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## ~nitco**~tatcs** 

# ([ourt of**~ppcaIs** FORTHE DISTRICTOF COLUMBIA CIRCUIT

ArguedMarch 15, 2011 Decided October 14, 2011

No. 10-5319

ADNANFARHANABDULLATIF,DETAINEE, CAMPDELTA, ET AL., APPELLEES

v.

BARACKOBAMA, PRESIDENTOFTHEUNITED STATES, ETAL., ApPELLANTS

Appeal from the United States DistrictCourt forthe DistrictofColumbia (No.1:04-cv-01254)

AugustE. Flentje, Attorney, U.S. Department ofJustice, argued the cause for appellants. With him on the briefs were Ian Heath Gershengorn, Deputy Assistant Attorney General, andRobertM Loeb, Attorney.

Philip A. Scarborough argued the cause for appellees. On the briefwere S. William Livingston, RogerA. Ford, and DavidH Remes. BrianE. Fosterentered an appearance.

Before: HENDERSON, TATEL and BROWN, CircuitJudges.

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Opinion for the Court filed by CircuitJudge BROWN.
Concurring opinionfiled by CircuitJudge HENDERSON.
Dissentingopinion filed by CircuitJudge TATEL.

BROWN, Circuit Judge: The United States appeals the district court's grant ofthe writ ofhabeas 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 ofregUlarity. Second, the district court failed to determine Latifs 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 canevaluateLatifs 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 hisjourney. Latifsays 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 Latifcaught up to Ibrahim at the institute, Ibrahim had to leave again and told Latifto wait for him there until they could travel together to Pakistan. After waiting in vain for several weeks, Latifsays, he then returned to Pakistan without Ibrahim, fleeing U.S.- supported forces he had been told were advancing from northernAfghanistan.

The district court granted Latifs habeas petition following briefmg and a hearing in which Latifdeclined 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 ofhabeas 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, withoutdeciding, thatthe districtcourtwas correctto holdthe 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 ofthe showing required ofthe Government in these cases is amatterto 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 mustput forth credible facts demonstratingthatthepetitionermeets 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 ofthe Government's evidence with the "detainee's facts and explanation," bearing in mind that the ultimate burden is on the Government to establish Latifs 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 Reportis entitledto such apresumption.

A

"The presumption ofregularity supports the official acts ofpublic officers and, in the absence ofclear 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). Thepresumption applies to government-produced documents no less than to other official acts. SeeRiggsNat'l Corp. v. Comm'r, 295 FJd 16,21 (D.C. Cir. 2002) (holding that "an official tax receipt" ofa foreign government "is entitled to a presumption ofregUlarity"). 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 heavilyredacted for national security purposes.SECRET 7 SECRET

VVJLVU.J.1.3 Latifcites are typical the rule he proposes ect to the he-saidlshe-said balancing ofordinary evidence. It is impossible to cure the conditions under which these documents were created, so Latifs 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 entitledto apresumption ofregularity, and secondthatneither internal flaws nor external record evidence rebuts that presumption inthis 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 ofthe Government's evidence in this case "inappropriately shift[s] the burden" ofprooffrom the Government to the detainee. Dissenting Op. at 30. A Supreme Courtplurality saidjustthe opposite, however-and in a case involving the military detention of an American citizen, no less: [T]he Constitution would notbe offended by a presumption in favor of the Government's evidence, so long as that presumption remained arebuttable 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 oftheirdetention,Boumediene, 553 U.S. at 779, yet it left unaddressed the content ofthe 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 ownjudge,1the Courtleftthe scope ofthehabeas right to the common-law-like process in which we have been engaged ever since: "[T]he Suspension Clause does notresist 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. at795.

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 ofthe Government's evidence againstthe detainee," id.; (2) "to admit and consider relevant exculpatory evidence," id.; (3) "tomake a determination in light ofthe 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: GuantanamoHabeas Cases asLawmaking, 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 courthas not applied apresumption ofaccuracy.

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 ofbusiness should be afforded apresumption ofauthenticity," Dist. Ct. DocketNo. 606, but the court rejected the government'srequest 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 ofthe 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 ofmuch ofthe factual material contained in the [Government's] exhibits [was] hotly contested," id., quoted in AlMutairi, 644 F. Supp. 2d at 84, and the evidentiarydispute inAhmedinvolved 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 notrequire acourtto acceptthe truth ofanongovernment 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 itselfincredible. A source may be shown to have lied, for example, orhe mayprove his statement was coerced. The presumption ofregularity-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 whatitis offeredto prove.

Another reason the district court has denied the Government's motions for apresumption ofaccuracy 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 ofthe evidence, or they claim that the Government's information is unreliable because it resulted from harsh interrogation techniques, multiple levels of hearsay, orunknown sources.

This case presents a different question because Latifs sole is to the accuracy of the Government's

.When the detainee's challenge is to process itself, should apresumption ofregularity apply to the official government document that results

### ?Wethinkthe answeris yes.

To forbid a presumption of regularity in spite of Boumediene's implicitinvitation 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); seeAI-Bihani, 590 F.3d at 878. And after a state court conviction becomes final, it is subject to a "presumption ofregularity," such that "[i]fthat 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 enhancementofa 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 ofpowers justifies a presumption in favor ofofficial Executive branch records in Guantanamo habeas proceedings. The district court is uniquely qualified to determine the credibility ofhearsay, and the presumption ofregularity 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. Forthat, itis appropriate to deferto Executivebranch 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-appliesin 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 ofthe [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 UnitedStates 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); UnitedStates 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 ofterrorism, proper deference must be accorded to the political branches."). Both the Constitution and cOmn1on sense supportjudicial modesty when assessing the Executive's authority to detain prisoners during wartime, for it is an area in whichthejUdiciaryhas the leastcompetence andthe smallest constitutional footprint.

Our dissenting colleague concludes the presumption of regularity should not extend to official intelligence reports because he imagines the presumption ofregularity 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, andbecausehe thinks weknowrelatively 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 thatresult from processes that are anything but "transparent," "accessible," and "familiar." The presumption ofregularity 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 ofstate 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 whoserecords we also presumeto bereliable, and wehaveno

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reason to suspect such documents are fundamentally unreliable.3

Ratherthan cast doubt on the viability ofthepresumption of regularity in this context, our only pertinent postBoumediene discussion ofthe presumption strongly suggests its continuing viability. InAl-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 ofAI-Bihani's multifaceted procedural argument-it included attacks on the standard of review, the denial ofafull-blown evidentiaryhearing, alleged burden-shifting, and the district court's discovery orders-we said that his "argument clearly demonstrate[ d] [his own] error" and thatBoumediene's holding hadplacedit 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 ofthe accuracy ofthe 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 thatthe Courtfinds credible and certain classified documents" without entertaining the possibility that the detainee's statements had been mis-reported.AlBihaniv. 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 ofevidence 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 (DTA), our opinion in Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008), also lends support to the continuing viability ofsuch 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 ofunsupported "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]fa 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 ofsuch 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 viewthat intelligence documents like the Report in this case are undeserving of a presumption ofregularity. Dissenting Op. at 10-12 (citing Barhoumi, 609 F.3d 416, Bensayah, 610 F.3d 718, AlAlwi 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 ofthese
cases, and none ofthem 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 Briefof 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 askus 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 ofadmissibility, 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 ofaccuracy 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 ofan 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 discussedin afederal decision, the decision does not stand for the proposition that no defect existed. The Court would risk

error ifit 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 ofthe Chapman ['harmless beyond a reasonable doubt'] standard on habeas, we are free to address the issue

onthe merits.").

