1926) 

(presumption applies because "courts presume that [public 

officers] have properly discharged their official duties."); cf 

Legille v. Dann, 544 F.2d 1, 7 n.39 (D.C. Cir. 1976) 

(presumption of due delivery of the mail and presumption of 

regularity in government agency's handling thereof "have a 

common origin in regularity of action"), the facts supporting the 

presumption of regularity carry significant probative force in 

their own right. 4 See Legille, 544 F.2d at 9 ("The facts giving 

rise to the presumption [of procedural regularity] would also 

have evidentiary force, and as evidence would command the 

respect normally accorded proof of any fact."); Webster v. 

Estelle, 505 F.2d 926, 930 (5th Cir. 1974) ("The same special 

reliability that warrants relaxing the hearsay rule as to [public 

records] also warrants according them great evidentiary 

weight."), cert. denied, 421 U.S. 918 (1975); Stone v. Stone, 136 

F.2d 761, 763 (D.C. Cir. 1943) ("[T]he basic fact that public 

officials usually do their duty . . . has . . . that quality and 

quantity of probative value to which it is entitled, entirely apart 

from any presumption; just as is true of any other fact which is 

based on common experience."); Alsabri v. Obarna, 764 F. 

4While the facts surrounding hearsay evidence may not always 

justify applyin the p tion of regularity, it is prop lied 

here because 
SECRET 10 SECRET 

~.D.C. 2011) ("The fact that _ 

_ were prepared by government agents In 

the course of their normal intelligence gathering duties provides 

a degree of support for their reliability."). The presumption of 

regularity thus embodies a common-sense judgment about the 

general reliability of hearsay evidence memorialized in a 

government record. And the district court's failure to apply the 

presumption of regularity is an error going to the heart of the 

"careful and fine-grained approach to the assessment of 

reliability," Dissenting Op. at 13, it is required to undertake. 

N or does the requirement that a challenger offer "clear or 

specific evidence" to defeat the presumption of regularity, Riggs 

Nat'l Corp. v. Comm'r, 295 F.3d 16, 21 (D.C. Cir. 2002), 

somehow short-circuit the district court's reliability analysis, as 

the dissent suggests. Dissenting Op. at 9-10. It is well 

established that clear error can occur if a district court fails to 

credit otherwise reliable evidence on the basis of insignificant 

gaps therein. See, e.g., Almerfedi v. Obama, --- F.3d ----, 2011 

WL 2277607, at *5 (D.C. Cir. June 10, 2011) ("district court 

clearly erred in regarding [hearsay evidence] as unreliable" 

because of "inconsequential" "discrepancy in dates"). Requiring 

a challenger to produce "clear or specific evidence"-that is, 

evidence with real probative force-to defeat the presumption 

of regularity prevents a district court from relying on minor 

discrepancies to reject a government record. At the same time 

it disc s the kind of . 
SECRET 11 SECRET 
SECRET 12 SECRET 

III. 

Based on the considerations outlined above-as well as 

Judge Brown's comprehensive opinion-I believe the district 

court clearly erred in failing to credit _ Unlike my 

colleague, however, I also believe reman~se for further 

factfinding will be a waste of time and judicial resources. Judge 

Brown believes remand-with the possibility that Latif might 

choose to testify-is necessary to allow the district court to 

correctly weigh Latif's credibility. See Majority Op. at 36-38. 

While I agree that the district court erred in failing to assess 

Latif's credibility, Majority Op. at 31-38-for "[a]tno point did 

the court make any finding about whether [Latif's narrative] was 

more likely than the government's explanation," Al-Adahi v. 

Dbama, 613 F.3d at 1110-1 also believe remand is unnecessary 

because "the record permits only one resolution of the factual 

issue," Pullman-Standardv. United Steel Workers of Am., AFLCID, 456 U.S. 273, 292 (1982); see Easley, 532 U.S. at 257 

(finding clear error and reversing because "we do not believe 

that providing appellees a further opportunity to make their ... 

arguments in the District Court could change th[e] result"). 

The apparent premise behind Judge Brown's argument 

for remand is that Latif might of Mer testimon so compelling that 

it would shake our confidence and overcome any 

doubt about Latif's credibility. But w at testimony could 

possibly accomplish so much? If Latif were to repeat on the 

stand the same unpersuasive assertions he made in his 

declaration-assertions that are inconsistent with his earlier 

court wou e no 

'-U' .. "Jv .. ~eve him. "Credibility involves more than demeanor" and 

instead "apprehends the over-all evaluation of testimony in light 

of its rationality or internal consistency and the manner in which 
SECRET 13 SECRET 

it hangs together with other evidence." United States v. McCoy, 

242 F.3d 399, 408 n.15 (D.C. Cir.) (internal quotations omitted), 

cert. denied, 534 U.S. 872 (2001); see also Anderson, 470 U.S. 

at 575 ("[F]actors other than demeanor and inflection go into the 

decision whether or not to believe a witness. Documents or 

objective evidence may contradict the witness' story; or the 

story itself may be so internally inconsistent or implausible on 

its face that a reasonable factfinder would not credit it. "). If, on 

the other hand, Latif were to change his story once again on 

remand, the very fact that he "made inconsistent statements ... 

would tend to undermine his credibility." United States v. 

Stover, 329 F.3d 859,867-68 (D.C. Cir. 2003), cert. denied, 541 

U.S. 1018 (2004). Latifs credibility would suffer even if he 

largely repeated the story in his declaration but also decided to 

embellish it with additional detai 

_-because" statements omIt 

:= are inconsistent if it would have been 

'natural' for the witness to include them in the earlier 

statement." United States v. Stock, 948 F.2d 1299, 1301 (D.C. 

Cir. 1991). In short, Latif could only dig himself deeper into a 

hole on remand.6 Because the record can reasonably be viewed 

in only one way-that is, against him-I would not remand 

simply to give Latif a shovel but would instead conclude the 

litigation with the only result the evidence allows: that the 

government has indeed "shown that Latif is part of Al Qaeda or 

6Indeed, even Latif's continued failure to testify would likely 

work against him. Majority Op. at 37-38; see Mitchell v. United 

States, 526 U.S. 314, 328 (1999) (" '[T]he Fifth Amendment does not 

forbid adverse inferences against parties to civil actions when they 

refuse to testify in response to probative evidence offered against 

them.' " (quoting Baxter v. Palmigiano, 425 U.S. 308,318 (1976))). 
SECRET 14 SECRET 

the Taliban." Latif, 2010 WL 3270761, at *1, slip op. at 3. 
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Judge, dissenting: The government's 

.L...,...,vJ.J...,"J.J.ts' Br. 10, is a single 

out parties arguments a Report's internal and 

external indicia of reliability, the district court found it "not 

sufficiently reliable to support a finding by a preponderance 

of the evidence that Latif was recruited by an Al Qaeda 

member or trained and fought with the Taliban." Abdah 

(Latif) v. Obama, No. 04-cv-01254, slip op. at 25 (D.D.C. 

July 21, 2010). According to the district court, "there is a 

tion as to whether the [Report] accurately reflects 

the incriminating facts in the [Report] are not 

UV.l."~V'U.. and Latif has presented a plausible alternative 

story to explain his travel." Id. at 26. The government 

concedes that its case for lawfully detaining Latif "turn [ s]" on 

the Report. Appellants' Br. 5. This, then, represents a first 

among the Guantanamo habeas appeals in this circuit: never 

before have we reviewed a habeas grant to a Guantanamo 

detainee where all concede that if the district court's fact 

findings are sustained, then detention is unlawful. Cf 

Almerfedi v. Obama, No. 10-5291, 2011 WL 2277607, at *4-

5 (D.C. Cir. June 10, 2011) (reversing habeas grant and 

finding detention lawful based on conceded facts and facts 

found by the district court); Uthman v. Obama, 637 F.3d 400, 

402 (D.C. Cir. 2011) (same); AI-Adahi v. Obama, 613 F.3d 

1102, 1103, 1111 (D.C. Cir. 2010) (same). 

But rather than apply ordinary and highly deferential 

clear error review to the district court's findings of fact, as 

this circuit has done when district courts have found the 

government's primary evidence reliable, the court, now 
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facing a finding that such evidence is unreliable, moves the 

goal posts. According to the court, because the Report is a 

government-produced document, the district court was 

required to presume it accurate unless Latif could rebut that 

presumption. Maj. Op. at 11. In imposing this new 

presumption and then proceeding to find that it has not been 

rebutted, the court denies Latif the "meaningful opportunity" 

to contest the lawfulness of his detention guaranteed by 

Boumediene v. Bush, 553 U.S. 723, 779 (2008). 

