United States Southern Command
A t t n : S C PA - F O I A
9301 NW 33rd St

Doral, Fi 33172
December 18,2012

Re: REQUEST UNDER FREEDOM OF INFORMATION ACT / Expedited Processing Requested
Dear FOIA Officer,

This letter constitutes a request ("Request") pursuant to the Freedom of Information Act ("FOIA"), 5
U.S.C. § 552 et seq., and the Department of Defense implementing regulations, 32 C.F.R. § 286.1 et seq.
The Request Is submitted by Jeffrey S. Kaye, Ph.D., contributing writer to the online news website,
Truthout.org.
I. Requested Records
I seek the release of:

The full report with any appendices of the "15-6" directed inquiry by the Commander, U.S.
Southern Command, Into the death of Adnan Farhan Abdul Latif (ISN156). Such an Inquiry is
usually referred to as a "15-6" because It Is conducted In accordance with Army Regulation 15-6,
Procedures for Investigating Officers and Boards of Officers.
According to a December 18,2012 article by Carol Rosenberg In the Miami Herald, "NCIS still
investigating Yemeni prisoner's Guant^namo death": "a Southcom officer carried out an Investigation of
the death and turned It over to Air Force Gen. Douglas Fraser on Nov. 14, before FraseKs retirement as

Southcom commander. That report has yet to be made public..." See

http://www.mlamlherald.eom/2012/12/18/3148083/yemenls-death-ln-guantanamo-stlll.html, accessed
12/18/2012. -1 believe this report refers to the 15-6 report I am seeking.
With respect to the form of production, see 5 U.S.C. § 552(a)(3)(B), I request that responsive electronic
records be provided electronically In their native file format. If possible. Alternatively, I request that the
records be provided electronically In a text-searchable, static-Image format (PDF), In the best Image
quality in the agency's possession, and that the records be provided In separate, bates-stamped files.
If there are any fees for searching, reviewing, or copying the records, you may supply the records
without informing me of the cost If the fees do not exceed $200. Please note, however, that I am
requesting a Waiver or Limitation of Fees (see Section III below).
These records are urgently needed to Inform the public about actual or alleged government activity;
moreover, the records sought relate to a breaking news story of general public Interest. Specifically, the
records sought relate to the death of Adnan Farhan Abdul Latlf.

1

 If you deny all or any part of this request, please cite each specific exemption you think justifies your
refusal to release the information and notify me of appeal procedures available under the law.
II. Application for Expedited Processing

I request expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E); 22 C.F.R. § 171.12(b); 28 C.F.R. §
16.5(d); 32 C.F.R. § 286.4(d)(3); and 32 C.F.R. § 1900.34(c). There is a "compelling need" for these
records, as defined in the statute and regulations, because the information requested is urgently
needed by an organization primarily engaged in disseminating information in order to inform the public
about actual or alleged government activity. 5 U.S.C. § 552(a)(6)(E)(v); see also 22 C.F.R. § 171.12(b)(2);
28 C.F.R. § 16.5(d)(l)(ii); 32 C.F.R. § 286.4(d)(3)(ii); 32 C.F.R. § 1900.34(c)(2). In addition, the records
sought relate to a "breaking news story of general public Interest." 22 C.F.R. § 171.12(b)(2)(i); 32 C.F.R. §
286.4(d)(3)(ii)(A).

These records are urgently needed to inform the public about actual or alleged government activity;
moreover, the records sought relate to a breaking news story of general public interest.
The cause or causes of Latifs death have been the subject of widespread public and media attention,
especially because of the increased public scrutiny on the Guant^namo facilities. See the Miami Herald
article noted above, also, e.g.. Editorial, Death at Guantinamo Bay, N.Y. Times, Sep. 15,2012, available

at http;//www.nytimes.com/2012/09/16/opinion/sunday/death-at-guantanamo-bay.html.
In addition, Latifs death continues to spark public debate over the treatment of detainees held at
Guant^namo Bay. See, e.g., Michael Isikoff, Dead Gitmo Detainee was Cleared for Release in 2009, NBC
News, Sep. 11, 2011, available at http://worldnews.nbcnews.eom/_news/2012/09/ll/13808173-deadgitmo-detainee-was-cleared-for-release-in-2009; Carol Rosenberg, Dead Guant^namo Detainee Won,
Then Lost Court-Ordered Release, The Miami Herald, Sep. 11,2012, available at

http://www.miamiherald.com/2012/09/ll/2996888/dead-guantanamo-detainee-won-then.html;
Murtaza Hussain, Chronicle of a Death Foretold, Al-Jazeera (Sep. 22,2012),

http://www.aljazeera.eom/indepth/opinion/2012/09/201291872137626701.html; Julie Tate,
Guant^namo Detainee Found Dead Had Recently Gone on Hunger Strike, Wash. Post, Sep. 11,2012,
available at http://www.washingtonpost.com/world/national-security/guantanamo-detainee-founddead-had-recently-gone-on-hunger-strike/2012/09/ll/689a660c-fc2d-llel-8adc499661afe377_story.html.
There also has been sustained public interest about whether there are inconsistencies in the U.S.

government's official accounts of these deaths. For example, some news reports have noted that

the autopsy's reported conclusions may conflict with previous statements by U.S. and Yemeni
officials. See, e.g., Jason Leopold, Latif Autopsy Report Calls Gitmo Death a Suicide: Questions

Remain, Truthout (Nov. 26,2012), http://truth-out.org/news/item/12967-latif-autopsy-report-callsgitmo-death-a-suicide-mystery-endures. For the same reason, the records sought also relate to a
"matter of widespread and exceptional media interest in which there exist possible questions about
the government's integrity which affect public confidence." 28 C.F.R. § 16.5(d)(l)(iv); see also 32
2

 CF.R. § 1900.34(c)(2) (providing for expedited processing when "the information is relevant to a

subject of public urgency concerning an actual or alleged Federal government activity").
Moreover, these records are urgently needed by the public to understand the implications of
indefinite detention, an issue that has been the subject of a reinvigorated debate in recent months.
See, e.g.. Editorial, Close Guant^namo Prison, N.Y. Times, Nov. 25,2012, available at

http://w\Antf.nytimes.com/2012/ll/26/opinion/close-guantanamo-prison.html; Dana Liebelson,
Obama Promised (Again) That He'd Close Gitmo. So Can He?, Mother Jones (Nov. 13,2012),
http://www.motherjones.eom/politics/2012/ll/why-obama-still-wont-close-guantanamo-even-ifhe-wants; Joseph Straw, Obama reiterates call to close Guant^namo prison, N.Y. Daily News, Oct.
18,2012, available at http://articles.nydailynews.eom/2012-10-18/news/34562049_l_prison-

purchase-guantanamo-prison-thomson-correctional-center; Room for Debate: Time to End Military
Tribunals?, N.Y. Times (Nov. 18,2012),

http://www.nytimes.eom/roomfordebate/2012/ll/18/should-obama-close-guantanamo-and-endmilitary-tribunals. Several media articles have raised questions about whether the policy of
indefinite detention itself may have played a role in the deaths of Guant^namo detainees. See, e.g.,
Glenn Greenwald, Another Guant^namo prisoner death highlights Democrats' hypocrisy policy.
Guardian (Sept. 11,2012), http://www.guardian.co.uk/commentisfree/2012/sep/ll/guantanamoprisoner-death-democrats; Cora Currier, Timeline: A Guant^namo Death Foretold, ProPublica (Sept.
25,2012), http://www.propubllca.org/special/timeline-a-guantanamo-death-foretold; Baher Azmy,
Op-Ed., The Face of Indefinite Detention, N.Y. Times, Sept. 14,2012, available at

http://www.nytimes.eom/2012/09/14/opinion/life-and-death-at-guantanamo-bay.html.
Media reports on Latif s death have also focused on the absence of a prosecution or charge against
him, another controversial hallmark of Guantanamo detentions. Jane Sutton, Yemeni prisoner who
died at Guantanamo was once ordered freed, Reuters, Sept. 11,2012, available at

http://www.reuters.eom/article/2012/09/ll/us-usa-guantanamo-death-idUSBRE88A17920120911.
For all of the above reasons, the requested documents are urgently needed to inform the public about
government activity and also relate to breaking news stories of general public interest.
III. Application for Waiver or Limitation of Fees

First, I request a waiver of search, review, and duplication fees on the grounds that disclosure of the
requested records is in the public interest because it is likely to contribute significantiy to public
understanding of the operations or activities of the government and is not primarily in the requester's
commercial interest. 5 U.S.C. § 552(a)(4)(A)(iii); see also 22 C.F.R. § 171.17(a); 28 C.F.R. § 16.11(k)(l); 32
CF.R. § 286.28(d); 32 C.F.R. § 1900.13(b)(2).
Numerous news accounts reflect the considerable public interest in the records I seek. See cited articles

in Part II above. Given the ongoing and widespread media attention surrounding this issue, the records
sought in the instant Request will significantly contribute to public understanding of the government's
operations and activities. See C.F.R. § 286.28(d); 32 C.F.R. § 1900.13(b)(2)(ii). Moreover, disclosure is not
3

 in my commercial interest. Any information obtained by me as a result of this FOIA request will be
available to the public at no cost via publication on a public website
Second, I request a waiver of search and review fees on the grounds that I qualify as a "representative of
the news media" and that the records are not sought for commercial use. 28 C.F.R. § 16.11(c)(l)-(2),
(d)(1). Accordingly, fees associated with the processing of the Request should be "limited to reasonable
standard charges for document duplication." 5 U.S.C, § 552(a)(4)(A)(ii)(ll); 32 C.F.R. § 286.28(e)(7); see
also 28 C.F.R. § 16.11(d) (search and review fees shall not be charged to "representatives of the news
media").
In my role as a journalist, I (and Truthout for whom I will write anything stemming from this material)
meet the statutory and regulatory definitions of a "representative of the news media" because each are
an "entity that gathers information of potential interest to a segment of the public, uses Its editorial
skills to turn the raw materials into a distinct work, and distributes that work to an audience." 5 U.S.C. §

552(a)(4)(A)(ii)(lil).
Pursuant to applicable statutes and regulations, I expect a determination regarding expedited

processing within 10 days. See 5 U.S.C. § 552(a)(6)(E)(ii)(l); 22 C.F.R. § 171.12(b); 28 C.F.R. § 16.5(d)(4);
32 C.F.R. § 286.4(d)(3); 32 C.F.R. § 1900.21(d).

If the Request is denied in whole or in part, I ask that you justify all deletions by reference to specific
exemptions to FOIA. I expect the release of all segregable portions of otherwise exempt material. I

reserve the right to appeal a decision to withhold any information or deny a waiver of fees.
Thank you for your prompt attention to this matter. Please furnish the applicable records to:
Jeffrey S. Kaye
21 Acapuico Court
Novato,CA 94949

If you have any questions about this request, you may call me at 415-260-4222, or email me at
jeffkaye@sbcglobal.net.
Sincerely,

Jeffrey S. Kaye, Ph.D.
21 Acapuico Court
NovatO,CA 94949
415-260-4222

jeffkaye@sbcgloba I. net

4

 Thank you.

a e o R E T

c l a s s i fi c a t i o n : u n c l a s s i fi e d

C l a s s i fi c a t i o n : U N C L A S S I F I E D
Caveats:

Ex. 106, Pg. 2
SOUTHCOM/000149

 ■

SECRET

The last of Raniadun is riijorcius. particularly during long summer days when it may be required
to resist ill! food and drink for as many as siMecn hours ut a time. 'Hiis strain may be loo much
for jKOple with certain health conditions.

The Qur'an instructs Muslims to fast during the month of Ramadan, but also gives clear
exemptions for tbo.sc who may become ill as a result of fasting;

"But if any of you is ill. or on a journey, the prescribed number (of Ramadan days) should be
made up from daj .s later. For those who cannot do this except with hardship is a ransom; the
feeding of one that is indigent.... Allah iniond.s o\'erv- ease for you; lie does not want to put you
to dinicuiiies...." - Qur'an 2:184-185

in several other passages, the Qur'an instructs Nluslims not to kill or harm themselves, or cause
harm to others.

Prior to Ramadan, a Muslim should alway s consult with a doctor about the safety of fasting in
individual circumstances. Some health conditions may be improved during fasting, while others
may possibly deteriorate. If you decide that lasting could pos.sibly be harmful in your situation,
you have twu options:

• If yours is a tempt*rary, not chronic, condition you may make up the fast (a day for a day) at a
later time, when your health improves.
• If yours is a pcnnancnt or chronic condition, you may make a donation in charity in lieu of
ra.sling. The amount should be sulTicicnt to feed one person a day, for each fasting day that is
missed.

There is no need to feel guilty about taking care of your health needs during Ramadan, fhcsc
exemptions cxi.st in the Qur'an for a reason, as .Mlah knows best what issues we may face. Even
if one i.s not fasting, one can feel part of the Ranutdan e.\pcrience through other areas of warship
- such as oflcring additional prayers, inviting friends and family for evening meats, reading the
Qur'an, or donating to charity.

Additional information is axailablc below for those with specific health conccms. Again, you
should always consult with your own doctor to evaluate your individual circumstances.
• Health Tips for All - Fastina During Hot Sinnmcr Pavs

• Information for Pregnant or Nursing Women
• Information for Diabetics

• Information for Children

Ex. 106, Pg. 3

-SEeHET

'SOUTHCOM/000150

 Jili

:

i

nm-s

S,-iu-ihii,

www.islamicFlnder.org
. v. v v

Ramadan
1
2

Gregorian
20/7

Sunrise D h u h r
6:31
1:08
6:32

1:08

6:32
6:32

1:08

3

21/7
22/7

4

23/7

5

6:33

1:08
1:08

6:33

1:08

6:34

1:08

8

24/7
25/7
26/7
27/7

6 : 3 4

1:08

9

28/7

1:08

10
11

29/7
30/7

6:34
6:35

6:35

1:08

12

31/7

6:35

1:08

13

1/8
2/8
3/8
4/8
5/8
6/8
7/8

6:36

1:08

6:36

l : 0 8

6:36

1:07
1:07

6:38

1:07
1:07

8/8

6:38

1:07

6:38
6:39

1:07
1:07

2 3

9/8
10/8
11 / 8

6:39

1:06

2 4

12/8

1:06

25

13/8
14/8
15/8
16/8
17/8
18/8

6:39
6:40
6:40

1:06

6:40

1:06

6:41

1:05

6
7

14

15
16
1 7
18
1 9
2 0
21
2 2

2 5
2 7
2 8
2 9
3 0

6:37
6:37
6:37

Asr Maghrib

1:08

1:07

1:06

6:41

1:05

6:41

1:05

Fajr means both Fajr Athan (Azan) and Imsak (starting fast)

and Maghrib means both Maghrib Athan (Azan) and Iftar (breaking
fest).
Ramadan starting date is according to Makkah.

Note: Download FREE Athan (Azan) software for ' ; ,
and . at www.lslamlcFinder.org website. Hear
Automatic Athan (Azan) on every prayer time. Qlblah direction, Hijrl
Islamic Calendar, Prayer Times for 6 Million cities worldwide.
2 0 1 2 I s i a m i c F i n d e r. o r Q . A i l r i g h t s r e s e r v e d

E*. 107, Pgl

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Ta b l e o f J M C ; P r o f c s s i o p a l s

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5130a.(b (6)

[81 See. 1.4(c)

(i)//rw>) 

C i a s b i fi e d B y :
D e r i v u d f r o n : Va l t i p l e S o u r c s a
Declassify on: 10 years after cowpletiun of dtienticr.
C p e r a t l i ; n s a t G u a r. c . a n a r t o B a y, C u b a

DOD HC/HC Class.'Declass 3tlv1e 2r;l00324 ar.ci CTf'-«r.yC SCG 20000205.

Ex. 114. Pg. 1

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SOUTHCOM/000152

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Bhick Name (Name used on scatcmcnt

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Real Name

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C p e r a ti c n s a t G u a n t a n a r o B a y, C u t a

DCD HC/MC Class/lifciass Guide 20130324 and JTr-GTyo ECG SCOSCaOB.

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SOUTHCOM/000153

 ^amc fNamc uaeU on statement) _
muwyoi <t>K3):10USC
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C p e r a i t o n s a t O u a n t . a n a n o S a y, C a b a

n O D K C / K C C l a B S / D e c l a a s G u i d e 2 3 1 0 0 3 2 4 a r. d J T F - G T K t t S C O 2 C C 9 C 2 D 5 .

Ex. 116. Pg 1

SECRET

SOUTHCOM/000154

 Latif V. Obama. 677 F.3cl 1175 (2011)
400 U.S App.D.C. 231

United States Court of Appeals.

In a Guantunaiiiu detainee Itabeas proceeding,
court reviews the district coun's speciDc factual

I&trict of Columbia Circuit.

determinations for clear error, and its ultimate

577 H-3U "75

Adnnn Karhan Abdul LATH". Detainee. Camp
Delta, et. al.. Appellees

grant or denial of liabea.s de novo.

V .

Itnr.iL'k 0 lt.AM.'\. President of the United St.ilc.s. el

al., Appellants.
No. io-.^3J9.1 Argued March t.s. aoii.   Decided
Oct. 14, aoii. I Reissued April 27.2012.

[21 Habeas Corpus
. -Presumptions and burden of proof
Court of Appeals would assume, without

deciding, that the district court was correct to

.Synopsis

hold

liaek)>rtiun(l: I'hc United Stales District Court fot titc

District of Columbia. 2010 Wl. 3270761, gninted a writ

the

Govcmnicnt

to

the

prcpfliideratice-of-thc-evidmce siandunJ In a
Oiiuntanamo detainee habea.s proceeding.

of habeas corpus 10 Guantanamo Hay detainee, and
government appealed.

t(atdin >s: The Court of Appeals. Hrtnvn. Circuit Judge,
held that:

(1] presumption of regularity applied to ofTiciiil
government records, including intelligence re.aoris. and
inierrogaiion reports suntinariKiiig non-cili/en detainee's
ouTi words:

[2] detainee failed to rebut presumption of regularity; and
 3  district court erred in tailing to make an explieit
finding of detainee's credibility.

(3) Evidence
OKicial Proceedings and Acts

Presumption of recularily suppoiis the oflkin)
acts of public officers and. in the absence of
clear evidence to lite conlraiy. courts presume
that iltcy have properly discharged their official
duties.

Va c a t e d a n d r e m a n d e d .

Karen LeCrat't iicnderson. Circuit Judge, filed opinion
concurring in the judgment.
Taicl. Circuit Judge. fiJcd dissenting opinion.

I-I] Habcus Corpus
• -Presumptions

In Guantanamo habeas proceedings, a rcbiiltsbic
Wc.si Hc.ndnoles(l2j

presumption of n*gularity applies to ofnelai
government recurtls. including inlelligencc

rcpons. and interrogation reports summarizing
 1) Habeas Corpus

non-citi/jm detainee's own words.

■ Review de novo

Habeas Corpus
Clear error

Npzt

E* 130, Pg 1

SOUTHCOM/000155

 ■

LaUf V. Obama, 677 F.3d 1175 (2011)
400 U.S.APP D.C. 231

 5  Habeas Corpus
Prcsjmplions

In Guantaramo habeas proceeding, dbirict court
erred in failing to make an c.xplieil llnding of
detainee's credibility even tliough the court
relied on his declaration to discredit the

Guamanatno Bay detainee failed io rebut

government's' key evidence: by forgoing a

presumption of regularity whieh applied to
guvcmmcni interrogation report summarizing

determination of credibility for one of

his own words: inconsistcneics in the report

suggested a documem produeed on the field b>
imperfect translators or transcribers, but they did
not pruve the report's description of ceiainoe's
incriminating SMtcmcnt.<i as fundamciiiaily

pluusibilitv. district court replaecd the neccssaiy
factuni llnding with a legal conclusiuit that some
other reasonable factfinder miglit believe
detainee's .story.

unreliable.

 V  Habeas Corpus
Frcsumplions
(6  Habeas Corpus
.-^I'rcsuniplions
Neither a uranutiaiical ambiguity nor n
tangential transcription error is the .sort of

A oicrely "plausible" c.\plunution cannot rebut

the presumption of regularity which applies to
orllcial govemmoni n-cords in fiiianiiinamn
liabcus proceedings.

f u n d a m e n t a l fl a w s u fi l c i e n i t o o v e r c o m e t h e

presumption of regularity which applies to
olTicial government records in Guantanamo

hab(»s proceedings.
 I0  Evidence

-Failure of party to tcstifj- or giving evtisive
answers

A civil party's deeisluii iitn to (c-sllf} iiiiiy
 7  Habeas Corpus
- Admi.s.%ibility

Reliability of evidence in federal habeas
proceedings can be determined nut only by
looking at the evidence alone but. allcmntivcly.
by considering sufllcicm additional infonnatiun
pcnnitiing the factllnder to assess its reliability

support an adverse inference about his

credibility.