For the same reason, we cannot extractfrom Bensayah, AlAlwi, or Khan the dissent's proposed bar on evidentiary presumptions for intelligence reports. As in Barhoumi, the Government did not request a presumption ofregularity in any ofthese appeals. See BriefofRespondents-Appellees at 38-39, Bensayah, 610 F.3d 718 (No. 08-5537); Brief of Respondents-Appellees at 34--38, AlAlwi,

- F.3d

- (No. 09-5125); BriefofRespondents-Appellees at45-58,Khan,

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- (No. 10-5306). Thus, the court appropriately refrained from addressing the viability ofsuch a presumption in each ofthose cases. See Rumber v. District ofColumbia, 595 F.3d 1298, 1302 (D.C. Cir. 2010) ("[W]e follow our usual practice ofdeclining to reverse the district court based

on arguments that the appellant did notraise."); UnitedStates

v. Vizcaino, 202 F.3d 345, 348 (D.C. Cir. 2000) ("Because [the defendant] failed to preserve the argument for appeal, we review

...atmostforplain error." (emphasis added)). Absent relevant arguments, none of these cases can be read to foreclose a presumption of regUlarity for government documents in general orintelligencereports inparticular.

Apart from its precedential argument, the dissent frets that "in practice" the presumption ofregularity 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 ofregularity, ifnotrebutted, onlypermits a court to conclude that the statements in a government record were actually

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made; it says nothing about whetherthose 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 govemlnentrecordto supporthis 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 hemadeto his interrogators")-he can benefit from the presumption as well. Finally, the presumption likely will never playa larger role in the resolution ofa case than it does here (because the reliability ofthe Report is the central dispute), and even here, the presumptionis notdispositive.

A body ofjudge-made law is not born fully formed, like Athena from the head ofZeus. Itgrows gradually, developing little by little in response to the facts and circumstances of each new case. Until now, we have nothad 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, andbecausethe Governmentpersists in its request for

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

4 The Government's argument for a presumption ofregularity is unambiguous. Observing that "[i]tis well establishedthatthere is

a strong 'presumption of regularity' for actions of government officials taken inthe course oftheir official duties," Appellants' Br. 30 (quoting UnitedStates v. ChemicalFound., 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" ofthe alien's statement. Id. at 30-31 (quotingEspinoza v.

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Guantanamo habeas proceedings a rebuttable presumption of regularity applies to official government records, including intelligencereports like the one atissue here.

B

Because the Report is entitled to a presumption of regularity, and because the Report, if reliable, proves the lawfulness of Latifs detention, we can only uphold the district court's grant of habeas if Latif has rebutted the Government's evidence withmore " evidence ofhis

own.5 Viewed together, both

_ and the other

### ~to meetthis burden.

INS, 45 F.3d 308, 311 (9th Cir. 1995)). The dissent's claimthat 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 ofregularity. Depending

on the circumstances, courts have required litigants to meet standards ranging from "clear and specific evidence," Riggs Nat 'I, 295 F.3d at21 (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 & RecordsAdmin. v. Favish, 541 U.S. 157, 174 (2004))). Even ifwe
assume a detainee may overcome the presumption by a mere preponderance ofthe evidence, Latifcannotmeetthat standard.

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we
hn'iliTP"'i3r, an report involves just one level hearsay-that ofthe 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 oftranslation "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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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 ofthe 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 whetherhis 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 Latifs 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 ofregularity 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 herbed 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 ofSECRET 32 SECRET

plausibility. SeeLatif, 2010 U.S. Dist. LEXIS 83596, slip op. at 26.**La~if**makes two main arguments in defense ofthe 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 argumenthas merit.

A

Theclosestthe district court's opinioncomesto making a credibility determination is in its statements that Latif's story

was "plausible" and "notincredible."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.3d400,406 (D.C. Cir. 2011) ("Uthman's account

... involves many coincidences that are perhaps possible, but not likely."). Ajudgment about credibility, by contrast, measures the truthfulness of the speaker or the likelihood.that what he says is true. See RICHARD HOOKER, THELAWS 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 oftruth which they have in themselves."). Thus, neither ofthe district court's statements is equivalentto

a finding that Latif's declaration is more likelytrue than false. Onthis, we are all agreed. SeeDissenting Op. at30.

By definition, a "plausible" statement is one "seeming reasonable, probable, or truthful"; it may in reality have only "a false appearance ofreason 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."). Itis when a detainee tells a plausible story that an evaluation of his credibility is most needed. There may be several plausible explanations for Latifsitinerary; it is the district court'sjobto decide whether the Government's explanation is more likelythannot. SeeAlAdahi, 613 F.3d at 1110 ("Valid empirical proofrequires not merely the establishment of possibility, but an estimate of probability." (quoting DAVIDHACKETTFISCHER, HISTORIANS' FALLACIES: TOWARD ALOGIC OF HISTORICAL THOUGHT 53 (1970))).

Likewise, to say Latifs 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 UnitedStates 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 creditevidencethatis "notincredible" as amatteroflaw.

Other statements in the district court's opinion confirm that it did not reach a decision on Latifs credibility. For example, the courtrejectedthe Government's "contentionthat Latifmustbe lying,"Latif, 2010U.S. Dist. LEXIS 83596, slip op. at 27 (emphasis added), while assiduously avoiding any determination that Latifwas not lying. The court speculatedSECRET 34 SECRET

more than once that the inconsistencies in his statements "may be the result of a misstatement or a mistranslation," without evermaking a finding to that effect. Id., slip op. at 27 (emphasis added); id. ("The smaller inconsistencies

... may beno more than misstatements ormistranslations." (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 Latifs "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 Latifs story and insteadnotedthe story's "inconsistencies and unanswered questions."Id., slip op. at27.

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 ofthe 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 Latifs the court ted its

re on basis forrejecting_SECRET 

### 35 SECRET

### SECRET 36 

### SECRET

story "plausible," not credible, the court merely established the possibility, not the probability, that Latifs story was true. And without a "comparativejudgment about the evidence," there is no finding offact 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 Latifs story. In other words, the district court took on the role ofa reviewing court, assuming in effect that Latifalready had been found credible and then applying a deferential standard ofreview to that imaginary finding. CfAwad, 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 ofan appellate standard ofreview. CfAnderson v. UnitedStates, 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.