Compounding this error, the court undertakes a wholesale 

revision of the district court's careful fact fmdings. Flaws in 

the Report the district court found serious, this court now 

finds minor. Latif s account, which the district court found 

plausible and corroborated by documentary evidence, this 

court now "hard to swallow" Maj. Op. at 39. _ 

the district court = 

court now finds do in fact 

implicate him. And ,pn and on, all without ever concluding 

that the district court's particular take on the evidence was 

clearly erroneous. But see Fed. R. Civ. P. 52(a)(6) ("Finding 

of facts, whether bas~d on oral or other evidence, must not be 

set aside unless clear,ly erroneous .... "). 

In Part I, I explain why the district court committed no 

error in declining to apply a presumption of regularity to the 

Report. In Part II, I apply the deferential clear error standard 

this circuit has used throughout these Guantanamo habeas 

cases. Finding no clear error, I would affirm the district 

court's grant of the writ of habeas corpus. 

I. 

All agree that this case turns on whether the district court 
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correctly found that the government's key piece of evidence, 

the Report, was unreliable. And all agree that the "question 

whether evidence is sufficiently reliable to credit is one we 

review for clear error." Al Alwi v. Obama, No. 09-5125,2011 

WL 2937134, at *6 (D.C. Cir. July 22, 2011). Our 

disagreement centers on whether the district court was 

required to afford the Report a presumption of regularity. 

The presumption of regularity stems from a humble 

proposition-that "[public officers] have properly discharged 

their official duties." Sussman v. u.s. Marshals Serv., 494 

F.3d 1106, 1117 (D.C. Cir. 2007) (quoting United States v. 

Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)). The contours 

of the presumption are best understood by how courts 

typically apply it. For example, courts assume that "official 

tax receipt[s]" are properly produced, Riggs Nat'l Corp. v. 

Comm'r, 295 F.3d 16, 21 (D.C. Cir. 2002), that state court 

documents accurately reflect the proceedings they describe, 

Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir. 1985), that 

mail was duly handled and delivered, Legille v. Dann, 544 

F.2d 1, 7 n.39 (D.C. Cir. 1976), and that agency actions in the 

ordinary course of business are undertaken on the basis of 

fact, Citizens to Preserve Overton Park, Inc. v. Volpe, 401 

U.S. 402, 415 (1971) (citing Pacific States Box & Basket Co. 

v. White, 296 U.S. 176, 185 (1935)). 

These cases-in fact every case applying the presumption 

of regularity-have. ~omething in common: actions taken or 

documents produced within a process that is generally reliable 

because it is, for example, transparent, accessible, and often 

familiar. As a result, courts have no reason to question the 

output of such pr0gesses in any given case absent specific 

evidence of error. Such a presumption rests on common 

sense. For instance, courts have no grounds to credit a 

defendant's allegation that "the state court trial docket" or 
8ECRET 4 8ECRET 

"the waiver of trial by jury form" contain inaccurate 

information when that defendant has no support other than a 

self-serving allegation. See Thompson v. Estelle, 642 F .2d 

996, 998 (5th Cir. 1981) (noting that the "district court could 

properly rely upon the regularity of the state court's 

documents in preference to [the appellant's] self-serving 

testimony"). Courts presume accuracy because they can trust 

the reliability of documents produced by such processes. 

Courts and agencies are hardly infallible, but for the most part 

we have sufficient familiarity and experience with such 

institutions to allow us to comfortably rely on documents they 

produce in the ordinary course of business. 

In saying that "[ c ]ourts regularly apply the 

presumption ... [to] processes that are anything but 

'transparent,' 'accessible,' and 'familiar,' " Maj. Op. at 13, 

this court cites a single case where we presumed the accuracy 

of a tax receipt from the Central Bank of Brazil for purposes 

of claiming foreign tax credits under the Internal Revenue 

Code. See id. at 13 (citing Riggs Nat'/ Corp., 295 F.3d at 20-

22). As the Supreme Court has held, the presumption of 

regularity applies to "the actions of tax officials," and the 

"records of foreign public officials." See Riggs Nat '/ Corp., 

295 F.3d at 20 (citing Supreme Court cases). But again, this is 

because we have no reason to question or be concerned with 

the reliability of such records. 

By contrast, the Report at issue here was produced in the 

fog of war by a clandestine method that we know almost 

nothing about. It is not familiar, transparent, generally 

understood as reliable, or accessible; nor is it mundane, 

quotidian data akin to state court dockets or tax receipts. 

Its output, a intelligence report, 

was, in this court sown ared in stressful and 

chaotic conditions, filtered through interpreters, subject to 
SECRET 5 SECRET 

transcription errors, and heavily redacted for national security 

purposes." Maj. Op. at 6. Needless to say, this is quite 

different from assuming the mail is delivered or that a court 

employee has accurately jotted down minutes from a meeting. 

To support its approach here, this court invokes 

presumptions of regularity for state court fact-finding and for 

final judgments in criminal habeas proceedings. See id. at 12-

13. Aside from the abstract and uncontroversial proposition 

that courts should be sensitive to the separation of powers as 

well as to federalism, id. at 12, the analogy makes little sense. 

State court judgments and fact findings arise out of a formal 

and public adversarial process where parties generally have 

attorneys to zealously guard their interests, and where neutral 

state court judges, no less than" federal judges, pledge to apply 

the law faithfully. That federal courts give a presumption of 

regularity to jUdgments and fact findings that emerge from 

such a process, where criminal defendants have ample 

opportunity to challenge adverse evidence, see Lackawanna 

Cnty. Dist. Atty v. Coss, 532 U.S. 394, 402-03 (2001), 

provides no reason for habeas courts also to presume the 

accuracy of intelligence reports 

prepared in war. statutory habeas, 

where federal review follows state court proceedings, 

constitutional habeas is the only process afforded 

Guantanamo detainees. Cf Boumediene, 553 U.S. at 780 ("It 

appears that the common-law habeas court's role was most 

extensive in cases of pretrial and noncriminal detention, 

where there had been little or no previous judicial review of 

the cause for detention. Notably, the black-letter rule that 

prisoners could not controvert facts in the jailer's return was 

not followed (or at least not with consistency) in such 

cases."). 
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In its analysis, this court ignores a key step in the logic of 

applying a presumption of regularity, namely, that the 

challenged document emerged from a process that we can 

safely rely upon to produce accurate information. Reliability, 

not whether an official duty was performed, cf Maj. Op. at 6, 

is the touchstone inquiry in every case this court cites. For 

example, in a probation revocation decision by the Seventh 

Circuit-which, incidentally, never uses the term "regularity," 

see United States v. Thomas, 934 F .2d 840 (7th Cir. 1991)-

the court found that the probation report "was of the type that 

generally carries a presumption of reliability," id. at 846 

(emphasis added). A probation officer not only "testified [and 

was cross-examined]· about the preparation, maintenance, and 

interpretation of special reports prepared by the probation 

office" but also "applied that ... knowledge to [the report at 

issue]." Id. at 842. Given that testimony, and given also that 

"the district court. , . had reviewed the report 'many times,' " 

the Seventh Circuit saw no reason to think the report was 

"inaccurate." Id. at 846. Reinforcing its emphasis on the 

importance of ~sses.~~ng reliability, the Seventh Circuit cited 

an earlier decision, United States v. Verbeke, where it had 

found admissible a report produced by a drug treatment center 

because the report was found to be "reliable," because the 

defendant had an opportunity to cross-examine its author, and 

because no evidence discredited it. 853 F.2d 537, 539 (7th 

Cir. 1988). These decisions do not, as this court now does, ask 

only whether an official duty was regularly performed; rather, 

they examine the reliability of the proffered evidence and the 

process that produced it. As yet another decision the court 

cites puts it, courts will permit "the introduction of 

'demonstrably reliable' hearsay evidence in probation 

revocation proceedings." United States v. McCallum, 677 

F.2d 1024, 1026 (4th CiT. 1982) (emphasis added). 
SECRET 7 SECRET 

To be sure, the 

declaration 

is, nor anywhere near 

or expenence with that course of business that 

would allow us to comfortably make presumptions about 

whether the output of that process is reliable. Cf Bismullah v. 

Gates, 501 F.3d 178, 185-86 (D.C. Cir. 2007) (finding that it 

was "not at all clear" that even the Combatant Status Review 

Tribunal was "entitled to a presumption of 

regularity ... because a CSRT does not have the transparent 

features of the ordinary administrative process and the 

[military officer charged with obtaining and reviewing 

evidence] is not the final agency decisionmaker"). Of course, 

we may take some assurance from the fact that the Executive 

Branch acts in good faith when carrying out its duties. But the 

very point of Boumediene is to ensure that detainees have a 

"meaningful opportunity" to subject the Executive's detention 

decisions to scrutiny by an independent Article III court. 