I It I Habeas Corpus
• Aliens

Gspecialiy lyhcre a Guanianamu detainee's otvn

 8  Habeas Corpus
i-'indings; fumial orders

.sclf-fcrving statements comprise the only
evidence against the government's case, his
refusal to testify in habeas proceeding is rclcvam
to the district court's credibility dctemtination.

Ex.120. Pg.2

SOUTHCOM/000156

 UtM V. Obatna. 677 F.3d 1175 (2011)
400 U S.App.D.C. 231

BROWN. Csrcoil Judge:

The United .States appeals the district court's gmni of the
 I2  Habeas CorpuN
- Aliens

Habeas Corpus
- Review tic nt>v<»

writ of habeas corpus to detainee Adnan I'nrban Ahd A1

Uaiif. Three errors in the district cnurt's analysis require
us to vac.tte that decision. First, the court failed to accord

an otTicial gowroment record a presumption of rcgularlij.

Habeas Corpus

Second, the district court failed to determine l.niirs

i-Clear error

credibility even though the court relied on his declDration
10 discredit the Government's key evidence. St.v Al-Aduhi

A cnui considering a (iiiantanaino dcbiinec's
habeas pciilion must view the evidence
colleciivuiy rather than in isolation; a habeas
court's failure to do so is a legal error that is

V. Oh(U«n. 613 F.3d 1102. 1110 (l>.C.Cir.2O10). Third,

reviewed dc novo, separate and apart trom the

the conn's unduly aiontixed approach to the evidence is
one we have rejected. .Vee »</. We remand so the disirict
court con evaluate LaiiTs credibilitv as needed in light of
tlic totality of (he evidence, including newly available

question of whether the resulting (Indlngs of fact

evidence as appropriate.

were c'cnrK erroneous in themselves.

* 11 7 7 1

l.atif is a Yemeni national who was apprehended near
Pakistan's Afghati border in late 2(101 and iraiisfcrred to

*1176 Appeal from the L-'iiiicd .Slates District Coun for
t'nc District ofCulumbia (Nil. 1:04 cv 012.14).

Guanianamo Bay In January 2002. The parties agree that
l.atif cnntmenced his travels at the suggestion of ,i man
named Ibrahim and that Laiif set utT from Yetnen to

Altnrnc.vs and Law Firms

August E. KIcrtJe. Attorney. l-'.S. Depanmcnt of Justice,
argued the cause for appellants. With him un the biicfs
were Ian Heath Gershengorn. Deputv Assistant Aliornev
General, and Robert M. Loeb. Attorney.

Philip A. Scarborough urgucti the cause for appellees. On
the brief were S. William Livingston. Roger A. Ford, and
(3avid If. Remcs. Britm li. Foster entered an appearance.
B e f o r e : l l l i N D h R S O N . TAT M l . a n d B R G 1 k > ! . C i r c u i t

Judges.
Opinlnn

Cimeurring opinion filed by Circuit Judge HENDERSON.

Dissenting opinion filed hy Circuit Judge TATF.I..

Qiieita. Pakistan, and from there to Kabul, Afghanistan.
The panics also agree thai after reluming lo Pakistan.
Laiif was seized b> the Pakistani military without a
passport. Wliat the parties disagree alHiut is ihc nature of
Latir.s trip. The Govcmincnt says l.atif was recruited and
ittthicd by the Taliban and then was stationed In Kabul on
the frDitl line against the Northern Alliance. Latif says he
left Yemen in search of medical care and has never had

anything to do with the Taliban.

I'hc Government's case against Latif is based on a heavily
redacted  redacted  ("Report") According lo the story
altribulcd to Latif in the Report, Ibrahim Al-Alawi began
rccrtiiling Latif for jihad in 2000. At lhrahim'.s urging.
Latif left home in early August 2001 and travelled to
Afghanistan via Sana'a. Yemen; Karachi. Pakistan; and
(Jucita. Pakistan. Latif met ibraliim al (he Grand Mosque
in Kandahar. Afghanistan, and stayed with him and his
family for three days. From Kandahar. Ibrahim took Latif

to ihc Taliban. The Taliban gave liim weapons training
and stationed iilm on the front line against Ihc Northern
Alliance, north of Kabul, under the command of Afghan
leader Abo Fazl. While there. L."ttif reportedly "saw a lot

N»>.t

F*. 1?n.Pg .1

SOUTHCOM/000157

 I

Latif V. Obama, 677 F.3ri 1175 (2011)

400U'S.App.D.C. 231
of people killed during ilie bombings, but never flml a
shot." While vviih the l alihan. I.atif met Abu lliidaira of
Kuuait, Abu Hafs of Saudi Arabia, and Abu Bakr of the
United Arab Emirates or Bidtnitn. I.alif rvireaicd to

Puklsinn via Jalalabad with nccitig Arabs, guided by an
Afghan named Taqi Allah.
Among other un-rcdactcd identify ing details. Che Report

I I

 l   2  III a Ciuanianamo detainee case, we review the

district court*s 'specific faciual dclcrminatiDns" for clear

indicates that lailif s mother's name is Munu. that he lived

error, and its ultimate grant or denial of habeas dv mnt.

in the village of'Udnyii in Ibb. Yemen, and that his only
prior trip out of that country was to Jordan with a friend

AlmerMi v. Ohwmi. 654 E.3d I. 5 (D.C.Cir.20U). As in

our prior cases, wc as.sumc. without deciding, that the

"for medical treatment of an injury to his hand. "

district court was correct to hold the Government to the

[redacted] In the district court, the Government did not
produce the notes on which this Report was bascti. The

preponderance-of-lhe-evidcnec standard. Svv id. at 3 n 4;
At- Bihani \. Ohamu. 590 F.3d 866. 878 & n. 4
(O.C'.Cir.20IO); sen u/.vh Boumndiew v. Busk 553 U.S.

Government now claims to have located the notes, which
those notes lute been duclosed to Latif s counsel in some

723. 787. 12K S.Ci. 2229. 171 l..nd.2d 41  2«08,» { •'I he
extent of Ihe showing required of the Govcmineiit in titcsc

ftirm.

cases is a matter to be determined."); Al-Adalti. 613 l'.3d

Latif docs not deny being interv iewed (rcducted  Nor docs
he allege his statements were coerced or uilierwise
involuntary. Uul l.atif says his statements were

Clause requires the use of the preponderance .standard, we
will not decido the question in this case."), fo meet its
burden, "the goveranicnt must put fonh credible facts

it says confirm the Report. Since this case was briefed,

at 110.1 ("Although wc doubt ... that the Suspension

inisuriderMiiod ui. alicrnaiivcly. [redacted] were
misattributcd to him. In a declaration filed with the

dcinmixtratiiig thai the petitioner meets the deicntinn

district court in 2009. Latif denies ever being pan of the
Taliban mid offers an iinioceni explanation fur his
journey. Latif says he left Yemen in 2001 on t quest for
incdieal treatment for head injuries he suffered in a 1994
car accident, lie went to Pakistan to get help from

explanation." AlmerfeJi. 654 I'.Jd at 6.

Ibrahim, a Ycnx-ni he had met at a charitable otganiaation

in Yemen. When Latif airivcd in Quctta. Ibrahim had
already left Pakistan, so Latif followed him to an l.slamic
studies institute in Kabul. Afghanistan. Hut otieo l.aiif
caught up to Ibrahim at the institute. Ibrahim had to leave

again and told luitifio wail for him there until lliey could
travel together to Paki.sian. After waiting hi vain for
several weeks. Ijtif says, he then returned to Paki.siun

standard, which is then compared to a detainee's facts and

At Ihc heart of the Govemmcni'v case is the Report in
which Latif reportedly admitted being recruited for jihad,
receiving wcsipoas training from Ihc Taliban, and serving
on the front line with other Taliban troops. Latifs whole
defense is that this olTicial government record is
iinieliable—In other words, that the Ciovcmmcni bulched

it. Latif says hu interrogators (rcJacieii) so garbled his
words that their summary bears no relation to what he
actually said. Latif s ca.se turns on this claim, because if
the Report is an accurate summary of what lauiftuid his

iiiterrogalors. then his detention is' lawful. On this wc all

without Ibrahim, ftceing U.S. • supported forces lie bad

agree. iMtif. 2010 U.S. Dist. LEXIS 83596. slip op. at 26;

been lold were advancing from northcm .Afghanistan.

tiivtird Dissenting Op. <-it 1206- 07. The district court says

The district court grnnied Latifs habeas petition

.slip op. at 26. and for good reason; the Rcpon h.is more
lliari sufncieni indicia of reliability to meet the
Govenimeni's "minimum threshold of persuasiveness."

following hricfuig and a hearing in which Liiilf declined

to icsliry. *\mAh(hih v. Ohumu (f.mif). 2010 LI.S. Dlsl.
LEXIS 83596 (l).D.C. July 21.2010). Alt.hough it did not
"disregard" the Kcpon entirely , slip op. at 26. the district
court concluded it ctiuld not "credit that Iftfumiution

because ihcrc is serious question, as ti> whether the
[Report] accurately reflects Latifs words, the
incriminating facis in the (Report j ate not corrolioratcd.
and ].atir hiu presented u pluu.sible nltcmativc story to
explain his Iriivel." Ut.

it did not altogether dbregard the GovcTnmem's evidence,

. )lim'rf.'dJ. 654 I-'.3<i at 6.

fhdtnarily lit this point in niir annlysix. wv wuulil simply
review the district court's comparison of Ih'c
Governincni's evidence with the "detainee's facts and

explanation." bearing in mind that Ihc uliiinjac burden is

on the Government to establish l.aiil*s dclcniion is legal.
!<! We pause here, however, becsiusc Ihc district court

■ Nr>!

Ex. 12C, Pg 4

SOUTHCOM/000158

 Latif V. Obama, 677 F.3d 1175 (2011)
400 U.S.APP.O.C. 231

cspressly refused lo accord a presumption of regularity to
the Government's evidence, and on appeal the

(Tjhe Constitution would not be

Ooventntcnt continues to assert its Report is entitled to

of the Govcmnncni's evidence, so

such a presumption.

lung as thai presumption remained

offended by a presumption in favor

a

A

rebuttable

one

and

fair

opportunity for rebuttal were
provided. thus. once the
Govcniinent puts fonh ercdlhle

evidence that the habeas petitioner
(3) "The prcsuinpttoit of regularity supports the official
acts of public olliccrs and. in the absence of clear

evidence (0 the contrary, courts presume that Ihcy have
properly discharged their official duiic.s." Smxman v. i'.S
.\tarMs San-., 494 F.3d 1106, 1117 (D.C.Cir.3007). The

presumption applies to govcmmcni-prodoced documents
no less than to other official acts. .S'l'c AW"/ Cor/).
Comm-r. 21^ K.3d 16. 21 (l3.C.Cir.2C02) (holding iliai
"an ofTlcial tax receipt" of u foreign govemmctit "is
entitled to a presumption of regularity"). But Latif (and
our dissenting collcugue) argue no such presumption can
be *1179 applied in Uuanianamo cases—at icnsi not to
interrogation reports prepared in stressful and chaotic

conditions, filtered through interpreters, subject to
transcription errors, and heavily redacted for national
sccun'ly purposes.

 4  Since the problems l.allf cites iiru typical of
Cuantanamo detainees' interrogation rcpons, the rule he
proposes would subject alt such docutncnis lo the

fte-said'shc-said balancing of ordinary cvidettcc. It is
impossible to cure the conditions under which these

documents were created, so Lalifs proposed rule would
render the traditional presumption of regularity wholly
illusory in this context. Wc conclude first that Imclliccncc
dacumcms of the sort at Issue here arc entitled to u

presumption of regularity, and second that neither intcmal
fl a w s n o r e x t e r n a l r e c o r d e v i d e n c e r e b u t s t h a t

prcsumpilon in thi.x case.
Courts sensibly have anticipated that some .sort nf

meets the cnerny-comhataiii
criteria, the onus could shift to the

petitioner to rebut that evidence

with more pcr5ua.sivc evidence that

he falls outside the criteria.

Humth V. Rumsfeld .142 U.S. 507. 534. 124 S.Cl. 2633.
159 L,Iid.2d .578 (2004).

When the Supreme Ctniri e.viended the habeas right to
nun-citizen detainees in 2003. it tasked the lower courts

with developing a wvirknblc habeas remedy that would

give dctainee.f a "meaningful opportunity to demonstrate"
the uninwfuiness of their detention. Roumi-Jieuc. 553 U.S.

at 779, 128 S.Ct. 2229, yet it left unaddresscd the content
of the governing law, id. at 798. 128 S.Cl. 2229.
lUmwJiene noted lhat "common-law habeas corpus was.
above all, an adaptable remedy" whose "precise

application and scope changed depending upon the
circumstances." U. at 779. 128 S.Cl. 2229. Our dissenting
colleague seems to think Boumediene mandates a

skeptlcaL-if not cynical—supervisory role for the courts
over the Hxccutlve branch's interactions with its detainees

ni Guantanan'.o. Dissenting Op. at 1209. In our view, the
lioumedient! Court envisioned a much more modest

judicial role. Aside ffoni a few minimal procedural
safeguards, designed to preclude the Govcrrancat acting

as its own judge.! the Court left the scope of the habeas

right to the cominon-law-likc process In which we have
been engaged ever since: "(Tjlie Suspension Clause docs
not resist innovation in *1180 the field of I)abca.s corpus.

presumption is proper in the Cuantanamo. but until now

Certain accommodations can be made to reduce the

suggests that a presumption in favor of the Government's
evidence in this case "inappropriately shifl[s] the burden"
of proof from the Government to the detainee. Dissenting
Op. at 1220-21. A Supreme Court plurality said just the
opposite, however—and in a case involving the intlitary

the writ." Boumcilleue. 553 U.S. at 795. 128 S.Ct. 2220.

wr have not directly addressed the question. Ihe di.ssent
interprets our silence heretofore as disapproval and

detention ofun American ciii/cn, no lcs.<.:

burden habeas carpus proceedings will place on the
tnilituty without impermissibly diluting the pmtcctioas of
In that spirit, the district court bos operated undci a case
management order that spccirically authorized reliance on

cvidcnliaTy presumptions, .lee In re Ciianiamimo BatIMuinee Litig.. 2008 WL 4858241, at *3. 2008 U.S. Dist.

LliXIS 97095. at *104 (D.D.C. Nov. 5. 2008) ("The

Merits Judge may accord n rebuttable presumption of
N&/t

Ex. 120. Pg. s

SOUTHCOM/000159

 Latif V. Obama, 677 F.3d 1175 (2011)
400U.S.App.D.C. 231

accurac> and auiheniiciiy lo any evidence (tic govcmineni
prcscnis usjuslitlcaiion for the petitioner's detention if the
government csiablislurs that the presumption is necessary
to alleviate an undue burden presented b\ the panieular

accurately summarized liis staicment. hut it Implies
nothing about the truth of the underlying non-govcniment
source's statement, fhcre arc many conceivable reasons

frequently invoked this order in urging a presumption that

why a govcrnincni document might accunEtly record a
statement that is it.sclf incredible. A source may be shown
to have lied, for example, or he may prove his statement

habeas corpus proceeding."). The (iovcrnment ha.s
its evidence is uccurnic. bit! the district court, with no

wa> coerced. I'he pre.sumpliori of regularity to llie e.steni

guidance front us. ha.<i been reluctant to gram anything
more than a presumption of authenticity. Sen DIsNJAMIN

it is not rebutted rcquirc.s a court to ircBl the

Wirrt-S.

compel a determination that the record cstidtlishcs what it

ROBERT M.

CHESNKY &

I.ARKIN

Government's *1181 record as accurate: it dues not

RHY>IOl.l)S. The Emeryiiifi Law of DeteMUm 2.0:
(JHiinionamo Habeas Cases as t.awmakln};. at 52 -53 ntt.

is offered to prove.

237-43 (Mny 12. 2011) (citing cases granting a

Aitnihcr reason the district coun has denied the

prcsiintption of authetiticlly but nut accuracy),

lntp:/,'www.brookings.cdu.*papers.'2011/05. guaniannino.
wities.aspx (last visited September 30, 2011). Aside from
our silence, there are at least two other itasons why the
district court has nut applied a presumption of accunicy.

Government's inolinns for a presumption of aeeuracy
may be that such a presumption is often unnecessary or
inrcievam. The Covemnient has frequently been able to
prove its detention authority without relying on any
presumption that its records arc accurate. And in many
cases, detainees do not challenge the Government's

Conflision about the nature of the presumption may

recordkeeping. Instead, they attack the sulTiciency of the

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

evidence, or they claim that the Government's

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

information is unreliable because it resulted from harsh

evfdencc presented by ilie government that has been

Intcrrogntiun techniques, multiple levels of hearsay, or

created and maintained in the ordinary course of business

unknown source.s.

should be afTorded a presumption of autlicnttciiy." Dist.
Ci. Docket Ko. 606. but the coun rejected the

government's tcquesi for a presumption of accuracy "for
the reasons staled by Judge Kcsslcr in Almivif v. Obama
613 K.Siipp.2d 51. 54 .15 tD.D.C.2009) and Judge
Kollar-Kulclly In .11 .Mutairi v. Uitiieil Slates, [644
E'.Supi).2d 78 (D.D.C.200<>)  ." U. Those ca.ses
misundcrslcod the nature of the presumption. In .HimeJ

This cose presents a dlD'crent que.stion because I.atifs
sole challenge is to the accuracy of the Government's
summaiy of his own words. When the detainee's
challenge is to the evidence-gathering process itself,
should a presumption of regularity apply to the ofllclal
government document that rcsult.s'.» We think the answer
is yes.

and At Muiairi. the district court assumed the requested

To forbid a presumption of regularity in spile of

pre.sumptlon would go to the truth of *lhe facts contained
in the GovcromenCs exhibits." .Ahmed. 613 l'.Supp.2d at
55. Since "Ihc accuracy of much of the factual malurini

Buiimedienes implicit invitation to innovate. 553 G'.S. .it

contained in the (Government'sj exhibits (was) hntly
contested." Id. quoted in At Mutairi. 644 F.."3upp.2d m 84.

already well accustomed to such burdcn-slilDing

and the evldcniiaiy dispute In Ahmed involved allegations
that the lelcvant statements were "obtained by torture."

proceeding, for example, "a dclerininatton of a factual
issue made by a Stale court sliall 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(cKI); .viv

.ihmed, 613 P.Supp.2d at S5. the court was rightly
disinclined to gram ihcm a presumption of truth. But the
presumption of regularity doc.s not require a court to

795. 128 S.Ct. 2229. would be particularly
counterinluilivc. since the (icW of liabcas corpus is
presumpliom:. In a state pristmer's federal habeas

accept the imth ofa nongovemmcm source's staicment.

Al-Bihani, 590 F.3d at 878. And after a state coun

The confusien stems from the fact that intelligence reports

of legulority," such that "(ijf that conviction is lutui used
to enhance a (fedcrall criminal sentence, the defendant

involve two distinct actors - the non-government source
and the gowmmcm otlicial who sitmrnari/es (or
transcribes) the source's staicnicm. Tlie presumption of

regularity pertains only to the second: it presumes the
government official accurately identified the source and

conviction becomes final, it is subject to a '-presumption
generally may not challenge the enhanced scnteiKC
ttirough a pclitiun under § 2254 on the ground that the
prior conviction was unconstitiitionany obtained."
l.tukawanna C'ly. Dhl. .•!//v v. Coss. 532 U.S. 394.

. • • 1 Ne»t

Ex. 120. Pg. 6

SOUTHCOM/000160

 Latif V. Obama. 677 F.3d 117S (2011)
400 U.S.App.O.C. 231
405-04.121 S.Ct. 1567. l49L.r;d.2d 008l2001):.w.(/5(^
P,irL- V. Ral^y. 506 U.S. 20. 30. 115 S Ct. 517. 121
l. l-:<1.2d 39! (1992) (snine for enhancement of a stale
court sentence).:

Just as principles ofveriiL-at coinit\ and federal ism just ify
presumpiions in favor of state court judgments In ordinary
criniiiial habeas proccedinits. .«v Sumner v Maiti. 449
U.S. 539. 547.101 S.Ct. 764. 66 l..l-:d.2d 722 (1981). ihe

horizontal separation of powers justitles a presumption In
favor of ofTicia' L'xccuiivc branch records in Guanuinamo

habeas  uoceedlngs. The district court is iiniqucly
qualitled to determine the credibility of hearsay, and the
•1182 presumption of regularity docs not detract Ihim
thai role. But courts have no special cxpcrti.sc in
evaluating the nature and reliability of the Executive

1216-17. vvc know fmr more about the personnel, process,
und .standards involved in producing intelligence records
like the Report than we do about the foreign and stale
governmental organs whose records \vc also pre.nimc to
be reliable, and we have no reason to suspect such
documents are fundamentally unrcliable. i
Railier thnn cast doubt on the viability of the presumption
of regularity in this conte.xi. our only pertinent
post-liuunwdlem' discussion of the presumption strongly
suggests ils continuing viability. In Al-Hihani. the
detainee complained that the district court had "erred tiy
... presuming the accuracy of the government s evidence."