### SECRET 37 

### SECRET

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 ofan appeal is to review thejudgment ofthe 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 consistentwiththis 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 ofLatirscredibility. IfLatifagain declines an opportunityto 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, seeMitchell 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'sBr. 52. This neglects the crucial point that the rule for criminal cases is based on the FifthAmendmentprivilege against self-incrimination. See Mitchell, 526 U.S. at 316. That privilege has no application outside the criminal context, and a Guantanamo habeas

### SECRET 38 

### SECRET
petitioneris not entitled to the same constitutional safeguards

as a criminal defendant. Cf Al-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 credibilitydetermination. 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 offact are clearly erroneous in themselves. See Al-Adahi, 613 F.3d at 1111 ("[T]he district court clearly erred in its treatment ofthe 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 conclusionthrough a series oflegal errors."). UnderAl-Adahi,

a detainee is not entitled to habeas just because no single piece ofevidence is sufficientbyitselftojustifyhis detention. 613 F.3d at 1105-06. It follows that a habeas court may not ignore relevant evidence, for a court cannot view collectively evidencethat ithas not even considered.

12 On appeal, Latifretorts 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 himselfto cross examinationthereforeundermines his credibility.

### SECRET 39 

### SECRET

Perhaps because it had already denied the Government's key evidence a presumption ofregularity, 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 ofhabeas because the courthad 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. Althoughwe do notreach anultimate conclusion on the merits in this case, the district court's similartreatment ofthe evidence in this case provides an alternative basis forremand.

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 Latifadmits traveling, and (c) contradICtIons in Latif's exculpatory statements. In

",,,.n"T,·r
, ... the district court

. declined to consider

1".."T ••

r·1 court ofweighing this evidence in

A

story so hard to swallow is t its**nA~**...aC''''''A,...,rI,a...,,'a

### SECRET 40 

### SECRETSECRET 41 SECRET

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 ofal Qaeda." Uthman, 637 F.3d at405 (citingAlOdah, 611 F.3dat 16). At Guantanamo,

more than a year after his capture, Latiftold 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 himbytaxi to Kabul, where Latifsaidhe 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 AlthoughLatifsmore recent declaration in the district court leaves out some ofthese details, he does not denytaking 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 Kabulbefore returning to Pakistan.

### SECRET 42 

### SECRET

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 tojoin the Taliban"). The record in this

case is replete with interrogation summaries ofother Yemeni detainees who followed the same route to Afghanistan. Instead of focusing on Latifs 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 ofLatifs 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 considerit 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 countryroad." Dissenting Gp. at 35. The court didnotconsiderit at all.

### SECRET 43 

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contradictions in isolation from the rest ofthe evidence and overlookedothers 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 ifsome details ofLatif'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-ofguilt." AI-Adahi, 613 F.3d at 1107. Thus, even ifa given inconsistency in a detainee's story does not go to the central question ofhis involvementwiththe Taliban or alQaida, itmaybe relevantnonetheless to the court's evaluation ofhis credibility, which in turn bears .on the reliability ofthe 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 ofthe simplest in human experience,'" that "when a litigating party resorts to 'falsehoods or other fraud' in trying to establish aposition, the courtmay 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, buthis own medical records reveal that he was released just five days after admission. The court· made no explicit finding about the

source ofthis inconsistency, and itfailed to mentionthatLatif 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 ofLatifsrecent declaration.

The court failed even to mention other incongruities among the stories Latifhas told his interrogators. Latifhas said that he stayed with a doctor in Kabul, but also that he stayed in areligious study centerthere; thatLatifwas 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 ofthe government's case against [the detainee] and that the district court clearly erred in tossingthem aside."AI-Adahi, 613 F.3d at 1110.

D

### SECRET 

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16 We do not ''find[J'' that this evidence "do[es] in fact implicate" Latif, as the dissent accuses us ofdoing. 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.

### SECRET 47 

### SECRET

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 ofabattlebetween al-Qaida and the United States. Id. Analogous details in the circumstances of Latifs capture should have been weighed in combination with the rest ofthe 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 Latifs 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. at27 (emphasis added). This is exactlythe formulation we criticizedinAI-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 ofshowing that he was a part' of al-Qaida." 613 F.3d at 1105 (emphasis added). We cited that statement as an example ofthe court's

### SECRET 48 

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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 Latifs capture are sufficient by themselves to prove he was part of the Taliban, but whether, in combination with the rest ofthe evidence, theymakethatconclusionmore likelythannot.

### SECRET 49 

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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 maynotbe very helpful since, for all weknow, his route was frequented by non-combatants too. Dissenting Op. at 33-35. This bold speculation is beyond ourpurview as

an appellate court, andthe district court did not suggestithad

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 situateddetainees' altogether.

F

To summarize, in addition to viewing Latif's own statements inisolation, 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 forjust five instead of three months as he now claims'

a court's opinion that any ofthese facts infonned its conclusion about the Government's evidence. In light ofour application ofthe presumption ofregularity, there canbeno question onremand

### SECRET 50 

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but that all of this evidence must be considered-and consideredas a whole.

The dissent makes much ofthe fact that, contrary to the usual practice, we do not assume the court considered all the evidence it failed to mention. Dissenting Op. at43-44. Ifthat is true, the result flows from the unusual posture ofthis case. Eveninthe typical he-saidlshe-said case-inwhichtwo people provide conflicting statements-the courtmust conduct a close and precise balancing ofthe evidence to reach a valid result. In detainee cases the difficulties areheightened because it is a he-saidlhe-said case-the same person provides both the incriminating and exculpatory statements. Thus theAlAdahi formulationbecomes 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 theirtravel along the sameroute Latiftook
to Afghanistan, lived in Kandahar as Latifs 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 Latifmade

_ Latifmakes much of the fact

### tha~t name fromSECRET 51 SECRET

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 easilyresult from a translation ortranscription error. 18 Itdoes not negate altogether the probative value ofthis linkbetween Latifs current and a known recruiter

was a person withouteverfinding thatto 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 conditionedupon 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 interpretationwhen the courthas ignoredrelated evidence.

On remand, the district court has an opportunity to evaluate all the evidence as a whole. In the event ofanother 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 ofanother 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 

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11696, at *23. Inits currentposture, this case does notrequire

us to answerthat difficult question. 19



## v

Although the district court committed the same errors here as inAI-Adahi, the evidence before us presents a closer question than we faced in that case and our subsequent reversals. CfAlmerfedi,

- F.3d -, 2011 U.S. App. LEXIS 11696; Uthman, 637 F.3d at400. Andthe Government s it has discovered new evidence

_ that neither the rllC'TM'"'T occaSlOnto consider.

As the dissenters warned and as the amount ofink 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 ofwar, guaranteeing thatthebenefit ofintelligence thatmight be gained-even from high-value detainees-is outweighed by the systemic cost ofdefending 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 (quotingPullman-Standardv. United Steel Workers ofAm., 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." AlAlwi, 2011 U.S. App. LEXIS 14991, at *9. This is such acase.

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expressed sensitivity to such concerns, it did not find them "dispositive." Id. at 769. Boumediene's logic is compelling: take no prisoners. Pointtaken.

In light ofthe 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 ofhabeas 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 ofguilt, and that in the absence ofother clear evidence a detainee's self-serving
account must be credible-notjust plausible-to overcome presumptivelyreliable government evidence.

So ordered.