This is not to say that reports similar to the one at issue 

here are necessarily unreliable. Perhaps after careful scrutiny 

district courts will conclude that many are reliable. See, e.g., 

Khan v. Obama, No. 10-5306, 2011 WL 3890843, at *4-5 

(D.C. Cir. Sept. 6, 2011). My point is far more lTIodest: 

because we are unfamiliar with thIS highly secretive process, 

and because we have no basis on which to draw conclusions 

about the general reliability of its output, we should refrain 

from categorically affording it presumptions one way or the 

other. This approach does not reflect "skeptic[ism]" or 

"cynic[ism]" about the Executive Branch, Maj. Op. at 8-it is 

nothing more than what Boumediene directs us to do. See 
SECRET 8 SECRET 

Boumediene, 553 U.S. at 786 (requiring habeas court "to 

assess," not presume, "the sufficiency of the Government's 

evidence" (emphasis added)). And indeed, from time 

immemorial courts have been skeptical of hearsay evidence 

without implying bad faith or cynicism about the Executive 

(or whoever is attempting to present that evidence). 

Nor am I suggesting that district courts should give no 

weight to sworn declarations officials that 

such 

a 

's reliability. 

For one thing, it suggests fact authentic, 

i.e., that it rec;tlly i~ an Relying on 

similar declaration~, many courts have heard 

Guantanamo h,\beas cases-including the district court herehave adopted a presumption of authenticity for government 

records like the Report even while consistently rejecting a 

presumption that su~h records are accurate. See, e.g., Alsabri 

v. Obama, 764 F. Supp. 2d 60, 66-67 & n.8 (D.D.C. 2009); 

Hatim v. Obama, 677 F. Supp. 2d 1, 10 (D.D.C. 2009), 

vacated on other grounds, F.3d 720 (D.C. Cir. 2011); Ahmed 

v. Obama, 613 F. Supp. 2d 51, 54-55 (D.D.C. 2009). But see, 

e.g., Al Kandari v. United States, 744 F. Supp. 2d 11, 19-20 

(D.D.C. 2010) (declining to adopt a presumption of either 

authenticity or accuracy). Going one step further, habeas 

courts might also properly rely on the analogy between 

intelligence reports and business records to conclude that 

"[t]he fact that these reports were prepared by government 

agents in the course of their normal intelligence gathering 

duties provid~s a degree of support for their reliability." 

Alsabri, 764 F. Supp. 2d at 68. I thus have no problem with 
SECRET 9 SECRET 

the observation, made in a decision cited by the concurrence, 

Con. Op. at 10, that "the basic fact that public officials usually 

do their duty ... has ... that quality and quantity of probative 

value to which it is entitled." Stone v. Stone, 136 F.2d 761, 

763 (D.C. Cir. 1943). As that decision goes on to say, 

however, "the probative strength of the evidence is for the 

[factfinder] to consider." Id. Nor do I quarrel with the 

observation t records 

of inCUlpatory 

are more to evidence than 

uV'''''.U.l.J.V,l.I.'-''' reporting third-party (and sometimes anonymous) 

hearsay. 

But this court goes well beyond these modest 

conclusions-and well beyond what the government actually 

argues in its briefs-when it relies on the bare fact that 

government official~ have incentives to maintain careful 

intelligence reports as a reason to require district courts to 

presume that such reports are not only authentic, but also 

accurate, despite circumstances casting their reliability into 

serious doubt. See Appellants' Br. 30-31 (arguing in passing 

that the district court, in this case erred by failing to give any 

weight to the general presumption that government officials 

carry out their duties properly but never urging adoption of a 

categorical, burden-shifting presumption of regularity); 

Appellants' Reply Br. 22-24 (same). One need imply neither 

bad faith nor lack of incentive nor' 'tude on the of 
SECRET 10 SECRET 

reliable, transparent, or accessible to warrant an automatic 

presumption of regularity. 

It is thus not at all surprising that our court has never 

before applied the presumption of regularity in Guantanamo 

Bay habeas cases despite numerous opportunities to do so. 

For instance, in Barhoumi, the government, seeking to 

establish that the petitioner was "part of' an al Qaida 

associated militia, relied on an intelligence report that 

included an English translation of a diary allegedly authored 

by a member of that militia. Barhoumi v. Obama, 609 F.3d 

416, 420 (D.C. Cir. 2010). Among other challenges to this 

evidence, we considered petitioner's argument that the 

government's failure to make a copy of the diary available in 

its original Arabic or to provide information regarding the 

qualifications or motives of the translator raised doubts about 

reliability. A!though we characterized this objection as 

"troubling" and . "accept[ ed] that the additional layer of 

hearsay added by the diary's translation render[ ed] it 

somewhat less reliable than it otherwise would [have] be[ en] 

(particularly if the government had provided information 

regarding its translation)," we nonetheless reviewed the 

diary's internal and external indicia of reliability and 

concluded that the district court had not clearly erred by 

relying on it. Id. at 430-32. Had we believed that a 

presumption of regularity applied to the translation recorded 

in the intelligence report, none of that extended analysis 

would have been necessary. Instead, we would have simply 

presumed the docum~nt' s accuracy-and expected the district 

court to do the same. As my colleagues begrudgingly admit, 

Maj. Op. at 16-17, that is exactly what the government asked 

us to do in Barhoumi, but to no avail. See Appellees' Br. 52, 

Barhoumi, 609 F.3d 416 (No. 09-5383) (arguing that 

"translations are presumed to be accurate in the absence of 

evidence to the contrary" (emphasis added)). 
SECRET 11 SECRET 

We followed exactly the same playbook in Bensayah and 

Al Alwi, two cases in which we reviewed district court 

reliability determinations about 

vernment ~'~J l~""''''.L.l.F">''''''''' 

v. 

. In Bensayah, 

rather than granting the government's evidence a presumption 

of regularity on the grounds that it consisted of government 

records regularly kept, we carefully evaluated other evidence 

purporting to corroborate the document's contents, ultimately 

concluding that the district court committed clear error by 

finding that document reliable. See id. at 726-27. Nor did we 

apply a presumption o.re ulari in Al Alwi even though the 

government's evidenc consisted of interrogation 

summaries allegedly reportIng t e petitioners' own statements 

and even those documents had indicia of 

reliability deed, in Al 

Alwi we a .PI court must take 

the absence of corroboration into account in assessing the 

reliability of petitioner's out-of-court statements," Al Alwi, 

2011 WL 2937134, at *6 (emphasis added)-that directly 

conflicts with this court's observation that "[b]y definition, a 

presumptively reliable record needs no additional 

corroboration unless the presumption is rebutted." Maj. Op. at 

35. 

And most recently, in Khan v. Obama, we reviewed the 

district court's finging that the government's informant 

reports were reliable. Again, rather than applying a 

presumption of regularity, we spent page after page carefully 

evaluating the reliability of the reports. In affirming the 

district court's determination that the documents were 

reliable, we emphasized external indicia of reliability, such as 
SECRET 12 SECRET 

photographs and items seized from petitioner's home, as well 

as detailed government declarations explaining why the 

reports were reliable. Khan, 2011 WL 3890843, at *7-10. 

Our approach in Barhoumi, Al Alwi, Bensayah, and Khan 

reflects a ·careful and conscious balancing of the important 

interests at stake. While federal courts typically exclude 

hearsay unless it falls within a specific exception, see Fed. R. 

Evid. 803, we understand that in the context of enemy 

combatant proceedings such evidence may be the best 

available. Barhoumi, 609 F.3d at 427. Thus, rather than acting 

on our deep, historically rooted skepticism of hearsay by 

excluding such evidence altogether, we admit it but are 

careful to assign it no more weight than it is worth as 

measured by any available indicia of reliability. See id. 

(holding that hearsay evidence is "always admissible" in such 

proceedings, bVt tha.~ it "must be accorded weight only in 

proportion to its reliability"); see also AI-Bihani v. Obama, 

590 F.3d 866,. 879 (D.C. Cir. 2010). The presumption of 

regularity, which· this court expressly premises on 

"defer[ence] to Executive branch expertise," Maj. Op. at 12-

13, disturbs this car~~l balance, substituting a presumption in 

place of careful district court "review and assess[ ment of] all 

evidence from both ~ides." AI-Bihani, 590 F.3d at 880. Given 

the degree to whIch our evidentiary procedures already 

accommodate the government's compelling national security 

interests by admitting all of its evidence, including hearsay; 

given the heightened risk of error and unlawful detention 

introduced by requiring petitioners to prove the inaccuracy of 

heavily redacted government documents; and given the 

importance of preserving "the independent power" of the 

habeas court "to assess the actions of the Executive" and 

carefully weigh its evidence, id., I find this court's departure 

from our practice deeply misguided. 
SECRET 13 SECRET 

To be clear, I make no claim that anything in Barhoumi, 

Bensayah, Al Alwi, Khan, or any of our other Guantanamo 

habeas cases affirmatively rules out the possibility of applying 

a rebuttable presumption of accuracy to certain kinds of 

government evidence in some circumstances. My point is 

only that our cases, proceeding in the very common-law-like 

fashion that my colleagues describe, see Maj. Op. at 19, have 

endorsed and applied a careful and fine-grained approach to 

the assessment of reliability. We have applied that approach 

to claims that a document was mistranslated (Barhoumi) and 

to claims that a document is insufficiently corroborated (AI 

Alwi, Khan )-two of the issues in this case. We have applied 

that approach to a (Bensayah, 

Al A and to . 