590 F.3d at 875. Without isoluting the components of
Al Bibani's multifaccted procedural argument it
included attacks on the .standard of review, the denial of a

branch's wartime records. For that, it is appropriate to

full-blown evidentiary hearing, alleged burdcn-shitling.

defer to E.xccutivc branch c.xp<nisc. See Boiimeiilene. 5.'.1

und the district court's discovery orders—wc said that his

U.S. at 796-97. 128 S.Ct. 2229 ("In considering both the

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

•'argument clearly demonstrate!dj [his own] error" and
that Biaimediiw'i holding had placed it on "shaky
groumJ " Id. tit 876. Without e.splluiily ciiiinrmiiig that the
district court had applied a presumption in favor of the

Constitution and common sense support judicial modesty

Ciovemmem's evidence in tliat ease, »c noted that its tusc

when assessing tltc Executive's ainhority to detain
prisoners during wartime, for it is an area in whicit the
judiciary has the least competence and the smallest

inatiagement order "reserved the dijstrict court's
discretion, when appropriate, to adopt a rebuttable

Our dissenting colleague concludes the presumption of
nigularity should not extend to ofltcial intelligence reports
because he imagines the presumption of regularity is Just
a shortcut for crediting the work product of ofTicial
processes we know to be "transparent, accessible, und
oDen familiar." Dissenting Op. at 1207. and because he
thinks we know relatively little about how intelligence
reports arc created, id at 1207 08. Both premises are

the district court had in fact exercised this discretion when

procedural and substantive standards used to impose

dcteiitiun to prevent nets of tvrrurisiii. proper dcfcicuce

constitutional footprint.

presumption in favor of *1183 the accuracy of the

govxrnmcnt's evidence." /«/. at 86V 70. Wc implied that
wc quoted the order with approval in our hcaisay analysis.

Id. at S80 ("(T he Court will detcnnirte. as to any
evidence introduced by the Government, whether a
presumption of accuracy and/or authenticity should be
accorded."). Consistent witii this order, we noted, tltc

district court had judged the "admissions presented hy Ihe
govemmcni to he 'credible and consistent.' " Id. indeed,

false. Courts rcgularlv apply the presumption to

the district court relied on "certain slotcmcnis by the

govcnimenl actions and documents that result from

petitioner that the Court finds credible and certain

processes that are anything but "transparent."
"acce.ssihic," and "faniiliar." The presumption of

regularity is founded on imcr-braoeh and
inier-govcrnmcntal comity , not our own judicial c.xpvnise

with ihe relevant government conduct. In Satioiuil.
vvc presumed a foa-ign government cntily's receipt to he

reliable wiiliout prciending it was prodticcd by a
"fnmlliar" or "transparent" process. Id at 1207; see 295
I'.id at 20-22. Likewise, federal courts need no expertise
concerning the proccdurc.s of slate courts, probation

olTices. and drug treatment centers to aflord their ofllclal
records a presumption of regularity. See eases cited sii/irn
note 2. Tlionks to the explanatory declarations
Iredactions) which we discuss below, .tee »»/>•« at

classified documents" without entertaining the possibility
that die detainee's statcnicnts had Iwen niisreportcd. .4f
O i l M H i V. O h a m a . 5 9 4 l - . S u p p . 2 d 3 5 . 3 8 . ' 9

(D.D.C.2009). Wc did not di.stinguish the presumption of
regularity from the admission of hearsay evidence
generally, but wc noted that "had the district court
inipuseJ stringent standards of evidence In the nrsi

itisinnce, the govcrnmciit may well have been obligated to
go beyond Al -Uiltani's interrogation records and into the

battlefield to present a catsc that met its burden." 1/
tlihuni. 590 F.3d 31 877- 78. and vvc "disposed of "jtjhc
rest of AI-Bihani'-i procedural claims... without extended

discussion." Id. at 881. Allltough .Al-Bihuni docs nut
clearly hold the district court may accord govcroment

. .Nest

E* 120.P0 7

SOUTHCOM/000161

 Latif V. Obama, 677 F.3d 117S (2011)
400U.SApD.D.C.2ai

evidence a prcwmpiioii of rcgtilariiy. that case is certainly

l'..ld 416 (No. 09 -5383), EICF No. 1236093 (observing

ConsiMcni with uiday's holding.

that "the district coun did not presume the accuracy or
authenticity of the govcnuneni's evidence"). True, the

Alihoiigh it was decided under the prc-Bttiimnt/Uw
Detainee Trcaiineitl Act of I1005(DTA), uur opinion in

Govcmincni's brief interpreted the criminal ca.scs on

Purhai V. Gute\. 552 F.3d 534 (D.C.Cir.2008). also lends

'unusual circumstances.' a translation is assumed to be

support to the continuing viability of such a piesumption.

accurate" in "criminal proceedings governed by the

wliich Barhourai relied as "acknovvledglingj that, absent

In Parhai. we noted that the OTA incotporated by
rvfctvncc a "rchtiiuihU presumption tliat the Govcrntnctit

Confrontation Clause and the Federal Rules of Kvidence."

Evidence is genuine and accurate." /</ at 847 (<)uotatlon
marks omined) (quoting Implementation of C'onibuluttt

213 F.3d 898. 892 (5th Cir.2000) and UmleJ States v

.Status Review Tribunal I'roccdurcs at li-1 § (J(II1 (July

Gnvcmmeni did not ask us to apply any such presumption

29. 2004)). We reversed the Tribunar.»^ decision bccottse

to its evidence, indeed, the Government noted those

the Governmert 's evidence, despite the presumption in its

criminal ca.ses were "clearly distinguishable.'* Id at 45.

favor, could not "sustain the dcicrminaiion that I'arhal is

We agreed. The cases Barltoumi relied on related to the

an enemy coinbaiam." 532 l".3d at 847. The iniolligencc
consisted of anonymous hearsay in the form of
unsupported "bottom-line assertions." so it svas
impossible for us to "assess tlie rellafoilliy of the
assertions in the dociinicnts." hi. We explained that "litfa
'i'ribiinal cannot assess the reliability of the govemiiK'ni's
evidence, then the 'rebuttable* presumption becomes

< ucstion of admissibility, which we observed was

cfTectively irrebuttable." /«/. Although we found tire

presumption rebutted in Ptirhui. we ca.st no doubt on the
propriety of such a presumption in tlie Uunnlananu)
context. Pwhai still "sets the guideposis for our inquiry
into the reliability of the tGovcmmcni's] evidence in a
delaince*s habeas case." Hmisayuli v. Ohuma 610 h.Sd

718. 725 (l).C.Cir.20t0) (quoting Burhoumi v. Ohanm.

hi ;il 45 46 (quoting l.'nilL'J Stales v. .U(irtwe:~(i<nnin.
rithicak. 553 F.3d 344. 352 (4th Cir.200'))). But the

irrelevant in the Ciuanianaino habeas conte.xt since alt

hearsay Is admissible. We re/ecietl the detainee's
coiiicnlion that deficiencies in the transliitinn rendered it

unreliable. See Barhottaii. 609 F..1d at 431. Wc certainly
did mil deny the pussibitily that « presuiilptiort of
accuracy might apply in the habeas context—^wc simply
were nut ciinfrunted with that question. Our opinion in
liorhoutiii tltcrcfore cannot bind us to the dissent's view

tliat the constitutional right to habeas precludes any
presumption in favor of an ofllcial intelligence report.
"Constitutional rights arc not dellned by inferences from
opinions which did not address the question at issue."
Teias V. Cohh. 532 U.S. 162. 169. 121 S.Ct. 1535. 149

609 F..ld 416. 423 (n.C.Cir.2010)). And neither the

L.Ed.2d 32 i (2001); see ttbo irtpez »•. Mtmterev l.'n-. 525

Supreme Coun nor our couit has ever rejected the

U S 266. 281. 119 S.Ct. 693. 142 I..Ed.2d ^8 (1999)

presumptron we analyzed in that case.

("(r)hi» coun is not bounil hy iis prior assumptions."):,-/

Our dissenting colleague ptiinis to four more recent cases
to defend his view ih-al intelligence documents like the
Report in this case arc undeserving of a presumption of
regularity. Dissenting Op. at 1210 12 (citing Barhonmi.

.'Irt. Christian Seh. Tuititm Off{ v. H'inn. U.S.
131 S.Ct. 1436. 1448-49. 179 I. lid. 2d .*23 (2011)

609 r.3d4l6. Bensavah. 610 l''.3(i 718. .A! Ahvi r. Ohtinni.

("When a potential jurisdictional defect is neither noted
nor discussed in a federal decision, the decision docs not
stand for the proposition that no defect c.xistcd. lite Coun

653 F..id 11 (D.C.Cir.2(»ll). and AVw« v. Ohamu, 655

would risk cior if it relied an assumptions that have gone

T.3d 20(D.C.C'ir.20l i)). Hut sve had no occasion to apply
sucii a presumption in any of these cases, nnd none of

Ahruhttm.<!(jn. 507 U.S. 619. 631. 113 S.Cl, 1710. 123

tlieni limits our discretion to do so under BoumeJleni'.

L.lid 2d 353 (1993) <"(S incc wc have never squarely

In Barktmmi wc considered a Government intelligence
I'cpuil cuniaiiiiiig a translation of a diary . Although uc

aftirmed the district coun's favorable trvaimcm of (lie
G o v e m m e n i ' s c v i d e n c u , * 11 8 4 6 U 9 r. 3 d a t 4 2 8 - 3 1 . w c

did not apply a presumption of regularity. The reason Ibr
that omission is simple, fhe district court had credited the
Goveinmeiil's evidence without applying .-i prcsuniptiun
of regularity, and we were reviewing for clear error. .Vcc
Drief of Respondents Appellees at 52. Burhoumi. 609

unstated and unexamined." (citations omitted)); Brecht v.

addressed the issue, and have at most as.sunicd the

applicability of the f.'/iu/imun (i-. Call/ornlii. 386 U.S. 18.
87 S.Ct. 824, 17 l„Ed.2d 705 (1967)   ('harmless beyond
a reasonable doubt'] standard on habeas, we arc free In
address the issue on the merits "1.

For the same reason, wc cannot extract from Beiuayak Al
.Aim. or KJtan the dissent's proposed bar on evidentiary
presumptions for intelligence reports. A.s in Barhonmi the

Govcmmcnt did not request a prvsumption of regularity in

Next

Cx. 120, pg. 8

SOUTHCOM/000162

 Utif V. Obatna. 677 F.3d 1175 (2011)

400 U S'^.D.C 231
any of these appeals. Sue Brief of KcspnnJcms Appellees

at 38 39. Sens^-ah. 610 F3d 718 (No. 08-5537); Brief

of Respondents-Appellees at 34 -38, AtA(wi. 653 F.3d 11
(No. 09-5125): Brief of Respondents-Appellees at 45 58.

habeas proceedings a rebuttable presumption of regularity
applies to ofliciai government records, including
intelligence reports like the one at issue here.

Khan. 655 F.3d 20 (No. 10 -5306). llius. the court

appropriately refrained from addressing the viability of
such a presumption in each of those cases. See Rumbvr v
Disukt uf Columbia. 595 F.3d 1298. 1302
(t).C.Cir.20IO) ('* W e follow our usuni practice of
declining to reverse the district court based on nrgumenis
that the appel'ant did not raise."): UniicU Suiiex v.
Firc«//w, 202 F.3d 345. 348 (l).C.Cir.200n) r Uccausc

(ihe dcfciidanti *1185 failed to preserve the nrgiiinciit for
appeal, we review ... ai uutsi for plain error." (emphasis

added)). Absent relevant arguments, none of lbc.se cases
can he re.-id to foreclose a presiiiiiption of regularity fur
government docuntcnts in general or intelligence reports
in particular.

Apan from its precedential argument, tlie dissent frets that
"in practice" the pntsuinptioii of regularity will compel
courts to rubber-stamp government detentions because It
"suggcstls) that whatever the govcmmcnl says mu.st be

treated as true." Dissenting Op. at 1215 (quoting I'tuhai.
532 F.3d at 8':-9). That fear is unfounded Again, the
presumption of regularity, if nut rebutted, only permits a

court to conclude that the stnteinents in a government
record were actually made; it says nothing about.whether
tho.se statctncms are true. And while the presumption
:qiplics to government records, it docs not apply only to
the govcniinciii's evidence. If u detainee introduces a

government record to support his side of the sior> -;is has
been done in the past, .we, e.g . AwaJ. 608 F.3c nt 5 ("In
support of hi.s petition, Awud introduced into evidence ...

additional statements he made to his interrogators") he

can benefit from the presumption as well. F-inally. the

presumption likely will never play a larger role in the
resolution of a ettsc than it ditcs here (because the

rcllabilily of the Kcpon is the central dispute), and even
here, the presumption is not dispositive.
A body of judge-made law is not bom fully formed, like
Athena from the head of Zeus. It grows gruduHlly.

developing little by little in response to the facts and
circumstances of each new case. Until now. w-c have not

had to decide wlivilicr the coiiiniun-law picsiiniptiun of
regularity applies in Ouantanuinu habeas procee(lmg.s.
This case finally forces the issue because Latif challenges
only the reliability of the Report, and because the
Government persists iit its request fur a presumption uf
regularity on appeal.4 We hold that in Guanianarno

B

(9  Because the Report is entitled to a presumption of
regularity, and because the Kcpotl if reliable, proves the
Inwrulncss of l.iitirs detention, wc can only uphold the
district court s grant of habeas it Latif has rebutted the
Goremmcnt's evidence with more convincing evidence
of his own.S *1186 Viewed together, both the internal
Daws Latif idcniincs in the Report and the other evidence
he uses to attack its reliability fail to meet this "burden.
Wc begin our rebulial analysis with the Report itself,
because Latif alleges that intrinsic Daws in the document
undermine Us reliability, ntc Report bears cs-cn
indication of being what the Government says it is
(redactions] Some of the information gleaned from Latifs
interview is redacted, including information about
jrcdaclions] the name of a friend who accompanied him
to Jordan for medical treaimcni. [redactions]
Despite its redactions, the Report pennits the assessment
of rcliahility wc demanded in Parhai, 532 F.3d at 847.
The Report is identillcd [redactiotis 

These general descriptions seem to be consistent with the

specific document at is.suc in this ea.se. Critically, the
Report purports to suniinarize nn actual interview wiih
l.atirhiniseir- not the anonymous hearsay wc rejcctod in
Parhttt. Cf. id. at 846 -17.6 Rather than "bottom-line
assertions." Id. at 847. the Report tells a story that a court
eun evaluaic for internal consistency, and for consistency
with other evidence. And the Report includes enough
biograpliiciil information to support an inlerenecthai Latif
was indeed the subject of the interview. Although the
Report bears (rcdaclions]
In his attack on the reliability of the Oovcmmcnt's
evidence. Latif relies heavily on  redactions] apparent

iraiiscription errors in the Report—an ambiguous
reference to the injury tlist necessitated his trip to Jordan

in 1994, [redactions] Thouj^ purporting not to disregard
the Report entirely, the district court reasoned these errors
support "an hrercnce that poor, translation, sloppy note
taking.  rcdac:ions  or some combination of those factors
resulted in an incorreet .summary of Latifs wiords." Luiif,

Ne>t

Ex 130. Pq 9

SOUTHCOM/000163

 Ladf V. Obama, 677 F.3(l 1175 (2011)
400 U ST^pp.DX. 231
2010 If.S. Dist I.EXIS 83596. slip op. at 26. The court s
tntcrence wus insufficivnt to overcome the presiiinpituii of

admissions that (I) "Alawi talked about jihad" with Latif.

regularity Neither of tlie.<se alleged I1a\v!> in the Kepurt
proves the .separate statements connecting l.atil to the
Taliban are funtlantentally inaccurate.

"gave him weapons training." (4) the Taliban "put him on
the front line facing the Konliein .Alliance north of
Kabul." and f5) "(li)e remained there, under the command
of Atghan leader Abu Fazl. until 'i'aliban troops retreated
and Kabul fell."?  rcd:ictions  What series of innocent
statements could possibly have been so badly corrupted,
whether by misintcrpreimion or misironscr-ption? I.alif
does not suggc.sl malapropism.

 6  l.atif argues that the Report inissiaic.s whose injury
was the reason for the trip to Jordan Latif.s medical

records conflnn that Ycnicn*.s Ministry of Defense paid
for him to receive medical treatment * 1187 in Jordan for a

head injury. The Report says, "(l.atil'sl only previous
travel wtis to Jordan, accompanying ... a friend injured
during the Yemeni civil war, lor tiicdicul treatment of an
injury to his; h.ind."  rcdaci(aii$] (emphasis added). l.otif

reads "his" as n reference to his friend and points to thi.s
as proof that tjie Report is unrcliiiblc. But the pronoun is
nmhigouus—it tacks a clear antecedent, lite disirici court

seems to have been persuaded by hi>ih interpretations,
faulting the Report for referring to the friend's injury, not
Latifs; but also iissutniiig the Report referred to Latifs
hand, not his friend's. Sen Luiif. 2010 U..S. Dist. l.nXl.S

S3596, slip op. at 15. Whichever reading of the

(2) "Alawi look him to the Taliban." (3) the Taliban

The dissent suggests an elaborate game of telephone
b e t w e e n l . a t i f . o i n i n s l u t o r. a n o t e - t a k e r, a n d a

report-writer might have transmogrified hypothetical,
innocent contmcrtis about a charity worker, an Islamic
Center, an iinani. and three religious teachers into the
Report's inculpatory stalcmeiils about a jihool recruiter, a
wor-xonc tour of duty, a Taliban commander, ami three

Taliban fighters. Dissenting Op. at 1217-19. But as most
children would tell you. any giKul game of telephone
tequires more ih-an four participants to produce a result
dramatically different from the starting phrase. The

ambiguous scmcnce is rorrrct. any mistake, if ilicre is

dissent also fails to account for LatiFs incriminating

one. is consistent with a minor error in transcription or
pronoun u.sage. A nnlc-iakcr in the field cuuld easily have

Statements about being escorted to the Taliban and
receiving weapons tmiiiing. and docs not explain why. if
ihc.se inculpatory staiemcnts were produced by
guvemmcnl agents filling gaps in their comprehension
"With what [ihcy] expected to *1188 hear." iJ. at 1218.

misheard the translator and written "hand" Instead of the

similar-sounding monosyllahlc "head." We need not

consider whether the district court's speculation was
ek-arly erroneous, because neither a grammatical

those agents would invent the counterintuitive claim that

ambiguity nor a tangential transcription error is the .sort of

Latif "never fired a shnt" during his lime on the from
lines with the Taliban, [redacilonsj It may be possible (hut
the Report's incriminating admissions were all recorded

■'clerical errors" do not overcome the presumption of
regularity tliat attaches to a foreign Bosxnnmem's ta\
receipt); .reeoAo I'or/er v. SinfsL-iury. 49 F.3d 1483. 1488

by mt.stake while more innocent details, like the name of
l.a(iFs mollKT. his hometown, and the route he traveled,

fundamental ilavv sulTicient to overcome the presumption
of regularity. .Vce Rijifix S'ui t 295 T.Jd at 21-22 (holding

(11 th Cir. 1995) (holding on habeas review that a "clerical
error" "fell far short of otx'rcoming the prcsu-mption of
regularity" in n district court's crimiital sentence).
Iredactiun.s]

were (ranscrined accurately. But (he relevant question Is
whether that hypothesis Is likely. .Tee .•IJ-.4t64/((. 613 l-.,ld
■M I 110.

fhe quantum of incrintitialing detail in the Report could
hardly be produced by good-faith mistake, and we will

not infer bad-faith fabrication absent any evidence to thai

Neither of the flaws l.atif points to rcbuLs the presumption
of regularity. At worst. Ihcy suggest the pre.sencc of minor
tfaiticription errors. But lungenliat "clerical emifs" dti not
render a government document unreliable. Si-c Riggs

cITcct. The inconsistencies In the Report may suggest a
documcrti produced on lite field by imperfect translators
or transcriben. but they do not prove the Report's

Witt 29.S P,3d at 21 - 22 (holding ibai "nn Inconsistency

riindumenially uitrcliabhr.

that ntcrely calls into question the validity of an ofllclnl
document" docs not lebm the presumption of regularity).
It is almost inconceivable thai a sitnilar mistuke could

have resulted in the level of inculpatory detail conliiiiied
in the re.st of the Report. Consider l.atiPs reported

description of lottif's incriniinaiiiig statements is
(7  "J r he reliability of evidence can be dctcnnlncii not

only by looking at the evidence alone but. altcmatisely.
hy considering sulfieieni additional information

permitting the factfinder to a.sscss its rcljabllliy."