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KARENLECRAFTHENDERSON, CircuitJudge, concurringinthe judgment: AlthoughIagreewithJudgeBrown'sanalysisandtherefore

concurinthejudgmentofremand,Iwrite separatelyto respond
to the dissent and to explainthat, in myview, thebettercourse would be to simply reverse the district court's grant ofhabeas corpus reliefto 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] awholesalerevisionof thedistrictcourt'scareful fact findings," and "suggest[ing] [our] own story," Dissenting Op. at2, 32; seeid. at32-39.As discussedbelow,however, the dissentmisunderstandstheclearerrorstandardofreviewandits applicationto this case. The dissent also claims that ouruse of thepresumptionofregularity"movesthe goalposts"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 understandhow the presumption of regularityinfactaidsthereliabilityinquiryofhearsayevidence. Finally, I believe remand for further factfinding will be a pointless exercise. Assuminghe decides to testify, Latifcannot persuasively counterthepresumptionofregularity. Norcanhe overconle the long odds against his exculpatory narrative by testifying, as his'declaration already tells his story and any embroidery thereofwill only work againsthim. Accordingly, I

concurinthe remandjudgmentonly.

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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?SeeAbdahv. Obama(Latif), 

### No. 04-1254,2010WL 3270761, at *9, slip op. at 25 (D.D.C. July 21, 2010). "The questionwhetherevidenceis sufficientlyreliableto creditisone
wereviewforclearerror,"AlAlwiv. Obama,

--- 

### F.3d----, 2011 WL2937134, at *6 (D.C. Cir. July22,2011),andordinarilythis standard ofreview 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, 

### 470U.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 errorhere, relying on ourprecedentthat "[w]here there are two permissible views ofthe evidence, the factfinder's choicebetweenthem cannotbe clearlyerroneous," 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 ofresolving discrepancies among the various accounts offered into evidence is quintessentially a matter

... for the district court sitting as the fact-finder,"Al-Madhwaniv. Obama, 

### 642 F.3d 1071, 1076 (D.C. Cir. 2011) (internal quotations omitted). See 

### Dissenting Op. at 20, 31. But the dissentapparentlyforgetsthatthequotedpassagesdescribeonly the starting point for clear error review. Granted, the district court has wide latitude to resolve factual disputes-but only withincertainbounds.Wemustassureourselvesthatthedistrict court's finding is "permissible" or "plausible in light ofthe 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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### SECRET

within the range of"permissible" inferences to be drawn from the evidence, concluded that the district court had not clearly erred. SeeAwad, 608 F.3d at 6-9;AI-Madhwani, 642 F.3d at 1076. But in both Awad and AI-Madhwani, unlike here, the districtcourt'spermissibleinferences werebasedontherecord in its entirety-not on the view that one side's evidence, standing inisolation, isplausible.

Thedissentseemsto suggestthatifLatifsstory"onitsown terms[] is not 'intrinsic[allyJ implausible,' " then we cannot review the district court's evaluation ofthe government's key pieceofevidenceorotherpiecesofevidence. DissentingOp. at 30,32.Itisnotenough,however,forthedistrictcourttobaseits factual findings onsomeevidenceintherecord. Theclearerror 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); seealso Easleyv. Cromartie, 532 U.S. 234, 257 (2001) (finding clear error even where "record contains a modicum ofevidence offering support for the District Court's conclusion"). Where the record contains conflicting evidence, then, theclearerrorstandardrequiresus, as thereviewingcourt, to assess the comparative weight ofthe evidence both for and against the district court's finding. Itmay 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 significantevidentiaryweight,"testimonydidnotprovide"more thanminimalsupport"andotherevidencedidnot "significantly strengthen" district court's finding). Or the evidence may be outweighed by other, more persuasive evidence. See, e.g., Anderson,470U.S. at575 (credibilityfindingclearlyerroneous if"[dJocumentsorobjectiveevidence

...contradictthewitness' story"); 

## us. Gypsum Co., 333 U.S. at 396 (clear error

### SECRET 4 

### SECRET

"[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 Latifs version both minimally probative,MajorityOp. at45-46,anddecisivelyoutweighedby the government's evidence, id. 

### at 20-31-with a "wholesale revisionofthe districtcourt'scareful 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 agovernmentrecord, see

### Majority Op. at 6-20. Atthe sametime,thedistrictcourtgaveundueemphasisbothto

### SECRET 5 

### SECRET

andtoLatifs"plausible"

......"

...,

.........,,,..veexp tra ,Latif,2010WL3270761,
at *9, slip op. at 26. The second error is especially glaring not only in light ofthe district court's failure to make any finding regarding Latifscredibility,see AI-Adahiv. Obama, 613 F.3d 1102, 1110 (D.C. Cir. 2010) (by "sp[eaking] onlyofapossible 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 courtfailed
tomakeany "comparativejudgmentabouttheevidence [that] is
at the heart ofthe preponderance standard ofproof' (internal quotations omitted)), cert. denied, 131 S. Ct. 1001 (2011), but also in light ofthe inconsistencies between Latifs 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 awhole,"Awad, 608 F.3dat7, I, likeJudgeBrown,cannothelpbutconcludethatthe districtcourt's finding regarding the unreliability

### o~ coupled with its finding regarding the mere

### plau~

### SECRET 6 

### SECRET

Latifs story is neither "permissible" nor "plausible in light of the recordviewedinits entirety,"Anderson,470 U.S. at 574.



### II.
Thedissent also assertsthatapplicationofthepresumption ofregularity

# to_

"disturbs"the "carefulandconscious balance ofthe Important interests at stake" we have struck in pastdetaineedecisionsforadmittingandassessingthereliability of hearsay evidence. Dissenting Op. at 12. Judge Brown thoroughly disposes ofthe assertion-laying outindetail that, while we have not heretofore enunciated the presumption of regularity, wehave all butdone 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 hearsayevidenceindetaineecases. DissentingOp. at 13. Tothe contrary,soundevidentiaryconsiderationswarrantincorporating 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, includingthepointthatthe facts supportingthepresumptionof regularityhave significantprobativeforce intheirownright, as discussedbelow.
Moreover, ourholding does nothingto disturb the existing frameworkforhearsayevidence.Allhearsayevidence"mustbe accordedweightonlyinproportionto itsreliability."Barhoumi

v. Obama,609F.3d416,427 (D.C. Cir. 2010).Thedistrictcourt

assessesreliabilityinthefirstinstance,seeParhatv. Gates, 532 F.3d 834, 847-48 (D.C. Cir. 2008), and in so doing must considerwhatever "indicia ofreliability" the hearsay evidence manifests as wellas any" 'additionalinformation' "bearingon the question ofreliability. Bensayah v. Obama, 610 F.3d 718,

### SECRET 7 

### SECRET

725-26(D.C.Cir. 2010)(quotingParhat,532F.3dat849).3The districtcourtconsidersawiderangeoff actors-recognizingthat anyone ofseveral "hearsay dangers" mightrender thehearsay unreliable, see Williamson v. UnitedStates, 512 U.S. 594, 598 (1994) ("The declarant might be lying; he might have misperceivedthe events whichherelates; he mighthave faulty memory; his words might be misunderstood or taken out of context by the listener."). Information "relayed through an

3Parhat 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 substanceofhearsay evidence: "theproblemwith the intelligence reports at issue in Parhat was that they failed to provide 'any ofthe underlying reporting upon which the documents' bottom-line assertions are founded,' thus inhibiting our ability to evaluate the reliability ofthose assertions." 609 F.3d at428 uot' Parhat, 532 F.3dat 846-47)).