_ 

~ we 

(Barhoumi, Al Alwi, ,Khan) and overturned (Bensayah) district 

court findings that a government document is reliable. The 

only feature of this case not previously encountered is that 

here the government lost: the district court found the 

dispositive gov~rnment Report unreliable and granted a writ 

of habeas corpus. 

Moreover, the presumption discards the unanimous, hardearned wisdom of our district judges, who have applied their 

fact-finding expertise to a wide array of government hearsay 

evidence. In doing so, they have developed a uniquely 

valuable perspective that we ought not so quickly discard. 

These judges, including the district judge in this case, have 

unanimously rejected motions to give government evidence a 

presumption of accuracy. See, e.g., Alsabri, 764 F. Supp. 2d at 

66 (noting "ample reason" to decline to presume the accuracy 

of the goverrn;nent's exhibits and explaining that circuit 

precedent supported its approach); Al Kandari, 744 F. Supp. 

2d at 19 ("Simply assuming the Government's evidence is 
SECRET 14 SECRET 

accurate and authentic does not aid [the reliability] inquiry."); 

Ahmed, 613 F. Supp. 2d at 55 ("[T]here is absolutely no 

reason for this Court to presume that the facts contained in the 

Government's exhibits are accurate."); see also Benjamin 

Wittes, Robert M. Chesney & Larkin Reynolds, The 

Emerging Law of Detention 2.0, at 52 (May 12, 2011) 

(indicating that "none of the publicly available rulings on the 

issue have favored the government"), 

available at http://www.brookings.edu/papers/2011105_guant 

anamo _ wittes.aspx. Rather than ignoring serious doubts about 

government evidence by presuming its accuracy, our district 

courts have instead done exactly what we expect of careful 

factfinders and precisely what our case law demands: 

scrupulously assess the reliability of each piece of evidence 

by applying "a long, non exclusive list of factors ... such as: 

consistency or inconsistency with other evidence, conditions 

under which tp~ exhibit and statements contained in it were 

obtained, accuracy or translation and transcription, personal 

knowledge of [the] declarant ... , levels of hearsay, 

recantations, etc." Ahmed, 613 F. Supp. 2d at 55; see also 

Sulayman v. Obam(l, 729 F. Supp. 2d 26, 42 (D.D.C. 2010) 

("As to many of the intelligence reports [the government] 

relies upon . . . there is nothing in the record regarding the 

qualifications of the interpreters used in those interrogations 

to render a reliable interpretation. There are other intelligence 

reports ... in which the government has failed to provide 

foundational evidenc.e that those statements 'were made under 

circumstances that render them intrinsically reliable or were 

made by reliable so~rces.' " (citation omitted)). 

Brushing aside these district court rulings, my colleagues 

think that those courts "may" have been denying a 

presumption of accuracy because they "[ c ]onfus[ ed]" it for a 

presumption of truth,. Maj. Op. at 9, the difference being that 

the latter presumes the content of a report is true, whereas the 
SECRET 15 SECRET 

former presumes that the government official 

did so ........... , ................. ... 

no nor do I, core 

question presented in this case is whether the Report 

accurately reflects _ Unsurprisingly, my 

colleagues cite not a si~ere a district court refers 

to a presumption of truth or, for that matter, a single instance 

in which the government argued for a presumption of truth 

rather than a presumption of accuracy. They cite Ahmed, but 

nowhere did the district court there say that "the requested 

presumption would go to the truth of 'the facts contained in 

the Government's exhibits.' " Maj. Op. at 10 (citing Ahmed, 

613 F. Supp. 2d at 55). Rather, the district court denied a 

presumption of accuracy, doing so for several reasons, 

including the need to assess the "accuracy of translation and 

transcription," and not just because of alleged torture, as this 

court now implies. 613 F. Supp. 2d at 55; see also Al Mutairi 

v. United States, 644 F. Supp. 2d 78, 84 (D.D.C. 2009) 

(expressing concern that the government's evidence "is based 

on reports of interrogations (often conducted through a 

translator) where translation or transcription mistakes may 

occur"). In Al Mutairi, the district court even pointed to 

evidence in that very case exemplifying such problems: "for 

over three years" the government had, "based on a 

typographical error in an interrogation report," erroneously 

insisted "that Al Mutairi manned an anti-aircraft weapon in 

Afghanistan." Id.; see also Al Rabiah v. United States, 658 F. 

Supp. 2d 11, 18 (D.D.C. 2009) (noting "discrepan[cies]" 

between two reports summarizing the same interrogation that 

the government had made no attempt to reconcile); Al Odah v. 

United States, 648 F. Supp. 2d 1, 6 (D.D.C. 2009) (noting that 

"interrogators and/or interpreters included incorrect dates in 

three separate reports that were submitted into evidence based 
SECRET 16 SECRET 

on misunderstandings between the Gregorian and the Hijri 

calendars"). Indeed, the same district court whose decision we 

now review explained in another Guantanamo case that it 

"has learned from its experience with these cases that the 

interrogation summaries and intelligence reports on which 

[the Government] rel[ies] are not necessarily accurate and, 

perhaps more importantly, that any inaccuracies are usually 

impossible to detect." Odah v. Obama, No. 06-cv-1668, slip 

op. at 3 (D.D.C. May 6, 2010); see also id. ("[T]here are 

many steps in the process of creating these documents in 

which error might be introduced [ :] . . . the interpreter must 

understand the question posed and correctly translate it; the 

interviewee must understand the interpreter's recitation of the 

question; the interpreter must understand the interviewee's 

response and correctly interpret it; the interrogator must 

understand the interpreter's translation of the response; the 

interrogator must take accurate notes of what is said; and the 

interrogator must accurately summarize those notes when 

writing the interrogation summary at a later time."). Of 

course, concerns about the accuracy of the reports necessarily 

raise concerns about their truth. But there are no grounds for 

assuming the district courts are confused about this 

distinction. 

In support of a presumption of regularity, this court relies 

on the plurality opinion in Hamdi, which, applying Due 

Process analysis, states that "the Constitution would not be 

offended by a presumption in favor of the Government's 

evidence" in enemy combatant proceedings for citizen 

detainees "so long as that presumption remained a rebuttable 

one and fair opportunity for rebuttal were provided." Hamdi 

v. Rumsfeld, 542 U.S. 507, 534 (2004) (plurality opinion). 

According to this court, because the Hamdi plurality 

provisionally blessed such a general presumption, its own 

presumption requiring deference to official government 
SECRET 17 SECRET 

documents must pass constitutional muster. Maj. Op. at 7. But 

the Hamdi plurality made clear that the presumption it 

sanctioned would apply only if the government "puts forth 

credible evidence that the habeas petitioner meets the enemycombatant criteria." 542 U.S. at 534 (emphasis added); see 

also Almerfedi, 2011 WL 2277607, at *4 & n.7 (explaining 

the Hamdi framework requires the government to "put forth 

credible facts" tending to show that the petitioner meets the 

detention standard, such as that he received military training 

at an al Qaida camp, which the petitioner can then rebut with 

his own facts and explanation). In other words, a presumption 

is acceptable if the government can first show that its 

evidence is credible, but the Hamdi pluraJity never suggested 

that the government could make that showing by relying on a 

presumption that government-produced evidence is credible 

and accurate. It is the latter presumption that is at issue here 

and about which the Hamdi plurality had nothing to say. 

Given that the district court in this case concluded that the 

Report was "not sufficiently reliable," Latif, slip op. at 25-

i.e., that it was not credible-the court's reliance on the 

Hamdi plurality to defend its presumption of regularity is 

misplaced. 