Me'/t

E*. 120. Pj. 10

SOUTHCOM/000164

 Latif V. Obama, 677 F.3d 1176 (2011)

400 U.S'App.D.C. 231
f. Ohama. 610 I'Jd 718. 72.<i 26

(O.C.Cir.2010). The only piece of cxirinsic evidence ihc
dixirici enurt relied on duei nothing to w-uakcn the

presumption of regularii}. The district court found l.aiif
was captured with medical records In his possession,

equipped them with such cover stories. Latit's medico!
records and Ins professed desire for medical ireaimcni ore
lliurefore consistent with the Report, not inconsKlcnt.
Crediiing those records does nothing *1189 to rebut the
Report's presumption of regularity.

based on a government document's st.itcmcm to that
ericci. The record contnins a medical benenis referral

Laiif cites one other piece of extrinsic evidence to

from Yemen's Ministrt' of Defense, a "medical report"

challenge the Report's reliability—the decision of the

from a Jordanian Hospital confirming that l.atif was
admitted in 1994 for a •'bead injurs-." and a rcpt>rt from
Yemen's Min-strx- of Public Health recommending in
IV99 (hat Uiif pursue further ireaiincnt at his own
expense. This evidence corroborates l-iilifs assertions

(redactions] Latifs conclusion docs not follow from his
prcmi.sc. jredactions) The other extrinsic evidence in this

about his medical condition—and iitcidciiinlly

case suppum. rather than undermines, the presumption of
regularity.

All of Latif s subsequent statements, including his latest
declaration denying much of the incriminating

corroborates the Report's description of his medical trip
to Jordan—but it does nothing to undermine the rcliahiliiy
of the Report, lite tiovcmment is tasked with proving

infunnation front his first interview, corroborate elements

[.attf was part of the Taliban or otherwise dctainabic- -not

additional details of the Report, though he ascribed an
exclusively medical purpose to his journey and

disproving Latifs asserted medical condition. There is no
inconsistency between Latifs claim that Ibrahim
promised him medical ireaitncni and the Report's

statement that Ibrahim recruited him for Jihad. Doth may
l*c tmc. For example. Ibmhim could hove proini.wd Lniif
the medical treatment he needed to induce him join the
Ta l i b a n .

of ihc Kcpon. In interviews (hat look place during Laiif.v
c o n fi n e m e n t a t C i n a n t a n a i n o . h e c o n fi r m e d s e v e r a l

disclaimed any involvement with the Taliban. In 2002. for
example, Lulif confirmed that he was from lidayn, that
his mother's name is Muna, and that he travelled to

Afgluinistan via Sann'o. Kiiraehi, and Quclta. as stated in

the Report. ISN 156 SIR (Mar. 6. 2002}. loilir repeatedly
confinncd that his only prior trip out of Yemen was to
Jordtin for medical treatment a unique detail Irom his

Such a recruiting lactic (or cover slors-) would fii the
ofh'rwidi of the man who rccruilctJ many of tiie
dciainces whose, inlerrogation reports appear in the
record. One man reported that he

Initial interview that the Report gels generally riuhl. Sue

id; ISN 156 I'D-.302 (Apr. 26.2002). The Oovct?^mcni's
documentation of the chain of custody for Latifs personal
po.ssessions confirms he was captured with four thoii.4nnd

Pakistani ntpccs in his pocket, as noted in the RcpO[l.K
was recruited by Ibrahim (Dalawi)
to travel to  Afghanistan] to senrc.'i
for a w tfe and jub. Ibrahim told hint

Many characters from the Report's dramatis pcrsonae

if he traveled to  Afghani.sian) he
the Taliban would provide him

playing diD'erent parts in his narrative with changes to the
spelling of their names. For example, the mysterious
Ibmhim appears as an itinerant charily worker, not a

with a hiiusc and income. Ibrahim

jihsdi recruiter, but his role is familiar. In March 2Q02.

would be able to find a bride and

reappear in Latifs subsequent interrogations, sometimes

also mentioned the jihad in

more than a year after the initial interview on which the

(Afghanistan!...

Report was based, l.atif cnntlrmcd that Ibr^im met him
in Yemen, convinced him to travel, reunited with him at a

IIR 6 034 036.1 02:  nfdactiunsj Anoihc.* detainee

mosque in Kandahar, hosted him there in Ibrahim's

"advised thai the reasons for going to Afghanistan were to
train to go to right in Chechnya and. sccondh, to

family home for three days, and llien took him t<i his next
destination in Afghanistan —ail details that al.<to appear
Ihc Kcpon.u I3ut Latif said his time In Kabul was spent

Immtgraic to Afghanistan." IIR *6 034 0861 02. Yei

another "said he was a >oung man with no future tvho
was tricked by Abu Khalud ('iruc name Ibrahim
A! -Biilawi']. who told him he could make money and
rind a wife In  Afclianistan ." Petitioner's Ex. 2. Ibnihim
appears to have fivqucnity oifcivd his recruits tangible
benefits in c.Nclmngc for lighting jihad, or at least
•

inemorixing the Koran at the instiiulc. nut iiuining fiu
jihad. ISN 156 SIR (Mar. 6.2002). In the same interview,

l.atif confirmed that he was guided over the border from
Afghanistan Into Pakistan by Taqi Ullah (not Taqi Allah
as the name was rendered in the Report), id. and hc
idvmified Abdul Fade! (not Abu I-a:tl) as the imam of the

Nest

Ex 120. Pg. It

SOUTHCOM/000165

 Utif V. Obama. 677 F Jd 1175 (2011)

400 U.S.App.O.C. 231

musquL* ill Kabul (not a ralihan commander). IJ.
Apparently these spelling dilTcrences are
inconscqucniial.io In March and April 2002
interrogations. Lmir identified Abu Bakr of the Arab
llminites. Awba (not Abu Hudayfa) of Kuwait, and Mats

court's decision to proceed without an explicit finding of

(not Abu flafs) of Saudi Arabia, among others. a.s three of
(he teachers wio stayed with him at the study center in
Kabul {not fellow Taliban lighters). (.atiPs many

on the inherent weakrtess of the Govemmein's evidence

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 creJibiliiy
determination is necessary because the district court relied
to discredit it. Nciihcr argument has merit.

siaicrncnts echoing clemeiiis of the Govcmincni's
evidence corroborate the reliability of the Report and.
together with the Report's iittrinsic indicia of reliability,
support rattier iluin rebut the presumption of regularity.

A

As we shall see. the distiict court's ambivalent rmdings
about Latifs current story do no better.

 8  the closest the district court's opinii>.-i comes to

* 11 9 0 I I I

making a credibility duternnnoiion is in ius .statements ih.il
Latifs sioiy was "plausible" and "not Incredible." Id. slip
op. at 26-27. A story may be "plausible" tvr •nut
incredible" and yet be very unlikely. C/. Uthman v
Ohuma. 637 F.3d 400. 406 (D.C.Cir.20lI) ("Uihman'.v

account ... involves many coincidences that arc perliaps
The district coun issued its decision in this case a week

after wc published our opinion in M-AJuhi r. Ohama.

possible, but not likely."). A judgment about credibitity.
by contrast, measures the truthfulness of the speaker or

613 l'.3d 1102 (D.C.Cir.2010). Wc observed that "[olne

the likelihood that what he says is true. See RICHARD

of the oddest things" about that case was that "despite an

HOOKKK. THH LAWS OF ECCLESIASTICAL

extensive record and numerous factual disputes, the
district coiut never made any findings about whether

Al-Adahi was generally a credible witness or whether his
particular explanations for his anions were worthy of

FOLITY bk. II. ch. 4. at 151 SI (George L'dclcn ed..
Harvard Univ. Press 1977) (1.594) ( "(Tjhings are made
credible, either by the known condition and quality of the
iiUerer. or by die manifest likelihood of truth which Ihcy

belief." IJ. at 1 i 10. The district court's analysis in this

liave in ihcmsclves."). Thus, neither of the district court's

case suffers fjpom ilte same omission. Because (he court

slaicmems is equivalent to a finding :hal {.atifs

relied in port on [.alifs declaration in discrediting the

declaration is marc likely true than false. On this, wc ore
all agreed. See Dissenting Op. at 1189.

Report, sec l.arif. 2010 U.S. Hist. l.liXIS 83596. slip op.
at 26 ("{I'lhc Court cannul credit (the Report) because ...
Latif has presented a plausible alternative story."}, the
dlslrki court was obligated to consider his credibility.

Only Q credible story could ovcreuntc the presumption of
regularity to which the Rcpon was entitled, flic court's

failure to make a crcdibilitv finding is especially pua/.l'mg
where the inculpatory and exculpatory versions of the
dclainee'.t story overlap so that the factfinder is forced to
untangle the detainee's current story from the shared

framework of a prior narrative. Iivcn doling Uncle Henry
munaged to evaluate Dorothy's credibility when she
priviiixsei] that the faniily and fViends gathered around her

Uy definition, a "pkiusiblc" statement is oiic ".w/miiic

rcdsimablc. probable, or truthful"; it may in reality have
only "a false appearance of reason or veracitv." OXFORD

ENGLISH DICTIONARY ONLINE. hit'p://www.oed.

eora'v'ww.linlry.'l4.5466 (definition 4.a) (emphasis added)
(last visited June 16. 2011). A plausible cxplanaiion does
not iiecc.ssarily compel credence. .S'l't* '/.timmuv v, Htdder.
649 F.3d 969. 974 (9th Cir.2011) ("[Pctitioner sl
explanation ... la plausible. However, the record docs not

compel the finding that the [Immigration Judge's!
unwillingness to believe (his c.vplanalion *1191 .. was

bed had been with iter in Oi. Si-e THK WIZARD Of OZ

erroneous."}. It is when a detainee tells a plausible story-

(MOM 1939) p'f)f rourse wr believe you, Dorothy.").

thai an evaluation of his credibility Is most needed. There

The district eocn. by contrast, mustered ontv a guarded
finding of plausibility. See LatlJ. 2010 U.S. Disi LEXIS

may he several plausible c.xplanaiions for (.atifs
itinerary; it is the district coun'sjob to decide whether the
Government's explanation is more likely than nw. See
.ll-Aduhi. 613 l-'.3d ul lliO ("Valid empirical proof

83590. .slip np. at 26.

Latif make.s iwu main arguments In defense of the district

requires not merely the eslabiishmcni of possibility, but

Ex. 120. Pg. 12

SOUTHCOM/000166

 Lalif V. Obama, 677 F.3cJ 117S (2011)

400 U S AippD.C. 231
an estimate of probability " (quuimg DAVID HACKI-.TT
K I S C H M R . H I S T O R I A N S - FA l . l . A C i r. S : T O W A R D A

LOGIC or HISTORICAL THGUOIIT 53 (1970))).
Likewise, to say LaiiTs talc is "not incredible" is not to
imply its teller ought to be believeil. At best, the district

plausibility finding: "Latif asserts that be did not make the
statements, and his suggestion that niistranslaiion or
misiittribuiion likely explain the indication that he did is
plausible." Id The district court clearly retied on (.aiiTs
alternate account of his trip as one basis for rejecting the
Report.

c o u r t ' s s t a t e m e n t n t c a n s a r e a s o n a b l e fi n d e r o f f a c t c o i i h l

believe l,aiit's story, not that lie has actually done so. Cf
Unitvd Shiifn v ftofu/i'n. 420 r2d 2JI. 25.'

(r).(.'.Cir.l969) ( "The appellant's .story wa.s not
incredible: indeed, the jurs' seems to have accepted it, at
least In part.,.,"). DiRercnt factlinders may come to
different conclu-sions about whether to credit evidence
iliai is "not incredible" as a matter of law,

Other statements in the district court's opinion conlimi
llial it did not reach u decision on l.oiirs credibility, l-'or
example, the coutt reicctcd the Government's "contemlun

that Latif wiwrbe lying," Laiif. 2010 L'.S. Disl. LEXIS
83596, slip op. at 27 (emph.asis added), while assiduousis
avoiding any celcrminaiinn thnl Latif was nat lying. The

 9  True, the court cited problems with the Report itself,
including its substantial redactions, (redactions) its
reference to Lalifs "liand" instead of his head injury,
[rcdnctionsj and the perceived lack of corroboration. But
the Report was nut so inhcreiuly unreliable that it could
he discorded in the absence of countervailing evidence
olTering a rmmc likely explanation for Latifs travels. .9lv
iuprii pp. 20 31. And Latif offers no evidence to rebut the
Government's presumptively reliable record aside from
his own statements and the Repon itself. A merely

"plausible" e.xplanalion cannot rebut the presumption
• 1192 of regularity. Sec Rinpx ,Vur l. 295 l',3d at 21, The
other two grounds I'or the court's decision minor

i n h i * sta i e me rt* "mm- h e i h i - re su l t o f a mi ssta rcmc n l u r a

truiuscriplion errors in the Kcpuit uiid a lack of
corroboration for its incriminating statements- -do not
snlbrv thai slandunl. As wc have already discussed, see

mistranslation." withitui ever making a finding to thai

supra pp. 31 27. the mistakes in the Report provide no

coun speculated more than once t)iat the inconsistencies

elTcct. Id. slip up. at 27 (emphasis added); id (*'The
smaller incnnsisieiieies ... nun- fv no innre than

misstatements or mistranslations" (emphasis added)).
Likewise, the court found that "Lalif did have an injury ...
for which he w/ghr ihercl'orc have sought treatment." IJ..

slip op. al 28 (emphasis added): .tee ulso id, slip op. ni 6

n.4 (citing LatiTs "aiiemativc explanattim for not having

his passport at the lime he was seized." without deciding
whether that e.xplanaiiun is more likely than the
Govcmmcnl's incriminating explanation). The district
court provided no indication that it actually believed

LatiTs story and instead noted the story 's "inconsistencies
and unanswered questions." Id, slip up. at 27.

B

The district ci?un'$ decision gives us no reason to believe
it would have reached the sume result had it not relied on

l-niiTs "plausible" version of the relevant events. 1hc
court said h could not "credit" the Repon's inculpatory
statements, partly "because ... Lutif has presented a

plausible nltcrrativc story to explain his travel." Id. slip
op. at 26. Instead of advancing from plnusibility to a
judgment about IjUiTs veracity, the court repealed its

support fur the much more extensive fabrication Latif

alleges And to the extent the district court relied on a lack
of corroborative evidence to discredit the Report. It
highligfrlcd its failure to afford the document a
presumption of regularity. By definition, a presumptively
reliable record needs no additional corroboration unless

the presumption is rebutted.) I Because the district court
only found Latifs story "plausible." not credible, the
court merely established the possibility, not the
probability, that Latif s story was true. And without a
"comparative judgment about the evidence." there is no
finding of fact for this court to review, Af-.-tdahl. 613
T. . l d a t I I I O .

By forgoing d determination of credibility for one of
pliiu.sibiliiy, the distrlel voun replaced the necessary
factual finding with a legal conclusion that some other
reasonable facifimicr might believe Lutifs siory. In other
words, the district court look on the role of a reviewing
court, assuming in efTect that Latif already had been
found credible and then applying a deferenria) standard of
levicw 10 thai linuginarv fiiiding. C/ .-twael. AOS F.3d at 7
("[l f the districi court's account of Ihe evidence is

plausible in light of Ihe record viewed in its entirety, lite

court of oppcals may not revcnc it."). VVc cannot allow

the disirici court to bypass its factfinding role in favor of
an appellate standard of review. Cf. Unitrd .'itarts r.

Ex. 120. Ps 13

SOUTHCOM/000167

 Utif V. Obama. 677 F.3(l 1175 (2011)
400U.S.App.D.C. 231
A n d e r s o n . 6 3 2 F. 3 d 1 2 6 4 . 1 2 6 9 7 0 { l ) . C . C i r. 2 0 11 )

(noting that the district court may nut apply the appellate
court's standard of review in cratling its own sentence).

And since -th nmit lanrinding is inconsistent with [an
appellate court's) proper role." United Snties

prosecutions and is not directly relevant to ilic habeas
setitng."). Especially where a detainee's own self-serving
Jtaiemcnis comprise the only evidence against the
Government's case, his refusal to testify is relevant to the
district court's credibililv determination.12

BrockenhorruRh. 575 J'.3d 726. 746 (D.C.Cir 2009), wo
are at an impasse.
In sum. the district court's Tailurc to resolve the key

quc.siinn of  ihc lead witness's) credibility mako.s it
impossible for us to perform our appellate function.
•'The purpose of an appeal is to review the judgment of
the district court, a function we cannot properly

perform when we are left to guess at what it is we are
reviewing." We therefore vacate the di.slrici court's

order and rcntand tor further proceedings con.sistent

with this opinion.

I V

 )3  " A  court considering a Guontanamo detainee's

habeas petition must view the evidence collectively rather
than in isolation." Satalii v. Ohuma. 625 F.Jd 745, 753

(D.C.Cir.2010). A habca,s court's failure to do so is a legal,
error that we review lA' separate and apart from the
question of tvhciher the resulting findings of fact are
clearly erroneous in themselves. See Al-.idahi, 613 l'.3d

U n i t e d S t a t e s v. U . d m e s . 3 8 7 f \ 3 d 9 0 3 . 9 0 7 - 0 8

nt 1111 ("[I'lhc district court clearly ctrcd in its trcattncnt

(r).(.'.Cir.2004) (quoting United State.* v. WilUamx. 951

of the evidence and in its view of the law. rhc court's

l''.2il 1287, 1290 (D.C.Cir. 1991)).

conclusion was simply nc>t a permissible view of the
ev idence. And it reached this conclusion through a series
of legal errors."). Under .•U-AJahi. a detainee is not

jlOj (11) On remand, the district court may consider any

eiiiiiled to habeas just because no single piece ofcvtdence
is sufticient by itself to justify his detention. 613 K.3d at
1105-06. It follows that a habeas court may not ignore
relevant evidence, for a court cannot view collectively

relevant, admissible evidence *1193 to aid its evaluation

evidence that it has not even considered.

of LatiPs credibility. If I.atif again decllne.s an
opportunity to testily-, (hat is another fact bearing on his
credibility. Although the district court's factual flndings
may be suppnned by documentary evidence no less than
by oral icstimimy, see BaHttmmi, 609 F.3d at 423- 24, a
civil party's decision not to tcsli5 ntay support an

Perhaps Itecause it had already denied the Oovcrnment's
key cvidimcc a presumption of regularity, the district
court committed both errors, explaining away some of the
iinlividual coiitiadictions and coincidences in l.atifs story
one by one. as if each stood alone, and ignoring other

C

adverse inference obuut Ills cicJibility. .vt-c .\Hitheit v.
Utiited States. 526 U.S. 314. 328. 119 S.Ct. 1307. 14.3

L.l:d.3d 424 (1999) ("The Fifth Amendment docs not

probative details ulttigclhcr. In Al-.tdahi. wc reversed the
district court's grant of habeas because the coun had

failed to consider all the evidence in context. Viewing the

forbid adverse inferences against parties to civil acii(>n.<i
when they refuse to testify In response to probative
evidence against them."). Laiif argues "it would make no

evldettce as a whole, we concluded the Government Inid

sense to require an adverse inference in habeas eases in
which (he petitioner declines to lestify while prohibiting

iillimaie conclusion on the merits in this case, the district
court's similar rreaiincnt of the evidence in this case

such inferences in criminal cases." Appellee's Qr. 52.
rhis neglects the cnicial point that the rule fur criminal
cases is based on the Fifth Amendment privilege against

scir-mcrimination. See .itiiehell. 526 U.S. at 316* 119

S.Ci. 1307. Tha: priviicgc has no application outside the
criminal conlexi, and a Cuuntanamo habeas petitioner is
not entitled to the same constitutional safeguards as a
criminal defendant, cy .ll Bihani. 590 F .ld nt 879

("fTjlie Confromaiion Clause applies only in criinlniil

proven the detainee "was more likely than not p-vt of
al-Qaida." fd at 1111. Although wc do not reach an
provides an aliemativc basis for remand.

*1194 rhc district court's unduly atomized approach is
illustrated by its isolated treatment (or failure to consider)
several potentially Incriminating inferences that arise

from evidence Uiif himself offcits in suppon of his
petition namely, (a) striking similarities between l.atir.s
c.xcu1patory story and the Report, (b) the route I.atif
admits traveling, and (c) conirudiclions in LatiFs

• Nsvt

Ex. 130. Pg. 14

SOUTHCOM/000168

 Latif V. Obama, 677 F.3d 1175 (2011)

400 U.S App;D.C."231
excuIpaior> statcmunis. In uddition, ihc dislnct court
iinpropcrl} declined to consider fredactlons] We lenve to

Nor did the district court consider that Lalifs admitted
route to Afglianistan from his home in Yemen

t h e d i s t r i c t c o u r t o n r e m a n d t h e u n fi n i s h e d t a s k o f

corrobonties the evidence that Latif trained with the

weighing tlris evidence In the aggregate.

