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

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

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

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

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

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

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

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

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

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

Confirmed: The Government Is Blowing Up Habeas with an Interrogation Report Involving Pakistan

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In addition to declassifying the analogies to the Wizard of Oz Janice Rogers Brown made in her opinion on Adnan Farhan Abd Al Latif’s habeas petition, the government also declassified passages from the Latif cert petition.

Newly declassified passages make it clear the report in question is TD-314/00684-02

Among the passages newly declassified is this paragraph from the document at the heart of the Latif case.

History: Subject met Ibrahim Al-((‘Alawi)) from Ibb during 2000. ‘Alawai talked about jihad and Afghanistan and convinced subject that he should travel to Afghanistan. Subject did not know if ‘Alawi had actually participated in any jihad activity himself. Subject departed home in early August 2001, travelled by car to San’a, then by airplane to Karachi. He took a taxi to Quetta, then crossed into Qandahar where he went to the grand mosque, where he met ‘Alawi. He went to ‘Alawi’s house, where he remained for three days. ‘Alawi owned a taxi in Qandahar, and had his family with· him. ‘Alawi took him to the Taliban, who gave him weapons training and put him on the front line facing the Northern Alliance north of Kabul. He remained there, under the command of Afghan leader ((Abu Fazl)), until Taliban troops retreated and Kabul fell. Subject claimed he saw a lot of people killed during the bombings, but never fired a shot. He went to Jalalabad, then crossed into Pakistan with fleeing Arabs, guided by an Afghan named Taqi ((AIlah)). While he was with the Taliban, he encountered ((Abu Hudayfa)) the Kuwaiti, ((Abu Hafs)) the Saudi, and ((Abu Bakr)) from the United Arab Emirates (UAE) or Bahrain.

By comparing that paragraph with the parts of Latif’s Gitmo file sourced to TD-314/00684-02, we can be virtually certain that the document at issue is, in fact, TD-314/00684-02. (Each sentence below is followed by the page on which it appears in Latif’s Gitmo file.)

Detainee admitted Ibrahim Aliwee convinced detainee to travel to Afghanistan for jihad and admitted staying at Abu Khulud’s residence for a short period in Kandahar. (5) Detainee admitted receiving weapons training from the Taliban and then fighting in support of the Taliban on the front lines. Detainee remained there until the Taliban retreated and Kabul fell to the Northern Alliance. (6)

Detainee admitted after training he was sent to the front lines north of Kabul. Detainee remained there until the Taliban retreated and Kabul fell to the Northern Alliance. (6-7) Detainee claimed he saw a lot of people killed during the bombings, but never fired a shot. (3) Detainee then traveled to Jalalabad, AF, and crossed into Pakistan with fleeing Arabs, guided by Taqi Allah. (3) While detainee was with the Taliban, he encountered Abu Hudayfa the Kuwaiti; Abu Hafs the Saudi, and Abu Bakr from the United Arab Emirates or Bahrain. (3)

The last two sentences, in particular, make the match particularly clear, given that those details were newly added to Latif’s Gitmo file from TD-314/00684-02 in 2008. Also note, the only major claim in the paragraph above not clearly sourced to TD-314/00684-02 in Latif’s file–“He remained there, under the command of Afghan leader ((Abu Fazl)), until Taliban troops retreated and Kabul fell”–appears this way in Latif’s Gitmo file without clear attribution but in a paragraph otherwise sourced to TD-314/00684-02:

He remained in Kabul under the command of Afghan leader Abu Fazl, until Taliban troops retreated and Kabul fell.

All of this makes it virtually certain that the report in question is TD-314/00684-02.

Newly declassified passages also show that the interrogation in question happened while Latif was in Pakistani custody

We can also show with a high degree of certainty that the interrogation in question happened while Latif was still in Pakistani custody.

This sentence, from page 10 of the cert petition, makes it fairly clear that the interrogation, if not the document itself, dates to December 2001 (the CIA file has a 2002 date, so it probably wasn’t drafted until the following month).

 The government’s case was “primarily based” on a single document, created [~1 word redacted] in late December 2001 [3-4 words redacted].

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Janice Rogers Brown Sings “Follow the Yellow Brick Road” as She Guts Habeas

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The government has released a new version of the DC Circuit opinion in the Latif case. (Via DC Circuit Review h/t scribe)

I suppose it should comfort us that the government no longer considers this passage from Janice Rogers Brown’s opinion to be classified. [I’ve underlined the bits the government previously claimed were classified; see PDF 39-40 to compare.]