This court believes that our decisions in AI-Bihani, 590 

F.3d 866, and Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008) 

support the "continuing viability" of applying a presumption 

of regularity to Guantanamo habeas cases. Maj. Op. at 14. In 

AI-Bihani, however, although the district court "reserved [the] 

authority" granted by its case management order to presume 

the government's evidence accurate, it went on to "assess[] 

the hearsay evidence's reliability as required by the Supreme 

Court." AI-Bihani, 590 F.3d at 880. Even the government 

agrees with this view of AI-Bihani. See Appellees' Br. 52, 

Barhoumi, 609 F.3d 416 (No. 09-5383) ("In this case, as in 

Bihani, the district court did not presume the accuracy or 
SECRET 18 SECRET 

authenticity of the government's evidence." (emphasis 

added)). The most one can say about Al-Bihani on this issue is 

that we suggested-in dicta-that a district court could apply 

a presumption to a particular piece of evidence if 

appropriate-a power the district court in that case declined to 

exercise. This is a far cry from the holding today-that all 

such reports and their underlying hearsay must be granted a 

presumption of regularity. As to Parhat, a pre-Boumediene 

case arising under the Detainee Treatment Act of 2005, it is 

true that the Act incorporated a "rebuttable presumption that 

the Government Evidence is genuine and accurate." Maj. Op. 

at 15 (emphasis removed). But in that case, we took the 

opportunity to clarify that, at a minimum, hearsay evidence 

"must be presented in a form, or with sufficient additional 

information, that permits [an assessment of] its reliability." 

Parhat, 532 F.3d at 849. As we recently reiterated, "[t]he 

government's evidence in Parhat was insufficient to enable 

the court to assess its reliability." Khan, 2011 WL 3890843, at 

*6. This hardly supports the proposition that courts must 

assume government reports like the one at issue here are 

accurate, especially given that the Supreme Court in 

Boumediene specifically found that the process provided by 

the Detainee Treatment Act was an inadequate substitute for 

the writ of habeas corpus. See 553 U.S. at 792. 

In sum, given how and where we typically apply the 

presumption of regularity, and given the balance this circuit 

has already struck on how to deal with hearsay evidence in 

Guantanamo Bay cases, and given the seasoned observations 

of our district courts about the reliability of such evidence, the 

question still unanswered to my satisfaction is "Why?" Why 

does this court now require district courts to categorically 

n""'C'l1'l'YI<=> that a government . one created in a 

with multiple 

., ...... n"' .. n1-.1-·.an translators and 
\ 

SECRET 19 SECRET 

scriveners of unknown quality-is accurate? Whether the 

presumption can be overcome by a preponderance of the 

evidence or by clear and specific evidence-this court never 

says which-I fear that in practice it "comes perilously close 

to suggesting that whatever the government says must be 

treated as true," see Parhat, 532 F.3d at 849. In that world, it 

is hard to see what is left of the Supreme Court's command in 

Boumediene that habeas review be "meaningful." 553 U.S. at 

783. 

But the court's assault on Boumediene does not end with 

its presumption of regUlarity. Not content with moving the 

goal posts, the court calls the game in the government's favor. 

Instead of remanding to give Latif an opportunity to rebut the 

presumption of regularity, this appellate court engages in an 

essentially de novo review of the factual record, providing its 

own interpretations, its own narratives, even its own 

arguments, see Maj. Op. at 20-52, and finds that "neither 

internal flaws nor external record evidence rebuts that 

presumption in this case," id. at 7. But see Pullman-Standard 

v. Swint, 456 U.S. 273, 292 (1982) (where district court fact 

"findings are infinn because of an erroneous view of the law, 

a remand is the proper course"). To be sure, such a finding 

would be appropriate if the record supported "only one 

resolution of the factual issue." 456 U.S. at 292. But that 

cannot be the case where, as here, the question of reliability 

turns entirely on witness credibility, inferences drawn from 

errors and inconsistencies in the Report, and the resolution of 

conflicts in other record evidence, see infra Part II. Given the 

court's conclusion that the presumption has not been rebutted, 

remand may well be a "pointless exercise." Con. Op. at 1. 
SECRET 20 

II. 

SECRET 

Rather than adopting a presumption of regularity, I would 

apply clear error review to the district court's findings of fact 

just as we have consistently done throughout our Guantanamo 

cases. See, e.g., Almerfedi, 2011 WL 2277607, at *3 

(reviewing district court fact findings for clear error); AIMadhwani v. Obama, No. 10-5172, 2011 WL 2083932, at *3 

(D.C. Cir. May 27,2011) (same); Salahi v. Obama, 625 F.3d 

745, 750 (D.C. Cir. 2010) (same); Al Odah v. United States, 

611 F.3d 8, 14-15 (D.C. Cir. 2010) (same); Bensayah, 610 

F.3d at 723 (same); Barhoumi, 609 F.3d at 423-24 (same); 

Awad v. Obama, 608 F.3d 1, 7 (D.C. Cir. 2010) (So long as 

"the district court's account of the evidence is plausible in 

light of the record viewed in its entirety, the court of appeals 

may not reverse it" and, critical to this case, "[ w ]here there 

are two permissible views of the evidence, the factfinder's 

choice between them cannot be clearly erroneous. " (citations 

omitted)). Under that standard, I would conclude that the 

district court committed no clear error by finding that the 

Report was insufficiently reliable; that it committed no clear 

error by crediting Latif s account of what happened only 

insofar as it needed to; and that it adequately addressed the 

other record evidence. 

A 

The starting point, of course, is the Report itself. See 

A wad, 608 F.3d at 6-7 (holding that the same clear error 

standard applies to fact findings based on documentary 

evidence and inferences drawn from that evidence). The 

district court's primary concern about the Report related to 

the circumstances under which it was produced, 

circumstances that, according to the district court, increased 

the likelihood that mistakes had been made. In particular, the 
SECRET 21 SECRET 

in the Report are redacted, the district court was 

to evaluate the accuracy of 

inquiring into the accuracy of the Report 

In view of all these concerns, the district court It 

especially troubling that neither the Report nor any of the 

Government's other evidence " information 

with which to confirm 

"[F]actual errors" in the Report reinforced the district 

rt' Id S • 'fi 11 lth !' h th R rt t t 
SECRET 22 SECRET 

Also troubling the district court was the lack of 

"corroborating evidence for any of the incriminating 

statements in the . at 26. As the district 

The district court properly weighed the cumulative effect 

of these subsidiary findings. See AI-Adahi, 613 F.3d at 1105-

06. . to the district those findin 

"'.,"Ul.\J'U In an Incorrect 

op .• 

All of the concerns just described are obviously relevant 

to evaluating the Report's accuracy. It goes without saying 

that the circumstances under which the Report was produced 

and the evidence, or lack of evidence, of care taken to avoid 
SECRET 23 SECRET 

mistakes when the Report was produced shed light on that 

question. Likewise, it is undoubtedly probative of the 

Report's reliability that it contains factual errors, for the 

presence of a known error increases the likelihood that other 

information in the Report is inaccurate as well. And of course, 

it is also relevant that the government has offered no 

independent corroboration for any of the Report's 

incriminating facts. After about the 

trustworthiness of has 

we 

ill cases "the [district] court 

must take [such an] absence of corroboration into account in 

assessing the reliability of the petitioner's out-of-court 

statements." Al AIwi, 2011 WL 2937134, at *6 (emphasis 

added). 

Moreover, none of the subsidiary fact findings the district 

court made about the Report itself were clearly erroneous. As 

this court acknowledges, "the . court cited blems 

with the its 

Nonetheless, this court insists 

inconceivable," id. at., that the 

"']t is almost 

information in 
8ECRET 24 8ECRET 

My colleagues' interpretation of the evidence is 

undoubtedly plausible. Yet when one accounts for all of the 

's various lems, the fact that admittedly true facts 

with contested inculpatory ones also 

supports plausible explanation, akin to what happens 

in the children's game of telephone. In that game, one child 

whispers a phrase to another, who in turn whispers it to a 

third, and so on, until the last child announces what he or she 

has heard. As anyone who has played well knows, the whole 

point of the game is that what the final child hears is both 

recognizably similar to the original statement and yet 

amusingly transformed. Cf Carol D. Leonnig & Josh White, 

An Ex-Member Calls Detainee Panels Unfair, WASH. POST, 

June 23, 2007 (reporting former-Combatant Status Review 

Tribunal member, Lieutenant Colonel Stephen Abraham, as 

"equat[ing] the government hearsay presented [to the CSRTs] 

about detainees with a game of telephone" (internal quotation 

marks omitted)). 
SECRET 25 SECRET 
SECRET 26 SECRET 

,moreover we no 

Irn/ynn.nn- ·nrha"l"h."' .... the redacted _ likewise 

Given that the circumstances under which 

the Report was produced increased the probability of 

mistakes, given that the Report contains other "factual errors," 

and given that the government has failed to corroborate in of 

the Report's incriminating information, Latif, slip op. 

this explanation is at least plausible-the only question or us 

when reviewing fact findings, such as these, for clear error. 