### SECRET 8 

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interrogator'saccount"presentsanadditional"levelof technical hearsaybecausethe interrogatoris a thirdpartyunavailablefor

cross examination."AI-Bihani v. Obama, 590 F.3d 866, 879 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 1814 (2011). The presumptionofregularity doesnotcomeinto playwithrespect to many aspects ofhearsay, however; for example, it does not vouch for assertions made about a detaineebyathirdpartynor does it answer the reliability inquiry ifthe detainee claims he

was coerced in making admissions. Rather, the presumption touches on only one dimension ofreliability: "itpresumes 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 transcribedandreported[thewitness's]story"but"complaining witness'[s] description of the crime, recorded by the police officer inhis report,

. . . does not deserve the presumption of regularity").

TheFederalRules ofEvidence,whichcarveoutexceptions
to the general rule against hearsay on the ground that "some kinds ofout-of-court statements are less subjectto

...hearsay dangers," Williamson, 512 U.S. at 598, make certain public records admissible,using "the assumptionthat apublic official willperformhis dutyproperly"aswellas "thereliabilityfactors underlyingrecords ofregularlyconductedactivitiesgenerally." Fed. R. Evid. 803(8) advisory committee's notes (1972 ProposedRules). Granted,indetaineehabeascases,theRulesdo
notdecidetheadmissibilityofhearsayevidence.Barhoumi,609 F.3dat422(rejectingas "countertothiscourt'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"). Butbecausethepresumptionofregularityis based

onmuchthe samerationale as thepublicrecords 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 ofdue delivery ofthe mail and presumption of regularity in government agency's handling thereof "have a
commonorigininregularityofaction"),thefacts supportingthe presumption ofregularity carry significant probative force in their own right.4 SeeLegille, 544 F.2d at 9 ("The facts giving rise to the presumption [ofprocedural 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);Stonev. 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 ofprobativevalue to whichitis entitled, entirely apart from anypresumption;justas is true ofany 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 ofregularity, it is prop lied here because

### SECRET 10 

### SECRET**~.D.C.** 2011) ("The fact that

_

_ were prepared by government agents In thecourseoftheirnormalintelligencegatheringdutiesprovides

a degree ofsupport for their reliability."). The presumption of regularity thus embodies a common-sensejudgment about the general reliability of hearsay evidence memorialized in a governmentrecord. Andthe district court's failure to applythe presumption ofregularity is an error going to the heart ofthe "careful and fine-grained approach to the assessment of reliability," Dissenting Op. at 13, it is requiredto undertake.

Nor does the requirement that a challenger offer "clear or specificevidence"to defeatthepresumptionofregularity,

### Riggs Nat'l Corp. v. Comm'r, 295 F.3d 16, 21 (D.C. Cir. 2002), somehowshort-circuitthedistrictcourt'sreliabilityanalysis, as the dissent suggests. Dissenting Op. at 9-10. It is well established that clear error can occur ifa district court fails to credit otherwise reliable evidence on the basis ofinsignificant gaps therein. 

### See, e.g.,Almerfediv. Obama,

--- F.3d ----, 2011 WL 2277607, at *5 (D.C. Cir. June 10, 2011) ("district court clearly erred in regarding [hearsay evidence] as unreliable" becauseof"inconsequential""discrepancyindates").Requiring

a challenger to produce "clear or specific evidence"-that is, evidence with real probative force-to defeat the presumption ofregularity prevents a district court from relying on minor discrepancies to reject a governmentrecord. Atthe same time it disc s the kind of

.

### SECRET 11 

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### SECRET 12 

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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,Ialsobelieve

### reman~seforfurther factfindingwillbe awaste oftime andjudicialresources. Judge Brownbelieves remand-withthe possibility that Latifmight choose to testify-is necessary to allow the district court to correctly weighLatif's credibility. See Majority Op. at 36-38. While I agree that the district court erred in failing to assess Latif'scredibility,MajorityOp. at31-38-for"[a]tnopointdid thecourtmakeanyfindingaboutwhether [Latif'snarrative]was
more likely than the government's explanation," Al-Adahi v. Dbama,613 F.3dat 1110-1alsobelieveremandisunnecessary because "the record permits only one resolution ofthe factual issue,"Pullman-Standardv. UnitedSteel 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 thatproviding appellees a further opportunityto maketheir

... arguments inthe DistrictCourtcouldchange th[e] result").
TheapparentpremisebehindJudgeBrown'sargument forremandisthatLatifmightof Mer testimon socompellingthat it would shake ourconfidence andovercome any doubt about Latif's credibility. But w at testimony could possibly accomplish so much? IfLatifwere 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. "Credibilityinvolvesmorethandemeanor" and instead"apprehendstheover-allevaluationoftestimonyinlight ofitsrationalityorinternalconsistencyandthemannerinwhich

### SECRET 13 

### SECRET

ithangs togetherwith otherevidence." UnitedStates

### v. McCoy, 

### 242F.3d399,408n.15 (D.C.Cir.) (internalquotationsomitted),
cert. denied, 

### 534 U.S. 872 (2001); seealsoAnderson, 

### 470 U.S. at575 ("[F]actorsotherthandemeanorandinflectiongointothe decision whether or not to believe a witness. Documents or objective evidence may contradict the witness' story; or the storyitselfmaybe so internally inconsistent orimplausible on its face that areasonable factfinder wouldnotcreditit."). If, on the other hand, Latifwere to change his story once again on remand, the veryfactthathe "madeinconsistent statements

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

### v. Stover, 

### 329F.3d859,867-68(D.C. Cir.2003),cert. denied, 541 

### U.S. 1018 (2004). Latifs credibility would suffer even ifhe largelyrepeatedthe storyinhis declarationbut also decidedto embellishitwithadditionaldetai _-because" statements omIt



# := are inconsistent ifit would have been 'natural' for the witness to include them in the earlier statement." UnitedStates 

### v. Stock, 

### 948 F.2d 1299, 1301 (D.C. Cir. 1991). In short, Latifcould only dig himselfdeeper into a hole onremand.6 

### Becausethe recordcanreasonablybeviewed in only one way-that is, against him-I would not remand simply to give Latifa shovel but would instead conclude the litigation with the only result the evidence allows: that the governmenthas indeed "shownthatLatifis partofAl Qaedaor

6Indeed, even Latif's continuedfailure to testify would likely work against him. Majority Op. at 37-38; see Mitchell v. United States, 526U.S. 314, 328 (1999) (" '[T]heFifthAmendmentdoesnot forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.' " (quotingBaxter v. Palmigiano, 425 U.S. 308,318 (1976))).

### SECRET 14 

### SECRET

the Taliban." 