Talibon. We have held that "traveling to Afghanistan
along a distinctive path used by al Gacda members can be
probative evidence llial the traveler was part of al Qacdu."
UihiiMi. 637 F.3d at 405 (citing.4/ OJoh. 611 H.3d at 16).
Al Guanianamo. more than a year after his capture, t jtif
told his intcrmgaiors he (lew from Sana'n. Yemen *1195

What makes l.aiifs current slor>' so hard to swallow is
not its intrinsic Implausibiliiy but i\s coircspondoncc in so

man)' respects with the Report he now repudiates. Like
Dorothy Gale upon awakening at home in Kansn.s after
her ranlasiic jourttc)' to the Land of 0/. l.atirs current
accoimi of what transpired bears a striking rcseitiblancc to
the familiar faces of Ins former narrative. .See THE

WIZARD OH OZ (MGM 1939). Just as the Gales'

farmhands were iransl'omicd by Dorothy's iinagination
into the Scarecrow. Tin Man. and Cowardly Lion, it is at
least plausible that [.atif. when his liberty was at stake,
ininsformcd his jihadi rccriillcr into a charity wwkcr. Ills
Taliban commander into an imam, his comrades-in-nrms

into roommates, and his iniliury training camp into a
center for religious study. Although the cou/1 noted
Latirs "iimoceni explanations for the names that appear
in the (Reponl." Luii/. 2010 U.S. Disi LEXIS 83396. slip
op. ai 15. and addressed them one by one. the cuun tailed
to consider the cumulative effect of all these uncanny
coincidences as our precedent requires. See Uilunun, 637
t'.3d ut -107 (concluding a delainec'.s account thui "piles
coincidence upon coincidence upon coincidence ... strains

credulity"). Really, how likely is it thai Lolifs charily
worker and imam just happened to have names virtually
i d e n t i c a l t o t h o s e o f a k n u w n Ta l i b a n r e c r u i t e r a n d

commander?

to Karachi. Pakistan in early 2001 with a plane ticket
Ibrahim gave him. From there he took a bus to Qucita.
Pakistan and a taxi to Kandahar. Afghanistan as Ibrahim
had instructed. Then Ibrahim took him by taxi to Kabul,
where Latif said he spent live months in the religious
study ccnicr.i-i This route has been well traveled by
at-Qaida and Taliban recruits and by our precedent. See

Wihman. 637 F.jd at 405 (noting that Lithman's route
from Sana'a to Karachi by plane, from Karachi to
by bus. from Quclia to a Taliban olEce by taxi, and from
there to Kandahar "is similar to the paths of .idmiltcd al

Onodu members"); .-If OJuh. 611 F.id at 10. 12 (noting
iliat a similar "route used by al Odah was a common
travel route for Itiusc going lu Afghunisiai) to join the

Taliban"). The record in this case is replete with
liilerTCigation summaries of other Yemeni detainees who

followed the same route w Afghanistan, instead of
focusing on Latifs route, the disinct coun obsere-ed that

" n o oilier detainee told interrogulors that be lied from

Afj^anistan to Pakistan, from Tora Bora or anv other
location, with Latif." /.u/i/ 2010 U.S. Dist. LHXI!i'83<96.

slip op. at 26. Thai is true. But (lie court overlooked the

implications ofl-otirs own .subsequent admissions about
the route he traveled.i.< This is relevant evidence, and it
should have factored into the district cniin's ilccisinn The

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

In discrcililiiig the Report, the district court cited Utifs
'plausible" suggestion that tlie incriminating smtenicnis in
the Report are the result of niisattribuiion.U Uiii/. 2010
U.S. OiM. I.GXIS 83596. slip op. at 36. Dut Uiifs own

C

insistence (or self-serving voitc'/inv } is his only evidence
liial the incriminating staicincnLs arc inaccurate,
jrcdaclionsl 'those iiicriininaling admissions arc
imertwincd with other details in the Report that persist in

Latlfs current version of his stoo" confticis in significant

Latlfs ctirreiit eccoum of his travels. The district court

the Report "having taken into consideration ihe
explanation of events Latif has offered" and even noted

makes no efToit to untangle that knot.

ways with other things he is rcponed tn tiave told

intcn'oeators al Guantanamo. The district court rejected
some of (he "inconsistencies and unanswered questions"
in Lolifs story, id. slip op. at 27. 't his is n welcome step

B

toward the hoiisiic approach tn the evidence we called for
in a! .AJahi. But as with the other evidence, the district

Ex. 120, Pg. 15

SOUTHCOM/000169

 Latif V. ODama. 677 F.3d 1175 (2011)

40bu.S.App".b7c~"231
court examined some contradictions in isolaiian from iIk-

83596. slip op. at l.i. but only to cast doubl on the

rest of (he evidence and overionked others altogether.

accuracy of the Report. (Since Latif has offered no

evidence aside from his own statements lo prove his
fhc court gestured obtiqucU to what it cliamctcrircd u.s

inariial status, it is not clear how the disUici court

"smaller iitconsistcncies" thai it concluded "may be no
more than mLtstaiements or roisiranstations." /</.

resolved this conllici in his favor, absent a civdibilhy

Apparently, the court found it unnecessary to get to the
Ixittom of these contradictions because "even if some

determination.) The court failed to consider that Latifs
current declaration also condicis with his Guamonamo

details of Lalifs story have changed over time, for

intake form, which iitdicaies he is divorced, and with his
statement to an interrogator in June 2003 that he "would

uhatever reason, its hindamentals have remained the

like to gel married and have some children." ISN 156

same." W. (The district court did itot apply similar

Ml-R (June 4.2003). Both of these statements corroborate

reasuning to the Oovemmeni's evidence. The Report
contains two minor discFcpancics bur its fundamentals

the Report and cast doubt on (jtifs recent declaration.

have been corroborated time and ag.nin.) Applied lo

The court failed even lo mention other incongruities
among (ho stories Latif has told his inleirogalors. [.atif
has said that he stayed with a doctor in Kabul, but also
that he stayed In a religious study center there: that Latif
%v(is arrested at the Pakistani bonier ticcing Afghanistan,
but also that he was arrested at a hospital in Pakistan: that

l.atifs contradictory statements, the di.striet courts

reasoning neglects "the well-settled prittciplc that false
exculpatory statements arc evidence—ulten strung

evidence of guilt." M- Adahi. 613 1-.3d at 1107. Thus,
even if u givctt inconsistency in a detainee's story doc.s
not go to the central question of his involveineni witli the
Taliban or al-Qatda. it may be relevant noncthelvss lo the

court's cvoluatlon *1196 of his credibility, which in turn
hears on lite ivtiahiliiy of the Covcmment's evidence. Cj
United State* v. Philatelic Leaung. l.td, 601 F.Supp.
1554, 1565 (S.D.N.Y.I'«S) (citing the principle, "which
Wigmom has described as 'one of ihc sitnplcsi In humun
c.\pericncc.' '' that "when a litigating party resorts to
'falsehoods or other fraud' in lo'ing to establish a
position, (he court may conclude the position to be
without merit and that the relevant facts are conlrary to
those asserted by the party") (quoting 2 John Henry
Wigmorc. l-videncc g 278, at 133 (1979)).

he p.iid for his medical trcsitmcm. but also that he could

not pay; that Ibrahim's charitable orgnitiTailon is called
Jamial an-Nur. but also that is call Gameiat al Hekma or.
uliornaiiwly. Jam-eiah Islam. Rvcn if some of the

inconsistencies in Latif s story "may be." as the district
court suggested about others, "no more than

misstatements or roisiraiislations." Latif. 2010 U.5. Disi.
LKXIS 83596. slip op. at 27, viewed together with the rc.si

of the evidence they undcnninc the credibility of Latif s
declaration. "We do not say that any of these particular
pieces of evidence are conclusive, but we do say that they

add to the weight of the government's case against [the
detaincel and that the district court clearly erred in tossing
them asidc.".-l/-.T</(i//j/. 613 F,3d at 1110.

Many of ihcsc "smaller Inconsislenclcs" shore up dcttiils
in the Report in ways Ihc district court overlooked. The
court observed, for example, that in LallTs 2009
declaration (in which he claiined to be too disabled to

nghi) l.atif said he "spent three months at the kslamic
Jordanian Hospital hi Amman, Jordun," Petitioner's Duel..

D

 rcdaetioiis)in

*, 3. but ills own medical records reveal that he was

released just five days aRer admission. The court made no
explicit finding about ihc source of this inconsistency, and
it failed to mention that Latif himscir tcslitlcd before the

*1197 E

Combatant Status Review Tribunal that he was "ircaied...

for five days," ISN 156 CSRT Tr. at 8. a fact thai is surely
relevant to the ereiiibility of l.aiirs reccm dechiratioii.

Although Latif now says he is married and has a son.
Petitioner's i>cl.. T I the Report indicates l.atif is
unnmtried and has no children.  rcdactions  The court
noted this inconsistency, Latij; 2010 U.S. Disl. LliXIS

In a recent vase, wc held "the location and date of (the
deialncc's) capture, together with the company he was

keeping, strongly suggest tliat he was part of al Oavda."

Uthman. 637 F.3d at 405. The YcnKni detainee in that

ciwf was captured in December 2001 with at least five

other Yetiicni men. two of whom were confessed al-Qaida
member.':, at the Aighan-Pakisiani border near Torn Bora,

fMen

Ek. 120. Pg. 16

SOUTHCOM/000170

 LaUf V. Otiama. 677 F.3d 1175 (2011)
400 U.S.App O.C. 231

a CB\*e complcv in I-'astcrn ATghanistan (hat \va5. at that
time, the site of a battle between al-Oaida anU the United

States. Id. Analogous details in the circumstances of
Latifs tmpturv should have been weighed in comhinaiion

considering his route in isolation and ignoring the
similiirly situated detainees' altogether.

with the rest of the Govemmeni's incriminating evidence.
F

I.Htir admits that he was captured in "hue 2i)(ir' aOer
being led across the Afghan border into i'ukisiaii.
Appellee's Ur. 7. and he confirmed to his Ciiiantannino
inicrrogatonc that an Afghan guide led him across the
btirdcr. 1°hc record contains no direct evidence about
I.atirs route from Kabul to the Pakistani border. Hie
district court noted that around that time, "after the

Taliban was defeated in the battle" noitb of Kabul, "many

fighters went to Jalalabad. Afghanistan, moved on to the
Tora Bora mountain area.... and followed guitles across
the border into Pakistan." Uvifimn U S. I3ist. LEXIS

83596. slip op. at 12. But the district court concluded "the
timing of (Ulirs] dcponurc from Kabul is tint xxtfficwm
to create an inference that he was involved in fighting "
Id. slip op at 27 (emphasis added). This is e.saclK the
formulation vvc criticized in .Al-Adahi. in that case the
disu-lci court concluded "Al Adnlii s oncndancc ai an

al-Qaida training camp *is not sidiitieiir to carry the
Govcmment's burden of showing that he was a pan" of
.il-Qaida." 61.I l-..3d at I lO.s (emphasis added). We cited
that siaicnicnl as an evample of the court's liavliig

"uTongly 'rei(uircd each piece of the gosernmcni'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 .iiid place of
L.atit*s capture in ItulaiMin fmin the rest of the uvidenee.
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 of the cvidaice.

tlicy make that conclusion more likely than not.
Ircdactionsji'?
The dissent admits the circumstances of Laiifs Bight
from Afghanistan are helpl'ul to the Govcnimcm'.s case,
but contends they may nut be vere lielpful since, for iill
wc know, his route was frequented by non-coinb«laiiis
too. Dissenting Op. at 1222- 23. ritis boW speculation is

beyond our purview as un iippellate euuit. lUid tlic distriLi
court did not suggest it had so much as considered the
possibility. (Indeed, the record coiuains no evidence lu
support the disscnt'.s theory.) Al this junaorc. all we eun
s;iy is thai the location and timing of Latif s exodus is
relevant evidence, and the district court erred by

■ o summarize, in addition to viewing Latifs msn
siaturncnis in isolation, the district court ignored the

probative value of (1) Latifs familiar, four-leg route to
Ka b u l ; (2 ) L a ti fs C SRT i csri mo n y ti ti i l i e w a s

hospitalized for just five days instead *1198 of three
months as he now claims: (3) Latif-s statements at

Guaniannmo that he is divorced and would like to get"
married, which corroburtile the Report and conBict with
his current story: {redactions) and a host of other

inconsistencie-y. One cannot gather from a fair reading of
the district court's opinion that any of these facts
informed

its

conclusion

about

the

Govvmmcnfs

evidence. In light of our application of the presumption of
reguloriiy. there can be no question on remand but that all
of this evidence must be considered- -and considered as n
whole.

riie dissent makes much of the fact that, contrary lo the
usual practice, we do not a.ssuine the court considered all

the evidence it failed to mention. Disseming Op. at
119? -06. If that is true, the result Bows from the unusual

posture of this case. Even in the typical be-said'shc-said

case ill which two people provide conBicting
statements the court inu.st conduct a close and precise

balancing of the evidence to reach a valid result. In
detainee eases the dilTicultics arc heightened because it is
u tie-sttid/be-said case -the same person provides both the
incriminating and c.\culpatnry .statumeins. 'thus the .41
.■idithi formublion becomes critical.
The district court's failure to address certain relevant
evidence leaves us with no confidence in its conclusions

about the evidence it did consider. For e.xaniple. the
district court implicitly rejected evidence that Latifs

purported benefactor. Ihr^im AI-Alawi. is actually
Ibrahim Ba'alawi. knowrt as Abu Khalud. an al-Qaida
f a c i l i t a t o r. O t h e r d e t a i n e e s h a v e d e s c r i b e d I b r a h i m

Ba'alawi in much the same role Ibrahim AI -Alawi plays

in the Kepoit. Several detainees reported meeting Ibrahim
Ua'alasvi in I'atz, Yemen, near Ibb, which the Report
describes us Ibrahim Al Aiawi's hometown, and being
recruited by hint to tight jihad. They report that Ba'alawi
arranged their travel along the same route l.aiif look to

Nszt

Ex. 120. Pg. 17

SOUTHCOM/000171

 Latif V. Obama. 677 FJJd 1176 (2011)

400 U.S.AppioTc. 231
Arglisnision. lived in Kandahur as [^tiPs benefactor did.

and arranged for their aitcndanec at miliurv- imining
camps. Although noting the similarities bcrvvccn Ibrahim
Da'alawi and the Ibrahim AI AInwi who appears in
LuiiPs current sior> and the Repun. the district coun

implicitly concluded they were dilTcrcnt men on the ba.sis
of c.xculpator>' statements Lniit' made after hi.s initial
interview. Lotif makes much of the rnci that Al-Alawi is a

dilTcrent name from lki*ylawi. not just n variant spelling,
and at least seven detainees reported their recruiter's
name as Ua'alawi or some variant thereof. But such u

minor phonetie rnislake could ca.sily result Imm a
translatioii or transcription cnor.ix it docs not negate
altogether the probative value of this link between LatiPs
current story and a known recruiter whose muthis

ti/tenmtii matches up so closely with the Report's nccouni
of UaliPs recruiter. The district court Implied LatiPs
benefactor was a dilTcrcni person rrom the known jiliadi
rccruticr, without ever (Indlne that to he so.
Bvcn if tlie district court had made a clear finding in
LaiiPs favor about Ibraliim's identity, wc could not alTirm
it Oft lids record. Since the prs>bability uf one Hssenud fuel

is conditioned upon the likelihood that related facts are
true, we cannot uphold the district court's evaluation of a
particular piece of evidence that is susceptible to

As the dissenters warned and as the amount of ink spilled
in this single case aite.vis, Hniimediene's airy suppositions
have caused great difficultv for the l-lxccutivc and the

courts. See U S. at 824^26. 128 S.Ct. 2229 (Roberts.
C.J.. dissenting): id. at 827-28. 128 S.Ci. 2229 (Scalia. J.,
dissenting). Luckily, this is a shrinking category of cases.
The ranks of Guantanamo detainees will not he

replenished. Bnamcdivne fundamentally altered the
calculus of war, guaranteeing that tite benefit of

intelligence (hat might be gained even from highwalue
detainees is outweighed by the systemic cost of
defending detention decisions, td. at 828. 128 S.Ct. 2229
(Scalia. J., dissenting). While the court in BuumeJienv
expressed sensitivity to such concents, it did not find
them "dispcsiiivc." id. at 769. 128 S.Ct. 2229.

Oaumedieite'i logic is compelling: lake nu prisoners.
Point taken.

In light of the district court's expertise as a fact finder and
judge of credibility. I am reluctant to reach the merits
before the district court has had an opportunity to apply
the comrolJing precedent. But Me Concurring Op at 1205
("[I'jurthcr factfinding will be a waste oftime and judicial
resources."). We therefore vacate and remand the district

court's grant of habeas Ibr further prucccdlngs On
remand the district court must consider the evidence as a

On remand, the district coun has an opportunity to

whole, bearing in mind that even details insufTicicntly
pmbutlvc bv' themselves may tip the balance of
probability, that false exculpatory statements may he

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

evidence of guilt, and that in the absence of other clear

another appeal following that evaluation, wc would have

evidence a detainee's self-serving account must be
credible—not just plaasible -to overcome presumptively
reliable government evidence.

more than one interpretation when the coun has ignored
related evidence.

to decide whether, in light of all the evidence, wc arc lell
with "the definite and ftnn conviction that a mistake has

been committed." Alwer/eJL 654 P.3d at 9. In Us current

po-sture. this case dnes not require us to answer that
dilTicult qucstioi.to

So ordered

KARFN lyKTRAFr HKNDER.SON. Circuit Judge,
concurring in the judgment:
V

Although I agree with Judge Brown's analysis and
ibcrcfatv: concur in the Judgment of remand. I write
separately to respond to the dissent and to explain that, in

Although the district coun committed the same errors
here as in At Adahi. the evidence befiire us presenn a
closer question then we faced in thai ca.sc and our

my view, the bcucr course would he to simply reverse the

subsequent reversals. ('/. Almerfedl, 654 h'.3d I: Uihman.

detainee Adnaii Farhan Abd AI Latif. 'I'he dissent attacks

637 F.3d at 460. And the Government says it has
discovered new evidence pertaining to the origins of the

district court's gram of habeas corpus relief to the

*1200 Judge Brown',s majority opinion on three grounds.
The first two grounds arc related: the dissent claims that

Repon that neither the district court nor our coun has had

there is no cle.tr error in the district court's opinion.

occasiun to consider.

I7is.sentiris Op. at 1206 07. 1216-27 and that we have

arrived at the contrary conclusion- finding clear

Ex, 120.Pj.18

SOUTHCOM/000172

 Latif V. Obama, 677 P.3d 117S {2011}

400"U.SApp.D.C.231 " ~
error—only b\ "undcrtak(ing  u xnIioIosuIc revision of liie
district court's careful fact llndings." and "suj^cstflnfl
four] own story," Dissenting Op. at 1206-07, 1221- 22;
H'l! id at 1221-25. As discussed below, however, the
dissent misunderstands the clear error standard of rcvicw

and its application to this case. The dissent also claims
that our use of tlic presumption of regularity "moves the
goal posts" aitd "calls the game in the govemnieni's
favor." Dissenting Op. at 1206-07. 121.5-16. As also set
forth below. Iiowever. the dissent's high-pitched rhetoric
not only ignores the safeguards under which we huse
already endorsed albeit not explicitly- -the presumption
of regularity but also fails to understand how- the
prcsumpiion of regularity In fact aids the reliability
Inquiry nfbearsHy evidenee. Kinally. I believe remand for
further faciilnding will be a pointless exercise. Assuming
he decides to tesiif), Latif cannot persuasively counter the
presumption of regularity. Nor can he overcome the lung
odds against his exculpatory narrative by testifying, as Ills
declaration already tells his story and any embroidery
thereof will only work against him. Accordingly. I concur
in the remand judgment only.

iinuing Ihc various accounts olTered into evidence is

qiiintessentially a matter ... for the district coart sitting as
llie fact-finder." MMaJhwani v. Ohama. 642 r.3d 1071.

1076 (D.C.Cir.2011) {internal quotations oiniiied). See
Disscmliig Op. ill 1216. 1221. But the dissent apparently
forgets that the quoted pa.ssages describe only ilic starting
point for clear error review. Granted, the district court has
wide latitude to rc-solvc factual dbputcv-hut only within
ecriain bounds. Wc must assure ourselves that the district

coun's finding is "pemiissibic" or "plausible in light of
the record viewed in its cmirctv." Anderson, 470 U..S. at
574. 105 S.CI. 1504. lnboth.4M«(/and.4/-A/.«//nvuw. wc

examined the evidentiary bases for the district court's

factual findings and. finding them within the range of
"permissible" inferences to be drawn from the evidence,

concluded that the district court had not clearly erred. See
.■{wad 608 F.3d at 6-9; Al-.Uadhwani, 642 F.3d at 1076
Dm in both .twuf/and .Al-Madhwani. unlike *1201 here.