See A wad, 608 F.3d at 7 (reiterating that "[i]f the district 

court's account of the evidence is plausible in light of the 

record in its entirety, the court of appeals may not reverse it" 

(quotation omitted)). But see Maj. Op. _ (conceding this 

explanation is "possible," yet incorrect~serting that "the 

relevant question is whether th[ e] hypothesis is likely"). 

B 

The district court did not stop with the Report. It also 

"consider[ ed] the explanation of events Latif has offered"-

again in service of the critical question of whether the Report 

was "sufficiently reliable." Latif, slip op. at 27. According to 
SECRET 27 SECRET 

Latif, with the help of a charitable worker, he left Yemen in 

2001 seeking free medical treatment for the lingering effects 

of a serious head injury suffered in a 1994 car accident. 

Although the government challenges Latif s claim that he left 

Yemen in 2001 seeking medical treatment, it never disputes 

that "in 1994, [Latif] sustained head injuries as the result of a 

car accident and [that] the Yemeni government paid for him 

to receive treatment" in Jordan at that time. Id. at 5. 

Besides his own narrative, Latif also offered 

documentary evidence to corroborate his account. Three 

documents are particularly noteworthy. The first, "a letter, 

dated August 21, 1994, from a doctor at the Islamic Hospital 

in Amman, Jordan," confirms "that Latif 'was admitted' on 

July 9, 1994 'following a head injury.' " Id. at 23 (quoting 

letter). The second, "a letter dated August 18, 1999 from 

Yemen's Ministry of Public Health," states "that '[w]e 

recommend that [Latif] return to the previous center outside 

for more tests and therapeutic and surgical procedures at his 

own expense.' " Id. (alterations in original) (quoting letter, 

which also states that Latif "is hard of hearing" and that "a 

wide circular hol[e] was detected in [Latifs] left eardrum"). 

And the third-the most . t-is Latif s intake form 

out was 

Into , the intake form states that Latif 

was in possession of "medical papers" when seized traveling 

from Afghanistan to Pakistan. Id. at 23 & n.12. 

This documentary evidence, the district court found, 

"corroborat[ ed]" Latif s "plausible" story. Id. at 26-27. The 

district court also rej ected the government's contention that 

Latif s eXCUlpatory account was a "cover story" and found the 

government's "attack[s]" on the "credibility of [the] story ... 
SECRET 28 SECRET 

unconvincing." Id. at 26. This too was an obviously relevant 

evidentiary consideration. A petitioner's version of events, 

should he choose to provide one, can be relevant when 

assessing the government's evidence. After all, the more 

believable the petitioner's exculpatory account, the greater the 

reason to doubt the government's inculpatory one. el, e.g., 

Al-Adahi, 613 F.3d at 1107 (weighing petitioner's "false 

exculpatory statements" in the government's favor). Having 

thus assessed Latifs story positively, and given that the story 

contradicts incriminating information contained in the Report, 

the district court relied on the story to support its finding that 

the Report is "not sufficiently reliable." Latif, slip op. at 25. 

Although agreeing that Latif s story is relevant, my 

colleagues nonetheless conclude that by describing it as 

"plausible" and "not incredible," the district court never 

actually credited that account. But "reading the district court's 

explanation in [ such] a parsed manner that overlooks its 

meaning in context" is inconsistent with clear error review. 

United States v. Brockenborrugh, 575 F.3d 726, 741 (D.C. 

Cir. 2009). Here is what the district court actually said about 

Latif s story: 

The Court makes this ruling [i.e., about the accuracy 

of the Report] having taken into consideration the 

explanation of events Latif has offered. Latif s story 

is not without inconsistencies and unanswered 

questions, but it is supported by corroborating 

evidence provided by medical professionals and it is 

not incredible. [The district court then rejected the 

government's theory that Latif had told inconsistent 

stories over the course of his detention and was 

therefore telling a "cover story." The district court 

reasoned that the government's theory was based on 

just "two isolated statements," one of which "does 
SECRET 29 SECRET 

not contradict Latifs version of events." Finally, the 

district court found the government's] other 

arguments attacking the credibility of Latif s 

story ... similarly unconvincing. The smaller 

inconsistencies to which [the government] ha[s] 

pointed may be no more than misstatements or 

mistranslations; even if some details of Latifs story 

have changed over time, for whatever reason, its 

fundamentals have remained the same. 

Latif, slip op. at 27-28. What else could the district court have 

meant other than that it found Latif s account convincing 

enough, plausible enough, consistent enough, and 

corroborated enough to give it at least some weight against 

the government's evidence? And as we have held, "[m]erely 

because a particular piece of evidence is insufficient, standing 

alone, to prove a particular point does not mean that the 

evidence 'may be tossed aside and the next [piece of 

evidence] may be evaluated as if the first did not exist.' " 

Salahi, 625 F.3d at 753 (alteration in original) (quoting AlAdahi, 613 F.3d at 1105). After all, it is the government that 

bears the burden to demonstrate the lawfulness of detention, 

and here the district court concluded that the government had 

failed to meet that burden because (1) "there is a serious 

iiestion as to whether the [Report] accurately reflects_ 

" given (la) the circumstances under which 1t was 

pro uced and (l b) the "factual errors" it contains; (2) "the 

incriminating facts in the [Report] are not corroborated[;] and 

[(3)] Latif has presented a plausible alternative story to 

explain his travel." See Latif, slip op. at II It is in just this 

circumstance-where doubts about the government's 

evidence and confidence in the detainee's story combine with 

other evidence to fatally undermine the government's casethat a detainee may prevail even without the district court 

needing to credit the detainee's story by a full preponderance 
SECRET 30 SECRET 

of the evidence. To require otherwise would, in effect, 

inappropriately shift the burden of proof to Latif. 

Given that the district court found Latif s story entitled to 

at least some weight and given that such a finding could 

properly guide its evaluation of the government's evidence, 

the only remaining question for us is whether that finding was 

clearly erroneous. It was not. As this court itself 

acknowledges, Latifs story, on its own terms, is not 

"intrinsic [ally] implausib[le]." Maj. Op. at 39. And that 

observation is reinforced by corroborating evidence showing 

that Latif needed to leave Yemen for medical care in 1994, 

that Yemen's Ministry of Public Health recommended he do 

so again in 1999, and that Latif had medical papers with him 

when seized crossing into Pakistan. That a trip abroad for 

medical care had been necessary, not once but twice, makes it 

more likely that Latif would have needed to travel abroad for 

medical care in 2001 as well. And the fact that Latif s 

condition was still serious enough to require such a trip in 

1999, five years after he was first injured, increases the odds 

that the injury continued to be that serious two years later in 

2001. Equally important, 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. 

Attempting to cast doubt on the district court's favorable 

assessment of Latif s account, this court insists that the 

district court "toss [ed] . . . aside" inconsistencies in Latif s 

account. [d. at 45; see also id. at 42-45. But the district court 

did no such thing. It expressly recognized those 

inconsistencies, Latif, slip op. at 24-25 (summarizing the 

alleged inconsistencies); id. at 27 ("Latifs story is not without 

inconsistencies and unanswered questions."), ultimately 

finding the government's "attack[ on] the credibility of Latif s 

story" based on those inconsistencies "unconvincing." Latif, 
SECRET 31 SECRET 

slip op. at 27. Particularly significant to the district court was 

the fact that the "fundamentals [of Latif s story] have 

remained the same." Id. As Latif points out, those 

fundamentals-appearing in more than a dozen interro tion 

Surnml'lf!' es and statements from 

un 

of any 

In with al Qaida or the Taliban; his serious head 

injury from a car accident in Yemen; his inability to pay for 

the necessary medical treatment; and his expectation and hope 

that Ibrahim Alawi would get him free medical care." 

Appellee's Br. 57. Indeed, at least some in the government 

apparently agree. The commanding officer of the Defense 

Department's Criminal Investigative Task Force noted in a 

June 16, 2004 memo that Latifs statements_ 

had "been relatively consistent." Ex. 80, Me= 

Criminal Investigative Task Force to General Counsel, 

Department of Defense (June 16, 2004). Moreover, before 

making too much of smaller inconsistencies it is important to 

remember that they appear not in verbatim transcripts 

prepared by a court reporter with the aid of an audio or video 

. but rather in 

last of which 

represents evidence in record of what • 

actually. in each of_ As we remarked in 

another Guantanamo Ba~he task of resolving 

discrepancies among the various accounts offered into 

evidence is quintessentially a matter . . . for the district judge 

sitting as the fact-finder." Al-Madhwani, 2011 WL 2083932, 

at *5 (internal quotation marks omitted). 
SECRET 32 SECRET 

Rather than applying clear error review to the district 

court's resolution of such discrepancies, this court suggests its 

own story-a story not found by the district court, never 

argued by the government, and based on its own review of the 

raw evidence-about how 

v. 