### Latif, 2010 WL 3270761, at *1, slip op. at 3.SECRET SECRET

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 ofreliability, 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] accuratelyreflects the incriminating facts in the [Report] are not**UV.l."~V'U..** and Latifhas 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 Almerfediv. 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 bythe 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

### SECRET 2 

### SECRET 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 Latifcould rebut that presumption. Maj. Op. at 11. In imposing this new presumption and then proceeding tofind that it has not been rebutted, the court denies Latifthe "meaningful opportunity" to contest the lawfulness of his detention guaranteed by Boumediene v. Bush, 553 U.S. 723, 779 (2008).
Compounding this error, the courtundertakes awholesale revision ofthe district court's careful fact fmdings. Flaws in the Report the district court found serious, this court now finds minor. Latifs 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 offacts, whether**bas~d** on oral or other evidence, must not be set asideunless clear,ly erroneous

....").

In Part I, I explain why the district court committed no
error in declining to apply a presumption ofregularity 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 ofthe writ ofhabeas corpus.

I.

All agree thatthis case turns onwhetherthe district court

### SECRET 3 

### SECRET correctly found that the government's key piece ofevidence, the Report, was unreliable. And all agree that the "question whether evidence is sufficiently reliable to credit is one we review for clear error."AlAlwi 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 requiredto afford the Report apresumption ofregularity.

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 (5thCir. 1985), that mail was duly handled and delivered, Legille v. Dann, 544 F.2d 1, 7n.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) (citingPacific States Box & Basket Co.

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

These cases-infact every case applying the presumption ofregularity-have.**~omething** in common: actions taken or documentsproduced within aprocess thatis generallyreliable 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 hardlyinfallible, butfor the mostpart

we have sufficient familiarity and experience with such institutions to allow us to comfortablyrely on documents they produce inthe ordinarycourse ofbusiness.

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 presumedthe accuracy ofa tax receipt from the Central Bank ofBrazil for purposes of claiming foreign tax credits under the Internal Revenue Code. See id. at 13 (citingRiggsNat'/ 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 at20 (citing Supreme Court cases). Butagain, this is because we have no reason to question or be concerned with the reliability ofsuchrecords.

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 courtdockets ortaxreceipts. Its output, a intelligence report,
was, in this court sown ared in stressful and chaotic conditions, filtered through interpreters, subject toSECRET 5 SECRET transcription errors, and heavilyredacted 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 employeehas accuratelyjotteddownminutes from a meeting.

To support its approach here, this court invokes presumptions ofregularity for state court fact-finding and for finaljudgments in criminal habeasproceedings. See id. at 12- 13. Aside from the abstract and uncontroversial proposition that courts should be sensitive to the separation ofpowers as well as to federalism, id. at 12, the analogymakes little sense. State courtjudgments and fact findings arise out ofa formal and public adversarial process where parties generally have attorneys to zealously guard their interests, and where neutral
state courtjudges, no less than"federaljudges,pledgeto 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. CfBoumediene, 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 previousjudicial review of the cause for detention. Notably, the black-letter rule that prisoners could not controvert facts in thejailer's return was not followed (or at least not with consistency) in such cases.").SECRET 6 SECRET

In its analysis, this court ignores akey 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, cfMaj. 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, neveruses the term "regularity,"

see United States v. Thomas, 934 F.2d 840 (7th Cir. 1991)- the court found that the probationreport "was ofthe type that generally carries a presumption of reliability," id. at 846 (emphasis added). A probation officernot 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 'manytimes,' " 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 areportproducedbya 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 courtnow does, ask onlywhether an official duty was regularlyperformed; rather, they examine the reliability ofthe 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 

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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 whetherthe output ofthatprocess is reliable. CfBismullah 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"). Ofcourse,
we may take some assurance from the fact that the Executive Branch acts in good faith when carrying out its duties. Butthe very point ofBoumediene is to ensure that detainees have a "meaningful opportunity" to subjectthe Executive's detention decisionsto scrutinyby an independentArticle 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 ofits output, we should refrain from categorically affording it presumptions one way or the other. This approach does not reflect "skeptic[ism]" or "cynic[ism]" aboutthe Executive Branch, Maj. Op. at 8-itis 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 ofhearsay evidence without implying bad faith or cynicism about the Executive (orwhoeveris attempting to presentthat 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 Guantanamoh,\beas cases-includingthe districtcourtherehave 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), vacatedon othergrounds, F.3d 720 (D.C. Cir. 2011);Ahmed

v. Obama, 613 F. Supp. 2d 51, 54-55 (D.D.C. 2009). Butsee, e.g., AlKandari 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 "thebasic fact thatpublic officials usually do their duty

...has

...that quality and quantity ofprobative 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 ofa 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 

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reliable, transparent, or accessible to warrant an automatic presumption ofregularity.

It is thus not at all surprising that our court has never before applied the presumption ofregularity 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 ofa diary allegedly authored by a member ofthat 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 ofthe diary available in its original Arabic or to provide information regarding the qualifications or motives ofthe 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 ofregularity 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-andexpected 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 exactlythe sameplaybook inBensayah 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 apresumption ofregularity on the grounds that it consisted ofgovernment 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 inAlAlwi even though the government's evidenc consisted of interrogation summaries allegedlyreportIng t epetitioners' 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 corroborationunless 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 ofregularity, 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 ofreliability, such as

### SECRET 12 

### SECRET photographs and items seized from petitioner's home, as well

as detailed government declarations explaining why the reports werereliable. Khan, 2011 WL 3890843, at *7-10.

Our approach inBarhoumi,AlAlwi,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 at427. 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 apresumption in place ofcareful 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 ofits evidence, including hearsay; given the heightened risk of error and unlawful detention introduced byrequiring 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 ourpractice deeplymisguided.SECRET 13 SECRET

To be clear, I make no claim that anything in Barhoumi, Bensayah, AlAlwi, Khan, or any of our other Guantanamo habeas cases affirmativelyrules outthepossibilityofapplying

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 ofreliability. 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 ofthe issues in this case. Wehave applied that approach to a (Bensayah, Al A and to

.

### ~

_ we (Barhoumi,AlAlwi,,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 ofhabeas corpus.

Moreover, thepresumption discards the unanimous, hardearned wisdom ofour districtjudges, who have applied their fact-finding expertise to a wide array ofgovernment hearsay evidence. In doing so, they have developed a uniquely valuable perspective that we ought not so quickly discard. Thesejudges, including the districtjudge in this case, have unanimously rejected motions to give government evidence a presumption ofaccuracy. See, e.g.,Alsabri, 764 F. Supp. 2d at 66 (noting "amplereason" to decline to presume the accuracy of the goverrn;nent's exhibits and explaining that circuit precedent supported its approach); AlKandari, 744 F. Supp. 2d at 19 ("Simply assuming the Government's evidence isSECRET 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 Courttopresumethatthe facts containedinthe 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 ofthe publicly available rulings on the issue have favored the government"), availableathttp://www.brookings.edu/papers/2011105_guant

anamo

_wittes.aspx. Ratherthan 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 "along, non exclusive list offactors

... such as: consistency or inconsistency with other evidence, conditions under which**tp~** exhibit and statements contained in it were obtained, accuracy ortranslation 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 ofthe 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 thatthose statements 'weremade under circumstances that render them intrinsically reliable or were madebyreliable**so~rces.'** " (citation omitted)).