Ihc district court's permissible inferences were based on
the rccurd in its entirety not on the view that one side's
evidence, standing in Isolation, is plausible.
I'he dissent seems to suggest that if LalH's story "un iis

own icrmsl j is not 'inirinsic[all>  implausible,' " then we
cannot review the district court's evaluation of the
I.

gtwcrnincnt's key piece of evidence or other pieces of

evidence. Dissenting Op. at 1220 21. 1221 22. It is not
This appeal hinges on one quc.stlon: did the district coun

correctly find the government's key piece of evidence
unreliable? See AMah v. Ohamu (Lalif). No. Oa -HS-i,
2010 WI. 3270761. at *9. .slip op. at 25 (D.D.C. Aug. 16.

2010). "The question whether evidence is sulTicicnily
mliable to credit is one we review for clear crroi." AfAfwi
r OhmiA 653 F.?d M. IV (D.C.Cir.2t) 11), and ordinarily
this standard ofrcvlcw cn.>atcs little controversy.

lite clear error siandani requires us to reverse a factual
finding if" 'on the entire evidence" " we arc " 'left with
the definite and firin conviction that a mistake has been

committed.' " Anditnuin v City vj Oessemvr. 470 IL.S.
564. 573. 105 S.Ct. 1504.84 L.Hd.2d 518 (198.5) (quoting

UtiiU'iiSlates v. U.S. Cypsum Co.. 333 U.S. 364, 395. 68
S.Ct. 525, 92 l„E;d. 746 tIV48)). The dissent first claims

that we cannot legitimately find clear error here, relying

on our precedent that "Iwjhcre there are two permissible
views nf the evidence, the rnctfindcr's choice between

them cannot be clearly erroneous." Awad v. Ohama. 608
F.3d I. 7 (D.C.Cir.2OI0) (Inicmal quotation.* omiltcdl.
eert denied U.S. -. 131 S.Ct. 1814. 179 Ll-;d.2d

773 (2011}, and that "ftlhc task of resolving discrepancic.s
.

.

enough, however, for the dhlrict court to base iu factual

findings on some evidence in the rccurd. The clear error

.standard authoriMS us to reverse n finding, not unless, but

" 'alihniigh there Is evidence to support It.' " Anderson.

470 U.S. at 573. 105 S.Ut. 1504 (quoting US. Vypsum
Co.. 333 U.S. at 395. 68 S.Ct. 525) {emphasis added): see
oho Eastev v. Cromurtie, 533 U.S. 234, 257. I2l S.n.
1452. 149 l..fid.2d 430 (2001) (finding clear error even

where "record contains a modicum of evidence ofTerittg
support for the District Court's conclusion"). Where the
record contains conDieling evidence, then, the clear error

standard requires us. as the reviewing court to assess the
comparative weight of the evidence both for and against
the district court's finding. It may be that the evidence
relied upon by the district court is insufTiciently probative

to sustain its finding. See. e.g.. Ea\ley. 532 li.S. at 247.

250. 257. 121 S.Ct. 1452 (clear error where statistical

evidence "too small to carry significant evidentiary
weight," testimony did not provide "more than minimal

support" anil other evidence did not "significantly
strcngihcn" district court's finding). Or the evidence may
be outweighed by other, more persuasive evidence. .See,

e.g. AndersMi. *470 U.S. at 575. 105 S.Ct. 1504
(credibility finding clearly erroneous if "(djocumenls or

Nr>Xl

I:*. IJO.Pg 19

SOUTHCOM/000173

 UBf V. Obama. S77 F.3d 1175 (2011)
400 U.S.App.D.C. 231

objcciivc evidence ... cotnnidici the witness' stor>-"): (.'.V.
Clvpsimi Co.. 333 U.S. a( 396. 68 S.Cl. 525 (clear error

"[w tiCTe... (csihnony is in conflict with contemporaneous
documents"!. Tlie dissent is simply wrong to equate Judge

11.

Brown's earcfal and complete review of the record
e v i d e n c e w h i c h fi n d s L a t i P. s v e r s i o n b o t h n i i n i i n a l h

pruhative. Majority Op. at 1196. and decisively
outweighed by the goventment's evidence, id at
11 8 5 - 9 0 — w i t h a " w h o l e s a l e r e v i s i o n o f I b c d i s t r i c t

court's careful fact findings." Dissenting Op. at 1207.
With the clear error framework in mind, there is no

Ibc dissent also asserts that application of the
presumption of regularity lo the Report "disturbs" the
"curerul and conscious balance of the impunanl inlercsis
at sta}{e" we have struck in past detainee decisions for
admitting and assessing the reliability of hearsay
evidence. Dissenting Op. at 1211 12. Judge Brown

difnculiy in concluding that the district court clearJy erred

thoroughly disposes of the usscriion laying out in detail

bcforc he was transferred to Ouantanarno Bay. Sue LaiiJ,

presumption of regularity, we have all but done so. Sue
Majority Op. at 1182-86. And we most assuredly arc not

ill failing to credit the  reduciions] ("Report") made in late
December 2001 Ircdaciions) after Laiif was captured and
slip op. at 6- 7, 2S. As Judge Brown demoastrates. tlie

district court gave insufficient probative weight (u the
evidence supporting the reliability of lite

Kepon including. in particular, the striking
consi.stencies between the Report and Latifs subsequent
adntisstons. .vee Majority Op. at 1189-90)--and to the
prpsumplinn of rnjulartiy that we accord u gcivcrninciu
record, >iv Ma.-ority Op. at 1178-86. At the .same time,

tlie district coun gave undue emphasis both to largely
immaterial errors in the Report and lo I.atifs "plausible"
allcmativc explanation for his travels, l.atif. 2010 Wl.
3270761. ill *9. slip op. at 26.1'hc *1202 second ciror is
especially glaring not only in liglit of tlic district court's

failure to make any llnding regarding LatiPs credibility,
s u e A ! - A M v. O b u m u . 6 1 3 F . l d 11 0 2 . 111 0

(1> C.Cir.20101 (by *'spleaking] only of a possible
alternative explanation" for detainee's actions and failing
to "make any finding about whether this alternative was

more likely than the govemmcnl'.s explanation." dislriei
cuurt failed to make any "comparative judgment about the
evidence  thai] is at the heart of the preponderance
standard of prooP (inlerniil quolutlons omitted)), cvrr.
duniuJ. — U.S. . 131 .S.Ct. lOOI. 178 I..Ed.2d 8S5
(2011), but also in light of the inconsistencies between
IjtiiPs aliernalive explanation as set forth in his
declaration submitted to the district court- and liis uurlier

statements made to the Ciuunianamo inierntgaiors. .tvr
Majority Op. at 1195-96.: After "considcrfingl all of the

evidence taken as a whole." .Awad. 608 F.3d at 7. I. like
Judge Brown, cannot help but conclude that the district

that, while we have not heretofore enunciated the

"discardlingl the unanimous, hard-earned wisdom" of

district courts that have assessed hearsay evidence in
detainee cases. Dissenting Op. at 1212. To the contrary,
sound evidentiary consideralioiis warrant incorporating
the presumption of regularity—in the caret'ui manner we
expressly do today into the district court's overall

reliability assessment of these reconl.s as wc routinely do
with others, including the point that the facts supporting
the presumption of regularity have significant probative
force in their own right, as discussed belnw'.
Moreover, our holding does nothing to disturb the
existing framework for hearsay evidence. All hcarsay
cvidencc "mtisl be accorded weight only in proportion to
its reliability." Barhnumi v. Ohaaia, 609 F..3d 416. 427
(D.C.Cir.2010). The district court assesses reliability in
the first instance, .■sue I'arhal v. <latus, 532 l-'.Jd 834.

847-48 (D.C.Cir.2008). and in so doing must consider
whatever "indicia of reliability" the hearsay evidence
manifests as well as any " 'additional infonnatiiin" "
bearing on ll« question of rcliubility. *1203 nutuavtih v.

Ohumo. 610 ['.Jd 718, 725 26 (D.C.Cir.2C',0) (quoting
f'arfiai. 532 r-.3d at 849)..t The district court considers a

wide range of factors—recognizing that any one of
several "hearsay dangers" might render llic hearsay
unroii.nhlc, see H'iUiamsun v. UnitedStaie.%. 512 U.S. .59*1.

.598. 114 S.Ct. 2431, 129 l..Kd.2d 476 (1994) ("The

declarant might be lying; he might have reisperceiv^ the
events which he relates; he might have faulty memory", his

w-ords might be misundersiood or taken out of context by

cotm's finding regarding the unreliability of the Report

the listener"). Inforniatloa "relayed through an

coupled with its finding regarding the mere plausihility of
LaiiPs stoo" is neither "pennissiblc" nor "plausible in

technical hearsay bccau.sc the interrogator is a third party

light of the record viewed in its cniireiv," .Anderson. 470
U . S . a i . V- l . l 0 5 S . a . 1 5 0 4 .
'

■

interrogator's account" presents an ailditional "level of
unavailable for cross examination." .Al-Bihuni v. Obumu.
590 F.3d 866. 879 (D.C'.Cir.20IO). vert, denied. U.S.

N?:<(

ex. 120.PD 9"

SOUTHCOM/000174

 Latif V. Obama. 677 F.3d 117S (2011)

400 U.S AiiP D.C. 231
131 S.Ct. IHM. 179 U;d.2d 794 (2011). Ilic

prcsumplion of rcgulurily docs nut conte into play with
respect to many aspects ofhcarsay. however: for example,
it docs nut vouch for assertions made about a detainee by
a third party nor does it answer the rcliabiiiiy inquiry if
the detainee claims he was coerced in making admissions.
Rather, the pre.sumpiion touches on only one dimension
of reliability: "it presumes the govcmmeDt ofUcinl
accuratel) identiticd tlx; source and accurately
.summa^j^ed hj.s statement, but it implies nothing about

the truth of the underlying non*govenimen: source's
statement." Majority Op. at 1180. i'hus it addresses only
the question tvhcther the "interrogator's account."

At-ltihani. 590 F.3d at 879. faithfully records the
underlying statement. Svc. e.g.. Uniwd Stales v. Smiih.
521 F.2d 957, 964-65 (D.C.Cir.l975) ("it is presumed

that [the police ontccr] accurately transcribed and
reported (the witness'sl story" hut "complaining

vvitncss'ls] dcscriplion of the crime, recorded by the
police onicer in his report. ... does not deserve tlie
presumption of regularity").

would aUo liavc evidentiary force, and as evidence would
command dte respect normally accorded proof of anv

fact."); H'ehatr r. Fsletle. 505 l'.2d 926. 930 (Si'h
Cir.l974) ("The same special reliabilUy that warrants
rcla.xing the hearsay rule as lo [public recordsl also
warrants according them ureal cvidentiarv weight "), cvn.
denied. 421 U.S. 918. 95 S.Ct 1581, 43 I,.Ed.2d 785

(1975): .Stone v. Stone, 130 F.2d 761. 763 (D.C.Cir.l943)

( "i rihc basic fact that public ofTlciais usually do titcir
duty ... has... thai quality and quantity of probative value
to which it is cnillled, entirely apart from any
presunipiiaii: Just us is true of any other fact which is
ba.sed on common experience."): .-Usahri w Ohama, 764
F.Supp.2d 60. 68 (13.D.C.20I1) ( "The fact that jdetainee
intcTTOgatioii reports} were prepared by government
agents in the course of their normal imelligence gathering
duties provides a degree of support for their reliability.").
The presumption of regularity thus embodies a
comnton-sensc judgment about the general reliabiliiy of
hearsay evidence mcmoriaiizcd in a govemnieni record.
And the district court's failure to apply the pre.sumption
of regularity is an error going to tlie heart of the "careful

out

and (inc-gruiticd approach to the assessment of

exceptions to die general niic against hearsay on the
ground that 'some kinds of oiit-of-coun statemenis are
less subject to ... hearsay dangers." WiUiamsnn. 512 i;.S.
at 598, 114 S.C'i. 2431. make cenain public records

reliabiliiy." Dissenting Op. at 12)2. it is required to

admissible, using "the assumption that a public oirictai
will perform his duty properly" as well as "the reliability

speciilc evidence" to defeat the presumption of regularity.
Riggs Sat I Carp. v. Vomm 'r. 295 F.3d 16. 2!

factors underlying records of regularly conducted

(D.C.Cir.2U02). somehow short-circuit the district coun's

activities gcnenilly." I'ed.R.Hvid. 803(8) advisory

reliability analysis, as the dissent suggests. Disseniing Op.

committee's notes (1972 Proposed Rules), (irantcd. in

at I2IU-II. It is well established that clear error can

*1204 detainee habeas case.s. tite Rules do not decide the

occur if a district court fails to credit otherwise reliable

admissibility of hearsay evidence, liarlummi. 609 F.3d at
422 (rejecting as "counter to this court's [precedenij" the
claim of error in admission of hearsay evidence "absent a
demonstration by the govcntmcnl Ihnt they fall within an

evidence on the basis of insignificant gaps therein. See.
"district court clearly erred In regarding (hearsay

csuiblishcd hearsay c.\ccption in the Federal Rules of

"discrepancy in dates"). Requiring a ctialtengcr to

Lvidcnce"). Dul bccau.ve the presumption of rcsuiarity is
based on much the same rationale as (he public records

produce "clear or specific evidence"- that is. evidence

The

Federal

Ruic.s

of

iMduncc.

which

carve

exception, see IJnilvdStates r. Chem. Found.. 272 U.S. 1.
IS. 47 S.Ct. I. 71 I..nd. 131 (1926) (presumption applies

because "courts presume that [public onitors] have
properly discharged their ofTicial duties."); if Legillv v.
Dann. 5 )4 I 2d ), 7 n. 39 (D.C.t'if.l976) (presumption of
due delivery of the mail and pre.sumption of regularity in

government agency's handling thereof "have a common
origin in regularity of action"), the facts supporiing the
presiimpiion of regularity carry signincani probative force
in their own riglti.a .See LegiHe. 544 F 2cl at 9 ("The facts
giving rise lo the presumption (of proccdurai regularnyj

uirdcrtake.

Nor does the requirement that a challenger olfer "clear or

e.g.. .ilmerjedi v. Oboma. 654 F.3d I. 7 (D.C.Cir 2011) (

evidence] us unrcltabic" because of "inconsequential"
with real probative force—to defeat the presumplion of
regularity prevents a district court from relying on minor
discrepancies to reject a government record. At the same
time, it discourages the hind of fly-specking in wliich the
district court—and the dissent- seem to have engaged in
this case. The dissent, for instance, focuses on a luuidful

of "Ihctuot errors" identified by the dislrici court in the
Report Dissenting Op. st 1216 17 *1205 (citing Report's

mistaken reference to "hand" injury, ambiguity about
whether injuiy was I.atifs or friend's, putative error
about l-atirs marital status (nxlactioiis) Ihc only
noteworthy characteristic of these "factual errors" is how

Next

F*. 17a Pg 71

SOUTHCOM/000175

 Latif V. Obama, 677 F.3d 1175 (2011)

400 U.SJVpplD.C. 231
trivial all  rcdaclions] arc5 -and Ihcrcrorc how Utile
probative Turcc they lend to the district cuun*s ilicory of

Uuantanamo Bay and fail to ofTor tin}' explanation fur hiv
inculpatory statements contained in the Report the

misattribution or mistranscription. Indeed, even in its
^rbled reference to l.atifs mcdicul history, the Report

district court would have no choice but to disbelieve him.

includes an undisputed detail—his 1994 trip to Jordan to

"apprehends the over-all evaluation of testimony in light

receive medical treatment for a head injury, .tee MajorityOp. at 1188-that belies the idea that a reasonable

of its rationality or internal consistency and the manner in

factilnder could l1nd (redactions! as the district court
suggested. Lulif. slip op. at 26. Nor could a reasonable

Slates V. SkCtty. 242 F..ld 399, 408 n. 15 tO.C.CIr.)
(Internal quotations omitted), cen t/enied 534 U.S. 872,
122 S.Ct. 166. 151 L.Ed.2d 114 (200!»: we tilsu

adding up cither lo (be i uantum or to the t uatity of
transcription error suflicleni to transform l.atirs
exculpatory vvTong-placc-ai-ihe-wroiig-tlmc account into
the coherent and detailed narrative thu Report presents.

.Antk-non. 470 U.S. at .175. 105 .S.Ct. 1504 ("IKIactors
other than demeanor and inflection go into the decision

.SVe it/.

the story itself may be so internally inconsistent or

facHIndcr plausibly Interpret the flaws in the Report a.s

"Credibility involves mure than demeanor" and instead

which it hangs together with other evidence." UnlWil

whether or not to believe a witness. Documents or

objective evidence may contradict the vvilncss' story: or
itnplaustble on its face that a reasonable factfinder would

111.

llasttd on the considerations outlined above -as well ns

Judge Rrown's comprehensive opinion I believe the
di.strict court clearly erred in falling to credit the Report.
Unlike my colleague, however. I also believe remanding
the case for further factfinding will be a waste of time and
judiciul resources. Judge Brown believes remand with
the possibiiiiy that Latif iniglii chottsc lo testify is
necessary to allow the district court to cumctly wciglt
Latif s credibility..?«; Majority Op. at 1192 While I

agree that the district court cned in failing lo a.wcss

not * 1206 credit it."). If, on the other hand. Latif were to
change his story once again on rcmaiKl. the very fact that
he "made inconsistent statements ... would lend to

undermine his credibility." United States r Stwer, 329
l-,3d 8.19, 867 68 (D.C.Cir.2003). a'rt. denied. 341 U.S.
1018. 124 S.CI. 2088. 158 LEd.2d 635 (2004). Ijtifs
credibility would suffer even if lie largely lepeuicd llic
story in his declaration but also decided to embelli.vh it

with additional details—perhaps in some attempt to
e.xplain away the Repon- because "(plrior stalemems
that omit details covered at trial are iiiconsislcnl if it
would have been 'natural' for the witness to include them
in the earlier statement." United Stales v. Stuik. 948 !-.2d

1299, 1301 (D.C.Cir.l99l). In short. Latif could only dig

Latif* credibility. Majority Op. at 1180-93—fcr "(ajt no

himself deeper into a hole on rcmand.6 Because the record

point did the court tnake any tinding about whether
(ijuif s narrative) wus more likely dian the govcmmeiu's

shovel but would instead conclude the litigation with the

e s p l a n a i l o i i . " v. f J / i u i w o . 6 1 3 F. 3 d a i I I 1 0 - - I
also believe remand is unnecessary because "the record

permits only one resolution of the factual issue."
PtiJlmtm-StaiuJard V. .9iW«r. 456 VS. 273.292. 102 S.Ct.

can reason.ib1y- be viewed in only one wny- that is.
against him I would not remand simply- to give Latif a
only result the evidence allows: that the government has
indeed "shown thai loitif is par! of AI Qacda or the
Taliban." Latif. 2010 WL 327076L at *1. slip op. at 3.

1731. 72 L.rd.2d 66 (1982): .ctv EtitUy, 5.12 VS. at 257.

121 S.Ct 1452 (finding clear error and reversing because
•■vvc do not believe that providing appellees a further
opportunity to make their ... arguments in the llisirici
Court could change lh c  rcsull"].
1'hc apparent premise behind Judge Brown's .irgtiineni for

remand is that Latif might olTcr testimony so compelling
that It would shake our confidence in the Report and

TATI-L. Circuit Judge, dissenting:

"the government's •'primary" picec of evidence.
Appellants' Br. 10, is ,i singJi.- report; (rcdoeiiuns] (itic

Report) (ledactians] After carefully laying out the parties'
-jrgnmcnui about the Report's internal and e.xterna) indicia

overcome any doubt about Latifs credibility. But what
testimony could possibly accomplish so much? If loKif
were to reiwat on the stand the same unpcrsuasivc

evidence that Latif was recruited by an AI Qaeda member

assertions he made in his declaration—assertions tluit arc

or trained and fought with the Taliban." .Ahdah iLmifs v,

inconsistent with his earlier statements to interrogators at
■

of reliability, the district court found it "not sufficienily
reliable to support a finding by a preponderance of the
Ohnmu, No. 04 cv 01254, slip op. at 25 (D.D.C. July 21.