(en banc) ("[D]istrict court factfindings receive 

deference under the clearly erroneous standard or they must 

be vacated. There is no de novo appellate review of 

factfindings and no intermediate between de novo and clear 

error, not even for findings the court of appeals may consider 

sub-par."). 

c 

The government points to 

evidence that, it believes, buttress its argument 

is reliable. The district court considered all s eVl 

Some items it found insufficient to outweigh its concerns 

_ and its positive assessment of Latifs story. 

~ailed to implicate Latif or prove the point the 

government hoped to make. As a reviewing court, our job is 

to determine only whether those assessments were clearly 

erroneous. They were not. 

First, consider the circumstances leading up to Latif s 

seizure by Pakistani authorities-circumstances to which the 

district court gave less weight than the government would 
SECRET 33 SECRET 

have liked. Latif left Kabul in November 2001 and then 

traveled through _ before eventually arriving at the 

Pakistani border ~akistani 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 

helpful 

Report's 

it is a 

that the 

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 1-95, "a 

known drug route." Familiar with 1-95, 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 

1-95 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 more like the lonely country road 

and thus worthy of consideration when it comes to 

distinguishing between enemy combatants and innocent 

civilians. 
SECRET 34 SECRET 

Based on nothing more than a few anecdotes, this court 

suggests that Latif s route was akin to the country road. It 

asserts that the details of Latifs post-Kabul travels are 

"analogous" to those we found "strong[ly] suggest[ive]" of al 

Qaida membership in Uthman. Maj. Op. at 47. But how 

analogous are they really? Uthman was captured "in the 

vicinity of Tora Bora" at a tilne when "most, if not all, of 

those in the vicinity of Tora Bora ... were combatants." 

Uthman, 637 F.3d at 404. By contrast, the record in this case 

contains no evidence that Latif ever traveled through the Tora 

Bora mo~ and the c. ity we know he did travel 

through __ -has over 160,000 residents of 

whom were not combatants see 

not a suspicious route, 

but also was captured with a "small group" that included two 

"confessed ... bodyguards for Osama bin Laden" and another 

admitted Taliban fighter, all three of whom Uthman had 

studied with at the Furqan Institute, "a religious school at 

which other men were recruited to fight for Al Qaeda." 

Uthman, 637 F.3d at 404-05 (internal quotation marks 

omitted). One of the bodyguards "described the group as 

'brothers' retreating from battle.' " Id. at 405. Here, Latif told 

interrogators that his Afghan guide was the only person who 

accompanied him to the Pakistani border, Ex. 25, Summary 

Interrogation the evidence to 

the ",",11,"".",,-,;r 

district court did consider it, expressly acknowledging that 

"Abu Khalud arranged travel for other detainees along the 
SECRET 35 SECRET 

same route Latif reportedly took to Afghanistan." Latif, slip 

op. at 10. Given that the government failed to demonstrate 

that route was towards the country road end of the 1-95-

country road continuum-i.e., that the evidence was 

sufficiently probative-the district court committed no clear 

error by failing to "factor[] [it] into [its] decision," Maj. Op. at 

42. 

Second, consider the government's argument that "Latif 

was recruited by an al Qaeda member" in Yemen, a theory the 

district court found the government had failed to prove. Latif, 

slip op. at 25. To support its theory, the government pointed 

to evidence allegedly showing that Latif s charitable 

benefactor, Ibrahim Alawi, is actually an al Qaida facilitator 

known as Abu Khalud, whose real name is Ibrahim Ba'alawi. 

Some of this evidence could certainly have led a reasonable 

factfinder to accept the government's interpretation, including 

that "Ba'alawi" and "Alawi" have similar spellings and that 

the route Latif took to Afghanistan at Ibrahim's urging was 

the same path reportedly taken by other detainees who, unlike 

Latif, admit to having taken that trip to fight alongside the 

Taliban and some of whom have also admitted, again unlike 

Latif, to being Abu Khalud-recruits. That evidence, however, 

hardly forecloses the district court's contrary finding that the 

government had failed to prove by a preponderance of the 

evidence that Ibrahim Alawi was Abu Khalud. To repeat, 

although we have treated evidence that a petitioner reached 

Afghanistan along a "route similar to the paths of admitted al 

Qaeda members now in U.S. custody" as a plus factor in 

determining whether that petitioner was "part of' al Qaida, 

Uthman, 637 F.3d at 405, we have never suggested nor has 

the government shown that this particular path is so uniquely 

associated with al Qaida recruits that a district court clearly 

errs when it treats such evidence as more akin to traveling 

along 1-95 than a lonely country road. 
SECRET 36 SECRET 

The record contains ample additional evidence that 

supports the district court's finding. Latif introduced expert 

declarations explaining that "Ba'alawi" and "Alawi" are 

distinct Arabic names and that both are common in Yemen. 

Latif, slip op. at 18-19. Notably, therefore, Latif's 

interrogation summaries all refer to some variation of the 

name Ibrahim Alawi but none include the "Ba," and none 

mention Abu Khalud. By contrast, interrogation summaries 

for seven of the eight detainees mentioning the al Qaida 

facilitator named Abu Khalud refer either to "Abu Khalud" or 

"Ibrahim Ba'alawi" but never "Ibrahim Alawi," id., and the 

eighth, who apparently used the name "Alawi," is a detainee 

this very district court, in a different case, found not credible 

because his statements conflicted with those of several other 

detainees, id. at 19 n.10 (citing Abdah v. Obama, 717 F. Supp. 

2d 21, 35 (D.D.C. 2010)). But see Maj. Op. at 39-41 

(ignoring the district court's adverse credibility finding about 

that detainee). Moreover, Latif described Ibrahim to 

interrogators as "skinny," with aj}!"bi beard" and as "30-40 

yrs. old," as having two children , a boy, and., 

a girl, and as being from Ibb. Lati, s Ip op. at 19-20. By 

contrast, other detainees described Abu Khalud as short, fat, 

with a short beard and moustache, and around 27 years old, 

with a visible injury on his face caused by a bullet injury 

sustained in Bosnia, with one daughter named" and as 

being from Ta'iz, not Ibb. Id. But see Maj. Op. at 50 

(dismissing these differences because Latif's des . tions of 

Ibrahim Alawi in interrogation summaries 

. In light of this' rec 

are two permissible views of the 

evidence," meaning that "the factfinder's choice between 

[those two views] cannot be clearly erroneous." Awad, 608 

F.3d at 7. 
SECRET 37 SECRET 

court also no s Innocent V~~J"""' . .l""~.LV".l 

not having his passport-that he "gave it to Ibrahim to use in 

arranging his stay at a hospital." Id. 

record evidence supports the district court's 

is. At the most basic level as the district court 
SECRET 38 SECRET 

nonetheless accuses the district court of 

evidence that 

court 

VU'~"L~~U.V.L~~.'F. the_ 

itconclu~ 

Finally, the district court's reliance on Latifs explanation 

for not having his passport is plausible in light of other record 

evidence about the practice of at least one hospital, the 

Islamic Hospital in Jordan, of taking foreign patient's 

passports "to guarantee that [those] patients will not leave the 

country before settling their bills." Pet'r Trial Ex. No.7. 

Moreover, although leaving behind one's passport with an al 

Qaida operative at an al Qaida run guesthouse might suggest 

al Qaida affiliation, see Al Alwi, 2011 WL 2937134, at *4, 
SECRET 39 SECRET 

such a scenario is several inferential steps removed from the 

only relevant fact we know about Latif-that he did not have 

his passport with him when seized. To be sure, a reasonable 

factfinder might have interpreted this evidence differently. 

Yet again, the record contains enough evidence to support 

"two permissible views of the evidence," Awad, 608 F.3d at 7 

(quotation omitted), meaning that "the factfinder's choice 

between [those two views] cannot, [therefore,] be clearly 

erroneous." Id. 

D 

The court groups many of its criticisms about the district 

court's fact finding under the catch-all header of AI-Adahi. 

According to my colleagues, the district court took an "unduly 

atomized" approach to the evidence. Maj. Op. at 39. The 

district court did no such thing. 

