A Circuit Supreme: How the D.C. Circuit Court is Using a Presumption of Regularity in Latif v. Obama to Make New Law and Ensure No Detainees Are Released from Guantanamo Bay

I. INTRODUCTIONEnter Adnan Farhan Abdul Latif,** a detainee currently held at Guantanamo Bay and ordered released by the United States District Court, District of Columbia (District Court).1 The Government charges "that Latif was a member of al Qaeda or Taliban forces."2 Conversely, Latif maintains he was traveling for medical reasons and was never part of the Taliban.3 The Government bases its opinion on a "heavily redacted" report titled [REDACTED] Report [REDACTED] (Report).4 The Report and the accuracy of the facts therein are at the heart of Latif's case.5 The District Court held that it was unable to "credit that information because there is a serious question as to whether [Redacted] accurately reflects [Redacted] the incriminating facts [Redacted] are not corroborated, and Latif presented a plausible alternative story . . . ."6 Nevertheless, the United States Court of Appeals, District of Columbia Circuit (D.C. Circuit) reversed the habeas order and found that the lower court should have afforded the Report a "presumption of regularity, requiring the court to presume that the information in the Report had been accurately recorded."7This Recent Development argues that the D.C. Circuit manifestly denied Latif a meaningful review of his detention due to its application of a presumption of regularity to intelligence reports and its insistence on conducting new fact finding.8 Part II examines pre-conviction habeas corpus claims for detainees held under the Authorization for Use of Military Force,9 the different legal standards of a presumption of regularity and a presumption of authenticity,10 and concludes with the facts and opinions issued by the D.C. Circuit in Latif v. Obama.11 Part III argues that the D.C. Circuit erred by refusing to defer to the District Court's fact finding and insisting that the Report qualified for a presumption of regularity.12 Part IV concludes that the Supreme Court should have granted certiorari in this case to resolve the cloud of outstanding legal issues in detainee cases.13II. BACKGROUNDA. The Life of a Pre-conviction Detainee Habeas Corpus ClaimOne week after the devastating attack on the World Trade Center on September 11, 2001, Congress passed the Authorization for Use of Military Force (AUMF), which authorizes the President to use whatever force deemed necessary to prevent future attacks against the United States from the people who "planned, authorized, committed, or aided the terrorist attacks."14 Since Congress passed the AUMF, litigants have bombarded the courts with challenges to the Government's power to detain individuals pursuant to the AUMF.15 The Supreme Court has settled two of these issues, but the D.C. Circuit has never allowed a detainee to be released from Guantanamo Bay.16In Hamdi v. Rumsfeld, the Supreme Court declared that the Government could lawfully detain enemy combatants pursuant to the AUMF.17 Following that ruling, the Government established Combatant Status Review Tribunals, which evaluated whether individuals held at Guantanamo Bay qualified as enemy combatants.18 Several of these combatants filed suit challenging their detention in the United States District Court for the District of Columbia, and the Supreme Court eventually ruled that statutory habeas corpus claims applied to Guantanamo Bay in Rasul v. Bush.19 Congress then passed the Detainee Treatment Act (DTA), stripping jurisdiction from the courts in Guantanamo cases alleging habeas corpus claims.20 Following the passage of the DTA, the Supreme Court in Hamdan v. Rumsfeld held that the DTA could not remove the Court's jurisdiction in cases that were pending when Congress passed the DTA.21 In response to this move by the Court, Congress passed the Military Commissions Act (MCA), once again attempting to remove the detainee cases from the jurisdiction of Article III courts.22The most important case addressing detainee rights in this area is Boumediene v. …