Next

Ex. 120.P9.22

SOUTHCOM/000176

 Latif w. Ohama. 677 F.3cl 1175 (2011)
400 U.S.App.D.C. 231

2010], According to the district couit, "there is a serious
quexlinn as to whether the (Hcpiin] accurately rcflucis

Laiifs words, the iiierintinating facts in the  Rc(K)rt  arc
not corroborated, and l.otil' has prcscmcd a plausible

Guantojiamo hobeus cases. Finding no clear error. I would
afUrm the district court's grant of the writ of habeas
corpus,

nlicrnaiivc storv to explain his travel." hi at 26. The

government concedes that its case for liiwfutly detaining
Latif "tumls)" on the Report. Appellants' Br. .S. This,
then, reprcscitts a Itrst among lite (iuanianamo habeas
appeals in this circuit: never before have we icviowed a
habeas grant to a (iuantanaino detainee where alt concede
that if the district court's fact findings arc sustained, then
dcteittion is unlawful. Cf. Mmerfvdi v. Obamo. 654 r.3d

1.5-7 (D.C.Cir.20l 1) (rcvcrsins habeas grant and finding
dctenlioii lawful based on conceded facts and facts found

by the district court): Vilunan v. Ohama. 637 F.3d 400,

402 <D.C.Cir.20ll) (same); Al-.4dahi v. Ohama. 613 I'.3d
M02.1103. lilt (D.CCir.20t0)(same).

Bui rather than apply ordinary and highly deferential clear
error review to the district court's tlndings of lact. as this
circuit has done when district couns have found the

govcmnicnt's primary evidence rcUuhh. the court. no»v
facing a finding that such evidence Is unrK'Uahte, moves

the goal posts. According to the court, because the Report
is a govemment-prodiiccd document, the district court

was required to pre.suinc it accurate unle.ss I.<iiir could
rebut that prcsumptioit. Maj. Op. at It 81. in imposing this
new presumption *1207 and then proceeding toyrnr/thnt
it bus not been rebutted, the court denies Latif the

^meaningful opportunity" lo contest the lawrulncs.<i of his
detention guaranteed bv Roumedlemi v. Biah. 553 U.S.
723.779, 128 S.CT. 2229. 171 l..i:d.2d 41 (2008).
Compounding this error, the court undertakes a wholesale
revision of the district court's careful fact I'mdings. I'luws

in the Report ihe district coon found serious, this court
now findf minor. Latif s account, which the district court
t'ound plausible and corroborated by documcniury
evidence this court now/i/w/r "hard to swallow." Maj. Op.
at 1194. (redactions] the district court found did not
implicate I.ailf. this couri now /mh/t do in fuc: iiiipliculc
him. And on and on. all without ever conclutiing that Ihe
district court's particular talcc on the evidence was clearly
cmmcous. Out set Fcd.ILCiv.P, 32(aK6) ( "l-indiiig ol"
facts, whether based on oral or other evidence, must not

be set tiside uiilcw cicurly erroneous....").

In Part I. I explain why the dtttirict court committed no
error in declining to apply a presumption of regularity to
Ihe Report. In Part II, I apply the deferential clc.v error

standard this circuit has used throughout these

t.

All agree that this case turns on whether ihc district court
currcetly found that the government's key piece of
evidence, the Report, was unreliable. And all agree that

the "question whether evidence is sulTtciemly reliable to
credit is one we review for clear error." Al 4/wi v. Ohama.

653 F.3d 11. 19 (D.C.Cir.20! I). Our disagreement eentcn
on whether the district court was required lo afford the

Report a presumption of regularity.
The presumption of rcgulniily stems from a humble
proposition' that "Ipublic ofliccrs] lutve prupcrly
discharged their olTicial duties." Sufxmim v. U.S.
M a r t h a l s S e r v. . 4 9 4 F. 3 d 11 0 6 . i l l 7 ( l ) . C . C i r 2 0 0 7 )

(quoting United Stain v. Uhem. fnund. Inc.. 272 U.S I.
14-15. 47 S.Cl. 1,71 L.F.d. 131 (1926)). The contours of

the prcsompiion are be.st understood by how courts
typically apply it. For exanipk, courts assume that
"ofricial lax receipt(s " are properly produced. Rrggi
.Mal'i Corp. V. CommV. 295 F.3d 16. 21 (D.C.Cir.2002).
that .stale court documents accurately reflect the
proceedings they describe, Uohhs v. Blackhmi. 752 F.2d
1079. 1081 <3tli Cir.1985). that mall was duly handled
and delivered, LtgU/u v. Oaun. .144 F.2d 1. 7 n. 39
(D.C.Cir.l976). and that agency actions in lire ordinary
course of business are undertaken on the basis of fact.

Ciliztn.i to Pt nc'iv Orttlun Park. hiv. v. I'tdfh'. 401 U..S.
402. 415, 91 S.Ct. 814. 28 UEd.2d 136 (1971) (citing
Pacl/k States Box A Basket Co. v. H7/rri'. 296 ITS. 176.
185.56 S.Ct. 159. 80 L.lid. 138 (1935)).

These eases—in fact every case applying the presumption
of rcgulariiy—have somclhirg in common: actions taken
or documents produced within a process that is generally

reliable because it is, for c.xamplc. traiuparent, accessible,
and ollen fainiliiir. As a result, courts have no reason to

question the output of such proce.sses in any given case
absent specific evidence of error. Such a presumption
rests oit common sense. For instance, courts have im

groutids to credit a defendant's allegation that "the state
court trial docket" or "the waiver of trial by jury form"
uontuin inaccurate information when that defendant has

no support othct than a self-serving Hllegalion. .See

• I ■ ■■Next

Ex. 120. Pa. 23

SOUTHCOM/000177

 Uttf V. Obama, 677 F.3d 1175 (2011)

466U.S.App.D.C. 231 ~
Thompson v. ilstelle. 642 FJd 996. 998 (Sth Cir.l98l]
inoiing (hoi ihc "clistricl court could properly rclv upon
the rcuularily of the stale court's cJocuincnis •1208 in

neutral state court judges, no less than federal judges,
pledge to apply Ihc law failhfully. I hut federal courts give
a presiimpiicn of regularity to judgments and fact findings

preference to [the nppellan('i  self-serving testimony").
Courts presume accuracy because ihey can trust the
reliability of documents pnxluccd by such processes.
Courts and agcncie.s tire hardly infallible, but for the most
part Ke luive sutficlcnt lamiliariiy and e.spericnce with

that emerge from such a process, where criminal

such itisiiiutioiis to allow us lo cumforiably rely on
dociiittcnts Ihey produce in the ordinary course of

presume the accuracy of [redactions! intelligence rcpons
prepared in the fog of war. Indeed, unlike statutory

business.

iialxas. wlicrc federal review fuilows state coun

In .s.iying that "(cjourts regularly apply the prcsuniptioti...

proceedings, constitutional habeas is the only process
afTordcd Guantanamo detainees. C/. Boumethcnf, 5.1.3
U.S. at 780, 128 S.Ci. 2229 {"It appears that the

[to] processes that are anything but 'transparent.'

'acces.stble.' and 'familiar.' " Maj. Op. at 1182. this court
cites a single case where we presumed the accuracy of a
ia.x receipt from the Central Bank of Braril for purposes
of ciuiming foreign to.\ credits under the intcmal Revenue
Code. .Vee «/ at 1182 (citing A/gg-t Nut 'l Corp., 295 F.3d
at 20-22). As the Supreme Court has held. Ihc
ptc.sumptlon 0.'' regularity applies to "the actions of lax
ofltciats," and the "records of foreign public otficials."
Stilt .VotT Corp., 205 F.Sd at 20 (citing Supreme
Court cases). Rut again, this is because we have no reason
In question or be concerned with the reliability of such
records.

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

fog of war by a clandestine method that wc know almost
nothing ahout. It is not familiar, tramparcm, generally

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

quotidian data entry akin to state court dockets or tax
receipts, its uuipui. a [rcdaciions  intelligence repon. tvas.

dcfendaitts have ample opportunity to challenge advcnie
evidence, .tee Laokawanna t"»n'. Dist. .4wV v. ('rxts. 532

U.S. 394. 402- 03. 121 S.Cl.' 1567. 149 l..Eil.2d 608
(2001). provides no reason for habeas couns also to

common-law habeas court's role was most extensive in

cases of pretrial and noncriminal detention, where there

had been little or no previous judicial review of the cause
for detention. Notably, the black-lciier rule that prisoners
could not controvert facts in the jailer's relum was not
followed (or at least not with consistcncyl in such
cases.").

In its analysis, this court ignores a key step in the logic of
applying a presumption of regularity, namely, that the

challenged documcnl emerged from a process tlKU wc can
safely rely upon lo produce accurate Infonnation.
Reliability, not whether an *1209 official duty was
perfomied. <,/. Maj. Op. at 1178 79. is the touchstone

inquiry in cveiy case this coun cites. For example, in a
probation revocation decision by the Seventh
Circuit—which, incidentally, never uses the term
"regularity." .see UniinJ Slates v. Thomas, 934 F 2d 84(1

transcription errors, and heavily redacted for national

(7ili Cir.1991) - the court found that the probation repon
"was of the type that generally carries a presumption of
reUuhHity." id at 846 (emphasis .added). A probation
oRlccr not only "icsiitlcd (and was cruss-cxamlited) about

security puiposcs." Maj. Op. at 1179. Needless m say. this

the prcpanitiun. ntaiiiieiinncc. and inlerprciation of special

in this court's own words, "prepared in stressful and

chaotic conditions, filtered through interpreters, subject to
is quite difTcrciit from B.s.suming the mail is delivered or

that a coun cntployec has accumtely joned down miniitc.s
from a meeting.
To support ks apprttach here, this court invokes

presumptions of regularity for state court fact-finding .ind
for final judgments in criminal habeas proceedings. .V.-e
i l l a t 11 8 1 - 8 2 . A s i d e f r o m t h e a b s t r a c t a n d

uneoiiirovctsial proposition that courts sliould be sensitive
to the separatum of powcm a.s well as to federalism, id at

MSI-82. the analogy makes little sense. State court
judginuiil.s and fact findings arise out of a formal and
public adversarial process where panics generally have
attorneys to zealously guard their interests, and where
■:

repons prepared by the probation office" but also "applied
that ... knowledge to [the report at issue)." Id at 842.
Ciiven that testimony, and given also that "the district
court ... had reviewed the report "many times.' " the
Seventh Circuit saw no reason to think the report svas

"inaccurate." id at 846 Reinforcing its emphasis on the
impononcc of assessing reliability, tlie .Seventh Circuit
cited an earlier decision. United States v. rix/rte. where

it had found admissible a report produced by a drug
treatment center because the report wa.s found to be

"reliable," because the defendant had an opportunity to
cross-examine its author, and because no evidence

diitereditcd il. 853 F.2d .5.37. 539 (7lh Cir.)988). These

decisions do not, as this court now does, ask only whether

N«t

E*. i20.Pg.24

SOUTHCOM/000178

 Latif V. Obama. 677 F.3d 117S (2011)

400 U.S App.O.C. 231

an omcinl duty was regularly pcrfunned; rnihcr. ihcy
csaminc the reliability of the profTcred evidence and the
process that produced it. As yet another decision the coun
cites puts it, courts will permit "the iniroduciiun of
'Jcmtutmohiy n'liuhL' ' hearsay evidence in probaiian

Nor am I suggesting that distriei courts shculd give tin
weight to sworn declarations by government officials that
such reports arc (redactionsl because Ircdactions] Up to a
poini. the declaration docs provide support for the

revocation proceedings." llniieii Stutoi v. MfCallum. 677
F.2d 1024.1026 (4tb Cir.1982) (emphasis nddcc).

Report is in fact authentic, i.e.. that it really is an
interrogation summary. Relying on similar declarations,

To be sure, the govetnnieni in this case has produced a

many district courts that have heard Guanumamo habeas
co-ses • including the district court here- have adopted a
presumption of uuihenticiiy for government records like

declaration .stating (rednciionsi vee Maj. Op at 1186
(quoting this afTidavit). But we have no idea what the
[redaeiioiis] is. ttur unywhvic near die level of r'umitiariiy
or experience with that course of business that would

allow us to comfortably make presumpticns ahnui
whether the output of that process is reliable. Vf.
Bimultahv. Ccfas. 501 K.3d 178. 185-86 (D.C Cir.:007>

(finding that it was "not at all clear" that even the
Combatant -Status Review Tribunal was "entitled to a

presumption of regularity ... because a CSKT docs no!
have die transparent features of the ordinary
udmiiiistraiivc process and the (iniliiacy oiUccr charged

with obtaining and reviewing cvidcncel is not the liiul
agency decisionmaker") Of course, ws* may take some
assurance from the Diet that the Executive Branch acts in

good faiih when carrying out its duties. But the very point
of Bouiuviiitni' is to ensure that detainees have a

"meaningful opportunity" to subject the Executive's
detention decisions to scrutiny by on Independent Article
III court.

(his is not to say that reports similar to the one at issue
here arc necessarily unrcliablc. I'crhups after earerul
scrutiny distriei courts will conclude that many arc

reliable. See, ei;.. Klum v. Ohtmu. 655 F .'d 20. 24 -26
(D.C.Cir.20l I). My point is lar more modest; because we

are unfamiliar with this highly secretive process, and
because wc have no basis on which to draw conclusions

about the general reliability of its output, wc shouki
refrain from caicgorically alTording it presumptions one
way or the uihcr. This approach docs not relied
"skcpliclism)" or "cynielism]" about the Executive
Branch. Maj. Op. ai 1179 80 it is nothing more than

Report's reliability. For one thing, it .suggests that the

the Report even while consistently rcjccitng a

presiimplion that such records are acvuratv Sa', e.g..

Ahiihri V. Ohama. 764 F.Sgpp.2d 60. 6fr-67 & n. 8
(D.D.C.20II>; Haum v. Ohumtt. 677 F.Supp.2d I. 10
ID.D.C.2009). vactiii'd on n/Zier groinufs. 632 F.3d 720
(D.C.Cif.20l I); Ahmed v. Ohama. 613 F.Supp.2d 51.
54-55 (D.E).C.2009). But see. e.g.. AI Kanderi r. United
Stawt. 744 F.SuppJd 11,19-20 (D.D.C.2010) (declining
to adopt a presumption of cillicr autlicniicity or accuracy).
Going one step further, habeas cotnts might also properly
rely on the analogy between intelligence reports and
business records to cnncludc that "{t]he fact that these
reports wvre prepared by government agents in the course

of their normal intelligence gathering duties provides a
degree of support for their reliability." Abahri. 764
F.Supp.2d at 68. I thus have no problem with the
observation, made In a decision cited by the concurrence.
Con. Gp. at 1204. titai "tbe basic fact that public tilllcinis
iisunily do their duly ... has ... that quality and quantity of
probative value to which it Is entitled." Stone v. Stone.

136 F.2d 751. 763 (l).C'.Cir 1943). As that decision goes
on to say, however, "the probative stivngth of the
evidence is for the Ifactftndcrl to consider." /J. Nor do I
qutinel with the oltscrvation that, as a general matter,

government records consisting of interrogation summaries
Willi inculpatory odTnisstons are more likely to be reliable
evidence than documents reporting thlrd*pany' (and
sometimes anonymous) hearsay.
But this court goes well beyond these modest
conclusions-and well beyond what the goverrunent

what Baumettiene directs us to do. .SVe BounieJlenc, 5.13

actually argues in lis briefs—when it relies on the bare
fnct that govemmcm ofllelais have incentives to maintain

U..S. ai 786, 128 S.Ct. 2229 (requiring habeas coun "to
" n o t p r e s u m e , " t h e s u f fi c i e n c y o f t h e

careful intelligence repart.s as n reason to require district

Covcmniem's evidence" (emphasis added)). And indeed,

but alio accurate, despite clixunisianccs custiitg tlicii

from time immemorial courts have been skeptical nf
hearsay evidence wilhoul implying bad *1210 faiili or
cynicism about the E.xeculive (or whoever is attempting to
present that evidence).

courts to presume that such rcporu arc not only authentic,

reliabillly into serious doubt. See Appellanis' Or. 30-31.
(arguing in passing that the tlislrict court in this case erred
by failing to give nm> weight to the general presumption

that govemmciil ofTlcials earn out their duties propcriy

but never urging adoption of a coiegoricai.

Ex. 120. Pp. 25

SOUTHCOM/000179

 Latir V. Obama. 677 F.3d 1175 (2011)
400 U.S.Apjj.O.C. 231

burden-shifting presumption of regularity); Appellants'
Reply Br. 22 -24 (same). One need imply neither bod faitli
nor lack of irtccmive nor ineptitude on the pan or
govcniinent ofKlcers to conclude that  redaciionsl
compiled in the field by   reductions] in a [redaclions] near
an [n.'dactioiis] that contain multiple layers or' hearsay,
depend on translsiots of unknown quality, and include
cautionary disclaimers that (redactions) arc prone lu
significant errors; or, at a minimum, that sucli reports are
Insufficiently regular, reliable, transparent, or accessible
to wnirant on automatic presumption of regularity.

government intelligence document at issue here
(redactions) Beiua^uh v. Ohamu. 610 F.Jd 718. 725
(D C.Cir.20IO). In Otfmayah rather than graniing the
guvemmenl's evidence u presumption of regularity on Ihc
grounds (hat It consisted of govcmmcni records regularly

kept, we carefully evaluated other evidence purporting to
corroborate the document's contents, ultimately
cniicluding that (he district court committed clear error by
finding that document reliable. Sat id. at 726- 27. Nor did

we apply a presumption of regularity in At .tlwi even
though the government's evidence, as here, consisted of

intermgation summaries allcg^ly repotting the

It i.s thus not at all surprising that our court has never
bcrorc applied the presumption of regularit> in
Guantanamo Bay habeas cases despite numerous
opportunities to do so. Kor instance, in Barlumm. the

Report at issue in this case. Indeed, in .4/.4/111 we adopted
a rule—that "the (district) court miai take the absence of

government, seeking to establish that the petitioner was
"part of an a! Qaida associated militia, relied on an
intelligence *1211 report that included an F.nglisli
translation of a diary allegedly authored by a member of

corroboration into account in as.sessing the reliability of
petitioner's out-of-court slatemenls," .4/ Ahvi. 65J F.3d at
19 (emphasis added)--that directly contlicis with ibis
court's ob.seri'aiion that "{b)y dcfinilion. a presumptively

t h a t m i l i t i a . B w f w t w u v. O h a m u , 6 0 9 h ' . 3 d 4 1 6 . 4 2 0

rcliubic record needs no uddiliunal eorruhorallun utiless

(D.C.Cir.20IO). Among other challenges to this evidence,

the presumptbn is rebutted." Maj. Op. at 1192.

govemmeiit's railurc to make a copy of ilic diary

And most recently, in Khan v. Obama. we reviewed the

we considered petitioner's argument that the

petitioners' own stalcmciits and even (hough those
documents had uraaicr indicia of reliability than the

additional layer of hearsay added by (he diary's
translation rcndcr cd  it somewhat less rcliab.c than it
olhenvise would (havej be cnj (particularly if the
government had provided infannation regarding its
translation)." we nonctliclcss reviewed the diary's internal

district court's finding that Ihc government's infonnani
reports were reliable. Aguin. rather than applying a
presumption of regularity, we spent page after page
carefully evaluating Ihc reliability of the reports. In
aOlrming the district court's determination that the
documents were reliable, wc emphasized external indicia
nf rcliahility. such as photographs and items seized from
petitioner's home, as well as detailed govcrrnncni
declarations explaining why the reports were reliable.

and c.vtcmal indicia of reliability and concluded thai the

Kluiii. 655 F.?dat 27-32.

available in its original Arabic or to provide infonnailon
regarding the qualifications or motives of the translator

raised doubts about reliability. Although we characleri/cd

this objection us "troubling" and "iicccpijcdl that the

district court had not clearly erred by relying on It. hi. at
430-32. Had we believed that a presumption of regularity
applict) to the translation recorded in the intelligence
report, none of that c.Mended analysis would have been

necessary. Instead, wc would have simply presumed the
document's accuracy - and e.\pecied the district court to
do the same. As my colleagues bcgnidgiflgly adntit. Muj.
Op. at 1183-84, that i.s exactly what the gcvemmem
asked us to do in Burhmmi. but to no avail. St-v

Appellees' Dr. 52. Burtnmmt, 6(l9 F.3d 416 (No.

09-5383) (arguing that "translations are prcxumi-J to be
dtcuraic in the uUsenev of evidence to the eunliiity"
(emphasis added)).

Our approach In liarfmumi. At Aiwi. BunsaymX and Khun
reflects a careful and consciou.s balancing of the important
iniercsis at stake. While federal cuiirls typically exclude
hearsay unless it falls within a specific exception, .we
Fed.R.iivid. 803. wc understand that in the conte.xt of

eticmy *1212 combatant proceedings such evidence ina\
be the best available. Barhewmi. 609 F.3(l at 427. Thu.s.

rather than acting on our deep, historically rooted
skepticism of hearsay b>' excluding such evidence
aliogcilicr. we admit it but are careful to assign it no more
weight Ihon it is worth as mcosured by any available
indicia of rcliabithy. .Vee id. (holding that hearsay

Wc followed exactly the same playbook in Beitfttyah und

evidence Is "always admissible" In such proceedings, but
that it "must be accorded weight only in proportion to its

4/ .'(hi/, two cases in svhich we reviewed disiriel courl

rcllabiliiy"); .we aho .4l-Bihani v. Ohamu. 590 F.3d 866.

reliability delcriniuations about the precise iy >c of
•

Ns>l

■

.