Absent some affirmative indication to the contrary, we 

"presum[ e] that the district court knew and applied the law 

correctly." United States v. Mauling, 557 F.3d 658, 668 (D.C 

Cir. 2009). Such affirmative evidence of legal error was quite 

obviously present in Al-Adahi, as the "fundamental mistake" 

we identified in that district court's opinion makes clear: 

AI-Adahi's ties to bin Laden "cannot prove" he was 

part of AI-Qaida and this evidence therefore "must 

not distract the Court." The fact that AI-Adahi 

stayed at an al-Qaida guesthouse "is not in itself 

sufficient to justify detention." AI-Adahi's 

attendance at an al-Qaida training camp "is not 

sufficient to carry the Government's burden of 

showing he was a part of' al-Qaida. 
SECRET 40 SECRET 

AI-Adahi, 613 F.3d at 1105 (emphasis added) (quoting district 

court opinion). By contrast, here the district court placed the 

Report, which the government concedes represents its 

"primary" piece of evidence, Appellants' Br. 10, and on 

which the government admits its "case turned," Appellants' 

Br. 5, at the center of its analysis. The district court devoted 

two and a half pages to analyzing the Report and then another 

fifteen pages to summarizing other evidence introduced by the 

parties to prop it up or knock it down. Finally, the district 

court examined the cumulative effect of various evidentiary 

concerns on the Report's reliability. When read in its full 

context, the district court's opinion suffers from nothing like 

the flaws that we reviewed in AI-Adahi. 

This court uses Al Adahi to tum the presumption of 

district court lawfulness on its head. Rather than giving the 

district court the benefit of the doubt, it seems to assume that 

the district court considered the evidence in isolation and 

ignored key facts. Take, for example, the contention that the 

district court tossed aside and considered in isolation alleged 

inconsistencies between statements attributed to Latif in 

different interrogation reports. Maj. Op. at 43-45. This 

argument fails to recognize the leeway we have afforded 

district courts to resolve discrepancies among various 

accounts in other Guantanamo cases. In A I-Madhwan i, we 

found no error in the district court's decision to credit two 

different detainees' interrogation summaries even though the 

detainees' statements contradicted each other in certain 

respects·, reasoning that the "task" of "resolving" such 

discrepancies "quintessentially" belonged to the district court. 

AI-Madhwani, 2011 WL 2083932 at *5. Yet the only 

indication that the district court in that case had actually 

resolved the relevant contradictions between the two reports is 

its bald assertion that those reports are reliable; the 

discrepancies are never mentioned, let alone analyzed. By 
SECRET 41 SECRET 

contrast, as this court concedes, the district court here 

expressly noted that it had "taken into consideration the 

explanation of events Latif has offered" in assessing the 

Report and expressly acknowledged that Latifs story is not 

without "inconsistencies and unanswered questions." Maj. 

Op. at 42. The district court then specifically assessed the two 

primary inconsistencies the government relied on, as my 

colleagues implicitly acknowledge. Id. at 43-45. Finally, the 

district court explained that any concern about "smaller 

inconsistencies," most of which it had earlier summarized, 

was outweighed by the.possibility that they had resulted from 

translation or transcription errors and by the fact that the 

"fundamentals [of Latifs story] have remained the same." 

Latif, slip. op. at 27. For its part, this court reluctantly 

recognizes all this as "a welcome step toward the holistic 

approach to the evidence we called for in AI-Adahi." Maj. Op. 

at 42-43. But it is in fact more than that. If the district court's 

implicit resolution of discrepancies in Al-Madhwani was 

adequate, then it follows a fortiori that so too was this district 

court's far more explicit treatment. My colleagues 

acknowledge that their approach is in tension with "the usual 

practice" of "assum[ing] the [district] court considered all the 

evidence," but nonetheless find this justified by the "unusual 

posture of this case"-i.e., a he-said, she-said case involving 

detainees at Guantanamo Bay. Id. at 50. But if we take 

seriously the notion that district courts are better at finding 

facts and determining credibility, then we should be all the 

more eager to defer to their expertise when the stakes are high 

and when the case comes down to he-said, she-said-that is, 

when it rests entirely on credibility and how one interprets the 

facts. 

The only affirmative indication this court identifies 

allegedly showing that the district court took an unduly 

atomized approach to the evidence relates to the 
SECRET 42 SECRET 

circumstances of Latif s capture and to _ 

~er, 

_ The 

the 

court 

district 

makes 

court 

m~ 

employed language 

similar to the language used at one point by the district court 

in AI-Adahi-specifically that "the timing of [Latif s] 

departure . . . is not sufficient to create an inference that he 

was involved in fighting." Latif, slip op. at 27 (emphasis 

added). The court, however, neglects to mention that this 

sentence appears in the middle of a paragraph evaluating the 

credibility of Latif s account, which itself appears in the 

middle of an extended assessment of the combined impact of 

multiple pieces of evidence on the Report's reliability. This 

"pars[ing]" of the district court's words "overlook[s]" what 

those words "mean[] in context," an approach that is, again, 

inconsistent with clear error review. See Brockenborrugh, 575 

F.3d at 741. 

no convmcmg 

district court should have considered evidence that it found 

does not implicate Latif-unless, of course, that finding was 

clearly erroneous, something they never claim. Suppose, for 

example, that a witness in a burglary case testifies to having 

seen a man with a similar build as the defendant walk away 

from the site of the crime. If the factfinder concludes that the 

person the witness saw was not the defendant, then surely the 

factfinder can reasonably set aside the witnesses' testimony in 

assessing whether the defendant was the burMar. So too here. 

Once the district court had determined that did not 

implicate Latif, it was entirely proper for it to put t em aside 

when evaluating the rest of the evidence. 

The remainder of the court's Al Adahi critique rests 

entirely on the claim that the district court "ignore [ d] relevant 
SECRET 43 SECRET 

evidence." Maj. Op. at 38. Not so. The district court expressly 

considered virtually all the evidence this court points to--

including every single item of evidence the government 

claims is of . relevance. Lo,mn.are 

id. at 

compare aJ. . at s 

from Kabul and sUbsewent seizure by Pakistani 

authorities), with Latif, slip op. at , 25, 27 (discussing 

same); compare Maj. Op. at 50-52 evidence that Latif's 

benefactor, Ibrahim AI-Alawi, is in fact the Al Qaida 

facilitator Abu Khalud), with Latif, slip op. at 17-21, 23-28 

(discussing same). As for the claim that Latif may have (or 

may not have) traveled across the Pakistani border with 

Taliban-affiliated the district court's silence is 

To determine, as this court apparently does, that an 

experienced district court judge has totally ignored relevant 

evidence and so committed legal error because his twentyseven page opinion omits mention of a handful of tertiary 

items plucked from thousands of pages of record evidence not 
SECRET 44 SECRET 

only ignores the presumption of district court lawfulness, but 

also imposes on that court a virtually impossible burden. As 

the First Circuit put it, "[t]he district court could have written 

a 200-page decision on this case, but the far more compact 

assessment it made was entirely adequate under Rule 52(a)." 

Addamax Corp. v. Open Software Foundation, Inc., 152 F.3d 

48, 55 (lst Cir. 1998) ("[T]he district court was not required 

to make findings on every detail, was not required to discuss 

all of the evidence that supports each of the findings made, 

and was not required to respond individually to each 

evidentiary or factual contention made by the losing side."). 

See also Schilling v. Schwitzer-Cummins Co., 142 F.2d 82, 84 

(D.C. Cir. 1944) ("While counsel may be disappointed that 

findings do not discuss propositions sincerely contended for, 

that, alone, does not make them inadequate or suggest that 

such propositions were not understood by the court. "); 

Medtronic, Inc. v. Daig Corp., 789 F.2d 903, 906 (Fed Cir. 

1986) ("We presume that a factfinder reviews all the evidence 

presented unless he explicitly expresses otherwise."); cf 

Puerto Rico Maritime Shipping Authority v. Federal Maritime 

Comm 'n, 678 F.2d 327, 351 (D.C. Cir. 1982) ("It is frivolous 

to contend that the Commission did not consider the evidence 

because it did not catalogue every jot and tittle of testimony. 

Nothing is gained by a laundry-list recital of all evidence on 

the record supporting each view on every issue."). 

The district court's opinion is by no means perfect. But 

clear error review demands a good deal less than perfection. 

See Microsoft, 253 F.3d at 118. That said, had the district 

court otherwise committed legal error or made some other 

mistake requiring remand, then I would have asked it to 

clarify whether it had indeed considered this evidence 

holistically. See, e.g., Salahi, 625 F.3d at 753 (noting that "the 

district court generally" considered all the evidence together 

but that "its consideration of certain pieces of evidence may 
SECRET 45 SECRET 

have been unduly atomized" and that "since we [ were] 

remanding" we would encourage the district court to clarify 

(emphasis added)). But nothing in our case law requires, nor 

would I now hold, that the mere fact that a district court that 

obviously and carefully considered the entire record failed to 

mention a couple items of tertiary importance reflects undue 

atomization of the evidence. 

III. 

For the foregoing reasons, I would affirm the grant of the 

writ of habeas corpus.