Brushing aside these district court rulings, my colleagues think that those courts "may" have been denying a presumption ofaccuracy because they "[c]onfus[ed]" it for a presumption of truth,. Maj. Op. at 9, the difference being that the latterpresumes the content ofareport 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 oftruth or, for that matter, a single instance in which the government argued for a presumption oftruth rather than a presumption ofaccuracy. They citeAhmed, 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 (citingAhmed, 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 oftranslation and transcription," and notjust because ofalleged torture, as this court now implies. 613 F. Supp. 2d at 55; see alsoAlMutairi

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 alsoAlRabiah v. UnitedStates, 658 F. Supp. 2d 11, 18 (D.D.C. 2009) (noting "discrepan[cies]" between two reports summarizing the same interrogation that the governmenthadmade no attemptto reconcile);Al Odah v. UnitedStates, 648 F. Supp. 2d 1, 6 (D.D.C. 2009) (notingthat "interrogators and/or interpreters included incorrect dates in three separate reports that were submitted into evidencebased

### 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 mustunderstand the interpreter's recitation ofthe 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 ofwhat 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 ofthe reports necessarily raise concerns about their truth. But there are no grounds for assuming the district courts are confused about this distinction.

In support ofapresumption ofregularity, this courtrelies

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 mustpass 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 petitionermeets 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 otherwords, apresumption 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 byrelying 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, andParhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008) support the "continuing viability" ofapplying a presumption ofregularity 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 ofAI-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 aboutAl-Bihanion this issue is that we suggested-in dicta-that a district court couldapply

a presumption to a particular piece of evidence if appropriate-apowerthe district court in that case declinedto exercise. This is a far cry from the holding today-that all such reports and their underlying hearsay must be granted a presumption ofregularity. As to Parhat, a pre-Boumediene

case arising under the Detainee Treatment Act of2005, 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 courtto 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 ofhabeas corpus. See 553 U.S. at 792.

In sum, given how and where we typically apply the presumption ofregularity, 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 ofour district courts aboutthe reliability ofsuch 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," seeParhat, 532 F.3d at 849. In that world, it is hard to see what is left ofthe 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 ofregUlarity. Not content with moving the goal posts, the court calls the game in the government's favor. Instead ofremanding to give Latifan opportunity to rebut the presumption ofregularity, this appellate court engages in an essentially de novo review ofthe factual record, providing its

own interpretations, its own narratives, even its own arguments, see Maj. Op. at 20-52, andfinds that "neither internal flaws nor external record evidence rebuts that presumption in this case," id. at 7. ButseePullman-Standard

v. Swint, 456 U.S. 273, 292 (1982) (where district court fact "findings are infinn because ofan erroneous view ofthe 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 ofreliability turns entirely on witness credibility, inferences drawn from

errors and inconsistencies in the Report, and the resolution of conflicts in otherrecord evidence, see infra Part II. Given the court's conclusion that the presumptionhas not beenrebutted, remand may well be a "pointless exercise." Con. Op. at 1.

### SECRET 20


### II. 

### SECRET

Ratherthan adopting apresumption ofregularity, Iwould apply clear error review to the district court's findings offact justas we have consistentlydone 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 ofthe record viewed in its entirety, the court ofappeals 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 Latifs account of what happened only insofar as it needed to; and that it adequately addressed the otherrecord evidence.

A

The starting point, of course, is the Report itself. See Awad, 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, theSECRET 21 SECRET

in the Report are redacted, the district court was to evaluate the accuracy of inquiring into the accuracy ofthe 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 whichto confirm

"[F]actual errors" in the Report reinforced the district rt' Id S 'fi 11 lth h th R rt t t • !'

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### SECRET

Also troubling the district court was the lack of "corroborating evidence for any of the incriminating statements inthe

.at 26. As the district

The district courtproperly weighed the cumulative effect ofthese subsidiary findings. SeeAI-Adahi, 613 F.3d at 1105- 06.

. to the district those findin

"'.,"Ul.\J'U In an Incorrect
op.•

All ofthe concernsjust 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 ofevidence, ofcare 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 ofa known error increases the likelihood that other informationin the Reportis inaccurate as well. And ofcourse, 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
musttake [such an] absence ofcorroboration 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 ofthe subsidiaryfact findings the district courtmade about the Report itselfwere 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 ofthe '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 oftelephone. 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 hearsaypresented [to the CSRTs] about detainees with a game oftelephone" (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, giventhatthe Report contains other "factual errors," and given thatthe governmenthas 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 Awad, 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 ofappeals may not reverse it" (quotation omitted)). But see Maj. Op.

_ (conceding this explanation is "possible," yet

### incorrect~serting that "the relevant questionis whetherth[e] hypothesis is likely").

B

The district court did not stop with the Report. It also "consider[ed] the explanation ofevents Latifhas offered"- again in service ofthe critical question ofwhether the Report

was "sufficientlyreliable." Latif, slip op. at 27. According to

### SECRET 27 

### SECRET
Latif, with the help ofa 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 Latifs claim that he left Yemen in 2001 seeking medical treatment, it never disputes that "in 1994, [Latif] sustained head injuries as the result ofa
car accident and [that] the Yemeni government paid for him
to receive treatment" inJordan atthattime. 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 ofhearing" and that "a wide circular hol[e] was detected in [Latifs] left eardrum"). And the third-the most

. t-is Latifs 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]" Latifs "plausible" story. Id. at 26-27. The district court also rejected the government's contention that Latifs 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 believablethe petitioner's exculpatory account, the greaterthe

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 storypositively, 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 Reportis "not sufficientlyreliable."Latif, slip op. at 25.
Although agreeing that Latifs story is relevant, my colleagues nonetheless conclude that by describing it as "plausible" and "not incredible," the district court never actually creditedthat account. But "readingthe 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 Latifs story:

The Court makes this ruling [i.e., about the accuracy of the Report] having taken into consideration the explanation ofevents Latifhas offered. Latifs 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 Latifhad 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 ofwhich "does

### SECRET 29 

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not contradict Latifs version ofevents." Finally, the district court found the government's] other arguments attacking the credibility of Latifs story

... similarly unconvincing. The smaller inconsistencies to which [the government] ha[s] pointed may be no more than misstatements or mistranslations; even ifsome details ofLatifs story have changed over time, for whatever reason, its fundamentals haveremainedthe same.
Latif, slip op. at 27-28. What else couldthe districtcourthave
meant other than that it found Latifs 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 aparticularpiece ofevidence 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 ofdetention, and here the district court concluded that the government had failed to meet that burden because (1) "there is a serious 

# ii estion as to whether the [Report] accuratelyreflects_ " given (la) the circumstances under which 1t was pro uced and (lb) 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 injust 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 preponderanceSECRET 30 SECRET

of the evidence. To require otherwise would, in effect, inappropriately shifttheburden ofproofto Latif.