What makes Latif’s current story so hard to swallow is not its intrinsic implausibility but its correspondence in so many respects with the Report he now repudiates. Like Dorothy Gale upon awakening at home in Kansas after her fantastic journey to the Land of Oz, Latif’s current account of what transpired bears a striking resemblance to the familiar faces of his former narrative. See THE WIZARD OF Oz (MGM 1939). Just as the Gales’ farmhands were transformed by Dorothy’s imagination into the Scarecrow, Tin Man, and Cowardly Lion, it is at least plausible that Latif, when his liberty was at stake, transformed his jihadi recruiter into a charity worker, his Taliban commander into an imam, his comrades-in-arms into roommates, and his military training camp into a center for religious study.

Though it raises real questions why it was classified in the first place. Really? Our government classified a Wizard of Oz analogy! And it wonders why we doubt the men behind the curtain.

And a good thing they released it, too. It makes Rogers Brown’s comment earlier in the opinion analogizing Dorothy’s Uncle Henry to Judge Henry Kennedy look every bit as disrespectful as it did in the first draft…

Even doting Uncle Henry managed to evaluate Dorothy’s credibility when· she professed that the family and friends gathered around her bed had been with her in Oz. See THE WIZARD OF Oz (MGM 1939) (“Of course we believe you, Dorothy.”). The district court, by contrast, mustered only a guarded finding of plausibility.

But at least we know that Rogers Brown–and not Kennedy–is the one who has gotten lost in Oz.

But a look at numbered page 21 shows all you need to know about the government’s good faith in this reconsidered redaction. Read more →

Prediction: Latif Will Be Repatriated

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The WaPo reports that the US is finally trying to resolve the cases of 50 non-Afghans we’ve had stashed at Bagram. It focuses on two Yemenis who may be repatriated.

The government of Yemen has agreed to closely monitor two Yemenis held by the U.S. military in Afghanistan if they are repatriated, and attorneys for the men asked the Pentagon on Monday to authorize the transfer of the two detainees.

Amin al-Bakri, 44, and Fadi al-Maqaleh, 26, have been cleared for release by military detainee review boards on three occasions, beginning in 2010, according to Pentagon records.

Now, these aren’t just any prisoners. They’re two of the three Bagram prisoners who tried to challenge their detention by filing a habeas corpus petition. And while the DC Circuit overturned their case, it remains alive based on the question of whether the US moved them to Bagram to ensure they’d be on an “active battlefield” where the government could deny habeas review. As Lawfare has suggested, one reason the government might want to transfer al-Bakri and al-Maqaleh is to be able to move to dismiss their case–to be able to prevent any expansion of legal review beyond GItmo.

Well, if the government is negotiating transfers of Yemeni prisoners they had already cleared for release, what are the chances they’re also negotiating transfers of Yemeni prisoners cleared for release who present even bigger legal problems for the government, like Adnan Farhan Abd al-Latif?

Latif’s SCOTUS appeal, after all, should be a slam-dunk. If habeas is to be remotely meaningful, the government can’t be permitted to just submit whatever obviously flawed intelligence document it wants, without some corroborating evidence, to justify imprisoning someone. Nevertheless, if Latif wins at SCOTUS, then all the habeas victories the government has won from a DC Circuit that has tried to undermine Boumediene at every turn could be lost.

And it would be just like the Imperial Bush-Obama continuum to resolve an important detention case to avoid SCOTUS review.

So I predict that if SCOTUS grants Latif cert, he, like al-Bakri and al-Maqaleh will be whisked off to Yemen to avoid any return of real review on the President’s authority.

Mind you, I wish all these men (who have never been charged) will be released from imprisonment the government says is unnecessary. I just suspect the government will do so in a way that keeps others imprisoned.

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

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In her opinion holding that government documents submitted in habeas corpus petitions must be treated with a presumption of regularity, Judge Janice Rogers Brown, herself, did not follow her own order. And in spite of demanding that judges treat their documents with the presumption of regularity, the government didn’t do so consistently in this case either. The government and the judge did not credit what Judges Henry Kennedy and David Tatel found to be one of the most important pieces of evidence in the case: the government’s own intake form showing that Adnan Farhan Abd Al Latif was captured in Pakistan with medical records.

As you recall, Latif is a Yemeni who was captured by Pakistanis close to the Afghan border, then turned over to the Americans on December 30 or 31, 2001 (this was the period when the US was paying Pakistanis bounties for Arab “fighters”). In July 2010, Kennedy granted his habeas petition. But the government (which had cleared Latif for release on multiple occasions between 2006 and 2010) appealed, arguing that Kennedy erred because he did not find their single piece of evidence explicitly tying Latif to the Taliban accurate.