Given thatthe district courtfound Latifs story entitledto at least some weight and given that such a finding could properly guide its evaluation ofthe government's evidence, the onlyremaining question for us is whetherthatfinding 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 Latifneeded to leave Yemen for medical care in 1994, that Yemen's Ministry ofPublic Health recommended he do

so again in 1999, and that Latifhad medical papers with him when seized crossing into Pakistan. That a trip abroad for medical care hadbeennecessary, not once buttwice, makes it

more likely that Latifwould have needed to travel abroad for medical care in 2001 as well. And the fact that Latifs 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 Latifwould have had medical papers in his possession when first seizedis thathis trip in fact had amedicalpurpose.
Attempting to cast doubt on the district court's favorable
assessment of Latifs account, this court insists that the district court "toss[ed]

. . . aside" inconsistencies in Latifs account. [d. at 45; see also id. at 42-45. Butthe district court did no such thing. It expressly recognized those inconsistencies, Latif, slip op. at 24-25 (summarizing the alleged inconsistencies); id. at27 ("Latifs storyis not without inconsistencies and unanswered questions."), ultimately finding the government's "attack[ on] the credibility ofLatifs 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 Latifs 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 necessarymedicaltreatment; andhis 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 ofsmaller inconsistencies it is important to remember that they appear not in verbatim transcripts prepared by a court reporter with the aid ofan 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 ofresolving discrepancies among the various accounts offered into evidence is quintessentially a matter

. . . for the districtjudge sitting as the fact-finder." Al-Madhwani, 2011 WL 2083932, at *5 (internal quotationmarks omitted).

### SECRET 32 

### SECRET

Rather than applying clear error review to the district court'sresolution ofsuchdiscrepancies, this court suggests its

own story-a story not found by the district court, never argued bythe government, and based onits ownreview ofthe

raw evidence-abouthow

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, noteven for findings the court ofappeals may consider sub-par.").



## c

The government points to evidence that, itbelieves, 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 ofLatifs story.

### ~ailed to implicate Latiforprove the point the government hoped to make. As a reviewing court, ourjob is
to determine only whether those assessments were clearly

erroneous. Theywere not.

First, consider the circumstances leading up to Latifs seizure by Pakistani authorities-circumstances to which the district court gave less weight than the government would

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have liked. Latif left Kabul in November 2001 and then traveled through

_ before eventually arriving at the Pakistani border

### ~akistani authorities detained him. Accordingto the government, this pathmirrors that ofTaliban 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? Ifthis 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

casethat the defendant drove north from Miami along 1-95, "a known drug route." Familiar with 1-95, we would surely respond that many thousands ofnon-drug traffickers take that
route as well. Given what we know about ourown 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 "aknown drug route" would carrymore weight. The burden ofproofis 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.

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Based on nothing more than a few anecdotes, this court suggests that Latifs 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]" ofal Qaida membership in Uthman. Maj. Op. at 47. But how analogous are they really? Uthman was captured "in the vicinity ofTora 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 thatLatifevertraveled 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 Osamabin 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. at405. Here, Latiftold 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

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same route Latifreportedly 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

errorbyfailing to "factor[] [it] into [its] decision," Maj. Op. at 42.

Second, consider the government's argument that "Latif

wasrecruitedbyan al Qaedamember" in Yemen, a theorythe 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 Latifs charitable benefactor, Ibrahim Alawi, is actually an al Qaida facilitator known as Abu Khalud, whose real name is Ibrahim Ba'alawi. Some ofthis evidence could certainly have led a reasonable factfinder to acceptthe government's interpretation, including that "Ba'alawi" and "Alawi" have similar spellings and that the route Latiftook to Afghanistan at Ibrahim's urging was the samepathreportedlytakenbyother detainees who, unlike Latif, admit to having taken that trip to fight alongside the Taliban and some ofwhom 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 similarto the paths ofadmitted 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 particularpath 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 countryroad.

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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 eitherto "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 ofseveral other detainees, id. at 19 n.10 (citingAbdah 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 ofthis' 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.

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court also no s Innocent**V~~J"""'**.**.l""~.LV".l** not having his passport-thathe "gave it to Ibrahim to use in arranginghis stayat ahospital."Id.

record evidence supports the district court's

is. At the most basic level as the district court

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nonetheless accuses the district court of evidence that

court**VU'~"L~~U.V.L~~.'F.** the_

### itconclu~

Finally, the district court'sreliance on Latifs explanation for nothavinghis passport is plausible in light ofotherrecord 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 AlAlwi, 2011 WL 2937134, at *4,

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such a scenario is several inferential steps removed from the onlyrelevant fact we know about Latif-thathe 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 "twopermissible views ofthe 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 ofits criticisms about the district court's fact finding under the catch-all header ofAI-Adahi. Accordingto my colleagues, the district courttook an "unduly atomized" approach to the evidence. Maj. Op. at 39. The district court didno 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 oflegal error was quite obviously present in Al-Adahi, as the "fundamental mistake"

we identifiedin that district court's opinionmakes clear:

AI-Adahi's ties to bin Laden "cannot prove" he was part ofAI-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 apart of'al-Qaida.

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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 ofits analysis. The district court devoted two and ahalfpages to analyzing the Report and then another fifteen pages to summarizing otherevidenceintroducedbythe 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 thatwereviewedinAI-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 ofthe 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 AI-Madhwani, 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 resolvedtherelevantcontradictions betweenthe two reports is its bald assertion that those reports are reliable; the discrepancies are never mentioned, let alone analyzed. By

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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 courtthen specifically assessedthe 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 bythe.possibility that theyhad 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 approachto the evidence we called for inAI-Adahi."Maj. Op.
at 42-43. Butit is in fact more than that. Ifthe 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 thisjustified by the "unusual posture ofthis 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 eagerto deferto 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 andhow 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

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circumstances ofLatifs capture and to

_

_ The court makes

### m~

### ~er, the district court employed language similar to the language used at one point by the district court in AI-Adahi-specifically that "the timing of [Latifs] 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 ofa paragraph evaluating the credibility of Latifs account, which itself appears in the middle ofan extended assessment ofthe combinedimpact of multiple pieces ofevidence 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, inconsistentwith clearerrorreview. SeeBrockenborrugh, 575 F.3d at 741.

no convmcmg district court should have considered evidence that it found does not implicate Latif-unless, ofcourse, 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 ofthe crime. Ifthe factfinder concludes that the person the witness saw was not the defendant, then surely the factfinder canreasonably set aside the witnesses' testimonyin assessing whetherthe 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 whenevaluatingthe rest ofthe evidence.

The remainder of the court's Al Adahi critique rests entirely on the claim that the district court "ignore[d] relevant

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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 Latifmay 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 ofpages ofrecord evidence notSECRET 44 SECRET only ignores the presumption ofdistrict court lawfulness, but also imposes on that court a virtually impossible burden. As the First Circuitput 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 ofthe evidence that supports each ofthe findings made, and was not required to respond individually to each evidentiary or factual contention made by the losing side."). See also Schillingv. 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) ("Wepresume that a factfinder reviews all the evidence presented unless he explicitly expresses otherwise."); cf PuertoRicoMaritime ShippingAuthorityv. FederalMaritime Comm 'n, 678 F.2d 327, 351 (D.C. Cir. 1982) ("Itis frivolous to contend that the Commission did not consider the evidence because it did not catalogue everyjot and tittle oftestimony. Nothing is gained by a laundry-list recital ofall evidence on the record supporting eachview 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 ofcertain pieces ofevidence may

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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 oftertiary importance reflects undue atomization ofthe evidence.

III.

Forthe foregoing reasons, I would affirm the grant ofthe writ ofhabeas corpus.