I believe that evidence–a report which appears to be the summary of a “debriefing” conducted around December 27 or 28 while Latif was in Pakistani custody (see PDF 25)–is an intelligence report with the serial number TD-314/00684-02 summarizing the stories of at least nine different detainees, all the non-Yemenis of whom have since been transferred out of Gitmo.

The government apparently admitted that its case “turn[s] on the accuracy” of this report (that admission–cited to page 5 at PDF 53–appears to be redacted in the original). And Rogers Brown acknowledged that the report had an obvious mistake on its very first page. But the government argued and Rogers Brown upheld that Kennedy should have taken the report at its word, should have presumed that the government accurately identified the sources of information named in the report and accurately recorded what those sources said. “It is well established that there is a strong ‘presumption of regularity’ for actions of government officials taken in the course of their official duties,” the government argued. Unless Latif provided really good evidence to the contrary (and the fog of war and the Pakistani involvement and the translation and transcription problems were not sufficient, apparently), Rogers Brown’s opinion held that Kennedy should have accepted that the report accurately recorded Latif confessing that he had undergone military training with the Taliban.

The government also argued–critically for their case, given that their case relies on just that one report–that Latif, who explains he did not say what the report claims he said, is not credible. The government argued that, in spite of the fact that he has provided the same general explanation for his trip to Afghanistan since he came into US custody a decade ago (that he was hoping to get affordable medical care for ongoing problems from a head injury he sustained in 1994) the courts must credit the government’s one report with all its acknowledged factual errors rather than Latif’s story.

To attack Latif’s credibility, the government claimed he provided no corroboration for his story.

He submitted no evidence from a family member, from Ibrahim, or from anyone to corroborate his claim that he was traveling to Pakistan in 2001 to seek medical treatment.

But that’s not true. In addition to Latif’s medical records from being treated in Jordan, a statement from Yemen’s Ministry of Public Health recommending he get more care, and a statement from a Gitmo doctor finding Latif’s medical claims to be credible, Latif’s intake report from December 31, 2001 (PDF 33; shown above) shows he had medical records with him when he was captured.

In his opinion, Kennedy cited the intake report. Latif’s lawyers cited the report in their response to the government’s appeal. And Tatel cited it in his dissent, noting that, “the most plausible reason for why Latif would have had medical papers in his possession when first seized is that his trip in fact had a medical purpose.” Yet in spite of Rogers Brown’s claim that,

If a detainee introduces a government record to support his side of the story … he can benefit from the presumption as well.

She did not give him that benefit.

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

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I’m going to have at least two more posts on Adnan Farhan Abd Al Latif (for background see this post), both in response to this post from Mark Denbeaux and Ben Wittes’s response to it.

In this post, I want to demonstrate a possible mistaken assumption many of us have been making as we try to read through the redactions, which is that the only source of potential irregularity in the document at the heart of Latif’s habeas case may have arisen out of translation problems.

Denbeaux describes what he believes the circumstances of the report at the heart of the Latif case to be.

To illuminate how the presumption works, the majority utilizes a hypothetical that does not properly apply to Latif’s case. The hypothetical depicts a government intelligence officer taking the statement of a third party informant. The majority would have us presume that the officer accurately wrote down what the third party informant said, though not presuming the informant’s statement was itself true. This seems to make sense until you apply it to the facts of Latif. A fair and thorough reading of the opinion suggests that the document and information being redacted is a report from an interrogation of Latif that contains opponent-party admissions. The interrogation likely involved an interrogator, a translator, and Latif. Thus, the third party informant in the majority’s hypothetical is Latif himself.

But that’s not exactly what Janice Rogers Brown wrote in the majority opinion in this case. In addition to requiring us to presume that the officer accurately wrote down what the third party informant said, she also wants us to presume that the government officer accurately identified the source.

The confusion stems from the fact that intelligence reports involve two distinct actors-the non-government source and the government official who summarizes ( or transcribes) the source’s statement. The presumption of regularity pertains only to the second: it presumes the government official accurately identified the source and accurately summarized his statement, but it implies nothing about the truth of the underlying non-government source’s statement. [my emphasis]

That’s an important distinction because there are hints that misattribution might be a significant issue in this case as well.

First, the government reply to the Circuit Court tries to refute just that possibility along with mistranslation. “Those similarities – which square with the external evidence about [redacted] make it highly unlikely the report resulted from a mistranslation or misattribution” (PDF 8)

Then, even going back to Latif’s CSRT in 2004–at which the allegations he fought at Kabul, the same allegations at issue here, were presented–he insisted he was not the person referred to in the unclassified summary of charges against him.

I told you I wasn’t the person they were referring to. I never went to the places that you said I did. I am not the person this case is based on.

Also remember that the government is not relying on a discrete, self-contained report on Latif alone. Rather, it has presented just fragments of a larger report, as David Tatel noted in his dissent.

The Report’s heavy redactions–portions of only [redacted] out of [redacted] pages are unredacted–make evaluating its reliability more difficult. The unredacted portions nowhere reveal whether the same person [one and a half lines redacted] or whether someone else performed each of these tasks. And because all the other [redacted] in the Report are redacted, the district court was unable to evaluate the accuracy of [redacted] by inquiring into the accuracy of the Report’s [redacted].

That’s important because several of the intelligence reports reporting on detainees Pakistan turned over to the US in December 2001 are group reports (I’ve determined this by searching on the report name among Gitmo files). TD-314/00684-02, which I suspect is the report in question, includes reports from at least 9 detainees. TD-314/00685-02 (obviously, a closely related report) refers to at least 7 detainees. Another, TD-314/00845-02, catalogs the transfer of at least 8 detainees (a number of whom are also mentioned in TD-314/00684-02)  from Pakistani to American custody. And IIR 7 739 3396 02 lists 84 detainees purportedly captured with Ibn Sheikh al-Libi. That is, even if I’m incorrect in my supposition that TD-314/00684-02 is the report in question, chances are quite good that the report deals with multiple detainees in the same report and the redactions Tatel describes serve to hide the other detainee stories told in the same report.

Furthermore, the internal distinctions between detainees in these reports do not appear to be clear cut. Read more →

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Or have they?

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

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

DOD Recommended Transfer of Latif in 2006

Latif’s Gitmo file makes that clear.

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

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

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

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

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

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

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

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

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

Pakistani Bounty Claims: Adnan Farhan Abd Al Latif and TD-314/00684-02

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Benjamin Wittes has been complaining that no one besides Lawfare’s writers is looking closely at the DC Circuit decision in Latif.

Why has there been virtually no press coverage of the Latif decision? Other than this article on CNN’s web page, which actually ignores the aspect of the case that makes it jurisprudentially important, a search on Google News reveals none (other than Lawfare stuff).

Memo to the press: This case is important. It is far more likely, in my judgment, to provoke a cert grant than any habeas case the D.C. Circuit has decided to date. If and when it does so, it will present a novel and deeply important question to the Supreme Court: Whether the courts in reviewing these habeas cases should start with a presumption of the validity of government intelligence.

So I decided to take a closer look.

At issue is a Yemeni detainee, Adnan Farhan Abd Al Latif, picked up in Pakistan in December 2001 and alleged to have trained with al Qaeda. Judge Henry Kennedy granted Latif’s habeas petition last summer, largely because he found the government’s single most important piece of evidence–an intelligence report of some kind (which I’ll call the Report)–unreliable. The DC Circuit–with Judges Janice Rogers Brown and Karen Henderson in the majority and David Tatel in dissent–remanded the case on the issue of the detainee’s credibility. But on the more important issue–whether Kennedy was correct in dismissing the Report–they overturned the district decision. Here’s Wittes’ description of the evidentiary issue.

I think the document in question is a report with the serial number TD-314/00684-02 that I take to be the CIA’s report of Pakistani claims about a significant number of detainees they turned over to the US in December 2001–basically the intake report for a chunk of detainees, possibly (given the time and place) turned over for bounty.

Here’s my logic: Latif’s Gitmo file makes the same claim the government made in his habeas case: that Latif trained and then fought with al-Qaeda. But that entire report cites just one source–TD-314/00684-02–to make that claim. It cites TD-314/00684-02 to support the following assertions:

While detainee was with the Taliban, he encountered Abu Hudayfa the Kuwaiti; Abu Hafs the Saudi, and Abu Bakr from the United Arab Emirates or Bahrain. Detainee claimed he saw a lot of people killed during the bombings, but never fired a shot. Detainee then traveled to Jalalabad, AF, and crossed into Pakistan with fleeing Arabs, guided by Taqi Allah.

[snip]

Detainee’s recruiter is assessed to be senior al-Qaida facilitator Ibrahim Muhammad Abd al-Razzaq Baalawi, aka (Abu Khulud). Detainee admitted Ibrahim Aliwee convinced detainee to travel to Afghanistan for jihad and admitted staying at Abu Khulud’s residence for a short period in Kandahar.

[snip]

Detainee admitted receiving weapons training from the Taliban and then fighting in support of the Taliban on the front lines.

[snip]

Detainee admitted after training he was sent to the front lines north of Kabul. Detainee remained there until the Taliban retreated and Kabul fell to the Northern Alliance.

For the remaining assertions regarding Latif’s ties to Al Qaeda, the Gitmo report includes no citation.

Read more →