879 (D C.Cir.20IO). The presumption of regularity, which

■

Ex. 120. P9.26

SOUTHCOM/000180

 Latif V. Obama, 677 F.3d 1175 (2011)
400U.S.App.D.C.231
(his court expressly promises on "dcfcrlcnccl to Kxccutivc

branch cxpunisc," Maj. Op. at 1IK2. di.%turbs this carerul
balance, substituiinji a presumption in place of careful
disiricl court "review and asscss[incni ot] all evidence
from both sides." Al-BUnmi. jOO l'.3d at 880. Given the

dcitrce lu svhich our cvidcmiars procedures alre:id>
accontniodalc the guvvmtncnt's compelling national
security interests by admitting all of its evidence,
includlns hearsay; given the heightened risk of error and
unlawful detention introduced by requiring pelilioncrs to
prove the inaccuracy of heavily redacted govrtmment
doeunicnis; and given the imponaiicc of proscrvlnu "the
independent power" of the habeas court **tfl assess Itio
actions of the F_\ccuiiwc" and carefully weigh its

govcmmcm's exhibits and explaining -.liai circuit
precedent supported fc approach): Al Kuntlurl, 744
r'.Siipp,2d at 19 ("Simply assuming the Govemmcni s
evidence is accurate and authentic docs not aid [the
reliabiiityl inquiry "): .4/iwt'ry. 613 F.Supp,2d at 55
{"(Ijherc is absolutely no reason for this Coun to
prvxumv that the facts contained in the CovcmiiKnf's

exhibits are accurate."): .vet' uLio Benjamin Wiltes. Robcn
M. Chcsncy &  .arkin Reynolds. The Emerging l.aw of
Detention 2.0, at 52 (May 13. 2011) (indicating *1313
that "none of the publicly available rulings on the issue
have favored the government"). ttvuHMe tu
tiltp:'- w ww.brookings.edwpapers 3011 '05

evidence, ti/.. I find this court's dcparturc from our

gnantanama_wittcs.aspx. Rather than ignoring serious
doubts about govemmcnt evidence by presuming its

practice deeply misguided.

uccumcy. our district coints have Instead done c.xactly

1'o be clear, i make no claim that aityihing in Burhoumi.
lifmityut*. If fUwi. Khun, or any of our other Guantanamo

habeas cases aflirmativciy rules out (he possibility of
applying a rebuttable presutnptioii of aceurucy U> certain
kinds of govemiiieni evidence in some circumstances. My

wltai we cjqjcci of careful factfindtrrs and precisely what
our case law demands: scrupulously assess the luliability
of each piece tjf evidence by applying "a long, non
exclusive list of factors ... such as: corsisicncy or
inconsistency with other evidence, conditions under
which the exhibit and statements contained in it were

point is only that our cases, proceeding in the very

ubtalned. accuracy uf translation and transcription,

coinmon<]uw<liku fashion that my colleagues describe,
vce Maj. Op. at 1185. have endorsed and applied a careful
and tlnc-grained approach to die assessment of reliability.

personal knowledge of  ihe  declarant .... levels of
hearsay, recantations, etc." Ahmed. 613 F.Supp.2d at 55:
.vee ahu Suhtymun v. Ohama. 729 F.Supp.3d 26. 42
(D.D.C.20IO) ("As to many of the inulligencc reports

\Vc huvc applied that approacit to claims that a document
\tas mistranslated (Darhonmi ) and to claims that a
document is insufncicntly corroborated (Al Ahvi. Khun
) two of the issues in this case. We have applied that

[the government} relics upon ... there is nothing in the

record regarding the qualifications of the interpreters used
in those interrogations to render a reliable imerprciation.

approach to a Uiensuxvk At Afwi), and to government
Interrogation summaries {.-1/ Ahvi y -the same type and
category of documents tis the Report. Following that

There arc other intelligence reports ... in which the
govemmcnt has failed to provide foundaiinnal evidence

approach, we have both upheld Ifiarhmion, Al .-Uwi. Khun
) and overturned (Beivrtn-uh ) district court findings that a

that render rhcm intrinsirnlly reliable or were made by
reliable sources.'" (citation omitted)).

government document is reliable. I'hc only feature of tills
case not previously cncouniercd is that here the
govcromem lost: the district coun found the dispositive
government Report unrvliah/e and Krunteil a writ of
habeas carpus.

Moreover, the pw<>umptii>n discards the unanimous,
hard-earned wisdom uf our district judges, wliu have
applied their fnet-flnding c.xpenisc to a wide urru) of
govcniincm hearsay evidence. In doing so. they have
developed a uniquely valuable peispeciivc thai we ought
not so quickly discard, ritcsc judges, including the district

judge in this cast*, have unanimously rejected motions to
give government evidence a presumption of accuracy,

,Vev. CH: Ahahfi. 764 K,Supp.2d at 66 (noting "ample
reason" to decline to presume the accuracy of the

that those statements 'were made under circumstances

Brushing aside these di.strict court rulings, my colleagues
think thai those courts "may" have been denying a
presumption of accuracy because ihcy "(c)anfus(edl" it
for a presumption of truth, Maj. Op. at 1180. the
difference being that the latter presumes the content of a
rcpuri is truv\ whereas the former presumes that the
government official filling out the report did so

accurately- i.e.. that In doing the interview, he coiTceily
heard, translated, recorded, and summari/cd the content

embodied in the lepon. I he district courts have sultored

from no such confusion, nor do I. for (he core que.xlion
presented in this case is whether the Report accurately
reflects Latifs words. Unsurprisingly, my coDcagucs cite
not a single case where a district coun refers to a
presumption of truth or. for (hat matter, a single instance

' •■. N e x t
Ex. t3a. Pg. 27

SOUTHCOM/000181

 (£ fiCC,
Latif V. Otuma, 677 F.3d 1175 (2011)

400U.S.Ap^D C 231
in wliich the BOvemmcm areucd for a presumption of no grounds for assuming the district coutis are confused
truth railier than a presumption of accuracy. They cite about this distiiiclion.
. llmicU. but nowhere did the district conn there say that
"the requencd presumption would go to the iruih of the In support of a presumption of regularity, this cauri relics

facts coniaincd in the Govcmnicni's exhibits.'" Maj. Op. on the plurality opinion m HtunJi. which, applying Due

at 1IS0;; .-iliiig Ahmed. 613 r.Supp.3d at SS). Rather, the Process analysis, states that "the Constitution would noi

ristrici^'iun denied a presumption of accurmy. doing so be oflcnded by a presumption in favor of ilie
6^1 scv ral reasons, including the need to a5.xcss the Oovcmmcni's evidence" In enemy combatant
'^ccur^py of translation and transcription." and not just proceedings for ciiiaen detainees "so hmg ns that

because of alleged torture, as this court now implies. 613 presumption remained a rebuttable one and fair
l-.Supp.3d at 55; see tdsti Ai Ahiiairi United Stales, 644 opportutiity for rebuttal were provided." Hamdi r
F.Supp.2d 78. S4 (I).D.C.2009) texprcssinc concern that Rumsfeld. 542 U.S. 507, 534, 124 .S.Ct. 3633. 159

the govcmmeiil's evidence "is based on reports of L.Ed.2d .578 (2004) (plunilii) opinion). Accoiding to this
Interrogations (often conducted through a translator) court, becaaxc the Hamdi pluralitv pruvisinnally blessed
where ininslation or transeription mistakes ma> occur"). such a general presumption, its own presuntpllon
In A! Mtnairi, the district court even pointed to evidence requiring dcfercmc to ofllcial government documents
in that very ca.se c.xemplifylng such problems: "for over must pass co.nstitutional muster. Maj. Op. at 1179. But the
three years" the government had. "based on a thmdi plurality made clear that the presumption it

typographical error in an inierrogalion report." sanctioned would apply only if the government "puts

erroneously insisted •nhat AI Mutairi manned un forth credihie evidence that the habeas petitioner meets

ami-aircrafi weapon In Afghuniston." Id., .lee (dsn AI the cnciny-contbatant criteria." 542 U.S. at 534. 124 S.Ct.

Rahiith V. Unlied Slam. 6.48 F.Supp.2d II. 18 2633 (emphasis added); .vee u/so .^/mer/tr/r. 654 F.3d at 6
(l>.l).C.2000) (noting "discrcpan cics '' between two & n. 7 (c.xplaining lite Hamdi ihuncwork requites die

reports summarizing the same inierronuiian that the government to "put forth credible facts" tending to show
government had made no uiiempt to reconcile): AI Odah thai the petitioner meet.* the detention stondaid. such as

V. (JailedSlates. 648 F..<;upp.2d I.6(D.D.C.2009)(noiing that he received military training at an at Qaida camp,

that "interrogators ond'or interpreters included ineorrcci which the peiitioner can then rebut with his oss-n facts and

dates in three separate reports thai were submitted Into explanation). In other words, a presumption Is acceptable

evidence Iwscd on misunderstandings between the if the government can first show that its evidence is

fircgorian and the Hijri calendars"). Indeed, *1214 the credible, but the Hamdi plurality never suggested that the
same dislrici court whose decision wc now review government could make Ilut .showing by relying on a

e.\pluit>cd in another Guanianamo case that it "has learned presumption that govemnient-produccd' cvidencr Is
from its experience with these cases that the inierrogalion credible and accurale. It is the latter presumpiton thai Is .it
summaries and inleiJigence reports on which (the issue here and about which the Hmdi plurality had
Goveromenl) rellics  arc not nccess.trily accurate and. nothing to say. Given that the district court in this case

perhaps more importantly, thai any inaccuracies are concluded that the Report was "not sufficiently reliable,"
usually impossible to detect." Odah r. Ohama. No. latif. slip op. at 2S-i.c., that it was not credible • the

06-cv 1668. slip op. at 3 (D.D.C. May 6.2010); see (lAro court's reliance on the Hamdi pluraiits te defend its
id. ("[Tlhcrc are many steps in the proccs.s of creating presumption of regularity is misplaced,
these documents in which error might be intrcduecd :] ...

ihc iiilerpretcr must understand the question posed and This court believes that our decisions in .•U-liiliatii. JW
correctly translate it; the Interviewee must understand the T.Sd 866. and Parhat v, Go/ew. 532 K.3d 834

inutrpncicr's rccitnilon of the quc.stion: the interpreter (D.C.Cir.2(I08) support the "continuing vinbillty" of
iiiiisi uiidersiaiid the inlerviewee's resptmse and cotrectly uppiying a presumption of regularity to Ouanianaiim

interpret it; the interrogator must understand the habeas cases. Maj. Op. at 1183. In . ri-Bi/irMii, howvvcr.
Interpreter's translation of the response: the imcrrogaior although the disirici court "reserved  ihc  authoriiv"

must take accurate notes of what Is said; and the grunted by its case management order to presume tiic
iiitcrrogaiur must accurately summarize those ntuc.s when government's evidence accurate, it went un to "{issess[  
writing (he inieirogation summary at a later time."). Of 'he hearsay evidence's reliability as required by the

course, cniiccms ahmt the accuracy of tire reports Supreme Court." .1/ Rihuni. 590 V.3d at 880. Even the
necessarily raise concerns about their t'ruih. Out there are government agrees with *1215 this view of .H-Blhani.
Nwt

;

Ex. t20.Pg.2e

SOUTHCOM/000182

 Law V. Obama. 677 F.3d 1178 (2011)

406"U."S.App.D.C. 231'"'
Sve Appellees' Br. 52. Barlioumi. 609 F.3d <JI6 (No,

But the court's assault on Boumediew docs oot end svilh

09-538.1) ( "In Ihis case. ai in Bikani lAI-BHtimi]. ihe

its prcsiimpiton of regularity. Not content with moving
the goal posts, the court calls the game in the
govermnent's favor. Instead of remanding to give l.aiif an
opportunity to rebut the presumption of regularity, this
appellate court engages in an essentially de novo review
of lite factual record, providing its own inierpretalluiis, its

district court did not pnesuine the accuracy or aullKiuicity
of (lie government's evidence." (emphasis added)). Die
most one can say about Al-Biliaiii on this issue is that ivc
siiggcsicd~in dicta—that a district court apply a
presumption to a particular piece or evidence ij
appropriate--a ptiwer the district coint in (hat case
declined to cxtatiiK. This is a far cry from the holding
todaj--that all such reports nnd their underlying hearsay
must he granted a presumption of regularity. As to
Pitrhat. a pre-Boumediew case arising under the Detainee
Treatment Act of 2005. it is true that the Act incorporated

a "rebuttable presumption that the (iovcmtncni l-:videiice
is genuine and accurate." Maj. Op. at 1183 (cinphtisis
removed). But in (hat case, wc took the opportunity to
clarity tliai, at a minimum. hear.say cvidetwc "must be
presented in a furm, or with sufTtcieni additional
information, that permits fan u.S5cssnient of  its
reliability.'" I'itrhai. 532 K.jd at 849 As we rccenlh'
reiterated. "Itlhc govcnimem'.s evidence in Purkta was
InsufUcieni to enable the court to assess its reliability."
AVin/t. 6SS F.jd (« 26. This hardly .supports the
proposition that courts assume government rcport.s

own narratives, even its own arguments, .rev Maj. Op. at

1185- 99, and findx that "neither internal flaws nor
exieniiil record evidence rebuts that presumption in this
case." id. at 1179. B«i see Pullman-.Standafd r. Swiiu,

450 U.S. 273. 292, 102 S.Cl. 1781. 72 LMid 66 (1082)
(where district coun fact "lliidings are infinn because of
an erroneous view of the law, a remand is the proper

course"), To be sure, such a finding would be appropriate
if the record supported "only one resolution of the fociual
issue." 456 U.S. at 292, 102 !s.Ct. 1781. But that cannot

be the case where, as here, the question of reliability turns
entirely on witness credibility, inferences drawn from
errors and inconsistencies in the Report, and *1216 the
resolution of conflicts in other record evidence, .we infru

Pan II Given the court's conclusion that the presumption
liiu not been rebutted, remand may well be a "pointless
e.\ercise." Con. Op. at 1200.

like the one at issue here arc accurate, cspecialty given
that the Supreme Coun in Bnumnidicne spcciflcnlly found
that the process provided by the Detainee rrcatment Act
was an Inadcqiiaie substitute for the writ of habeas corpus.
See 553 U.S. at 792. 128 S.CT. 2229.

In sum. given how and where we typically apply the
presumption of regularity, and giwi the balance this
circuit ha.s already struck on how to dc.il with hearsay
evidence in Guantanamo Bay cases, and given the
seasoned observations of our district courts about the

reliability of such evidence, the question still iitianswcrcd
to mj satisfaction is "Why?" Why does this court now
require district courts to categorically presume thai a
government report—again, one created in a [redactions 1
near an [redactions} with multiple layers of hearsay, and
drafted by unidcniitled translators and scriveners of
unknown quality--is accurate'.' Whcilicr the prc.suinpiion
can be overcome by a preponderance of llic evidence or
by clear and spccitic evidence—this court never sais
which—I fear tliai in practice it "comes perilously clirse
10 suggesting that wlialcvci tlic govcinniciil says iiiosl be
treated as mic." xve Purliat, 532 F.3U at 849. In that

world, it is hard to sec what Is left of the Supreme Court 's
e u i n i i i a n d i n B a i m n ' t fi e n v t h a t h a b c . a s r e v i e w h e

"meaningful." 553 U.S. at 783, 128 S.Ct. 2229,

II.

Katiier than adopting a piesuinption of regularity, I would
apply clear error review to the district court's tlndings of
fact jwit as we have consistently done thniughoul our

Guantanamo cases. See. e.g.. .Mmvrfedi, 654 F.3d at 4-5
(reviewing diiiirict court fuel lliidiiigs fur clear error);
A i - M a d h w a n i v, O b a m a . 6 4 2 f . 3 d 1 0 7 1 . 1 0 7 4 - 7 5

(D.C.Cir,20ll) (same); Salahl v. Ghumo. 625 l'.3d 745,
750 (D.C.Cir.20tO) (same); .4/ Odah v. Lniied.Stales. 611
F.3d 8. 14-15 (D.C.Cit.2010) (same); Bemtmih. 610 F.3d
at 723 (same): Barhoumi. 609 F.3d at 423-24 (same);
.4w<n/v. Ohamu. 608 F.3d 1, 7 (D.C.Cir.20IO)(So long as
"tlic district court's account of the evidence is plausible in
light of the record viewed in its entirety, (lie court of

appeals may not rcs-ersc it" and. critical to this case,

"iwjhere there arc two permissible views of the evidence,
the factfinder's choice hctwven them cannm he clearlyerroneous." (citations omitted)). UniJer that standard. I
would conclude that the district court committed no clear

error by finding that the Report was insuflficienti}
reliable: that it committed no clear error by crediting
Latirs account of what happened only insofar as it

■ Ne>t

Ex. 120. P9.29

SOUTHCOM/000183

 Ladf V. Obama 677 P.3d 117S (2011)

4C0 U.S.App.b C 231
needed to: and (hat it adequately addressed the otlicr
revord evi Jeticc.

"corroborating evidence for any of the incriminating
sliiicmcnts in the (Rcporil." l.ati/. slip op. at 26. As the

district court c.xplaiiied: "No other detainee saw Latif at a
training camp or in battle. No other detainee (old

inicrrogalurs that he lied from Afghanistan to Pakistan,
A

1he starting point, of course, is the Report itscir. Sm
. twad 60!i r.3d at 6-7 (holding that the same clear error
standard applies to Tact lindings based on documcniary
evidence and inferences drawn from that evidence). The

district court's primary concern about the Report related
to the circumstances under which it was produced,

circumstances that, according to the district court,
increased the likelihood that mistakes had been made. In

particular, the court emphasized the (redactions  
summarircd in the Repttrt and anotlter report producctl
around the same time. Lni/. slip op. at (redactions   In
addition. (redacikms] 1'he Rcpon's heavy
rcdaciions—portions of only (redactions] out of
[redaciionsj pages arc unrcdactcd—make evaluating its
reliability more difDcuIt. 1he unredactcd portions
nowhere reveal whether the same person (redactions   or
whether someone else perfomied each of these tasks. And
because all the other fredactinns) in the Report arc

from fora Hora or any other location, with Laiif. No other

type of evidence links l.atil'io Al Oacda. the Taliban, a
guest house, or a training camp." Id.
The district court properly wvighcd the cumulative cfTeci

of these subsidiary findings. .Vee AI-AdtOti. 613 F.3d at
1105 06. According to the district court, those findings
"supportj I an inference that poor translation, sloppy
noietaking, (a-dactionsj or some combination of tho.sc
factors resulted in an incorrect summary of Latifs
words." t.tuif, slip op. at 26.

All of the concerns just described arc obviously rcicvani
to evaluating the Report's accuracy. It goes witboui
sjiying that the circumstances under which the Report was
produced and the evidence, or lack of evidence, of core

taken to .ivoid mistakes when the Report was produced
shed iiglit on iliat question. Likewise, it is undoubtedly

probative of the Rcport'.v reliability ihol it contains factual
ciTor.s. for the preumcc of a known error increases the
iikeliltuud that other information in the Report is

redacted, the district court was unable to evaluate the

inaccurate as well. And of course, it is also relevant that

accuracy of [redactions) by inquiring into the accuracy of
the Report's (rcslactioiis) In view of nil these concerns, the
district court found it c.spccially troubling that ncillicr the
Report nor any of the Government's other evidence
"providcrlsl any inforntation with which to conlirm
[redactions] used the liii^ level of care neeessaty to

the government has offered no independent corroboration

cnstire (redacticns] was accurate." /(/. at 26.

U.S. 147. I.<2-53. 75 S.Ct. 194. 99 LEd. 192 (1954 

~(r]actual errors" In ilte Report reitiforced the district
court's concerns. /</ Specifically, altliough the Kupon
states "that Lotif said he had been to Jordan to accompany

a friend who needed medical cniv for his handl.j ... Ldlif
has repeatedly told interrogators, and has provided
evidence to show, that he went to Jordon for treatment of

an iqjury- to his own. not a friend's, head, not hand." id at

15. In aiklitlon. the Report crmncously states that "l.atifis
unmarried and has no children." even Ihougli "a

declaration Laiif submitted for use in this litigation states
that lie is married and has a sort." U L.isily. in what even

oir iiillea^uvx concede *1217 is an "obvious mistake."

biaj. Op. at (redaciiomtj the Report's first page states thai
[mdaciions]

Also troubling the district court was the lack of
■

t'nr any of the Report's incriminating facts. Aficr all.
skepticism about the trustworthiness of unconoborated
confessions has deep, historical routs, so much so that a
criminal defendant "may not be convicted on hia own
uncotTofaoraicd confession." Smith r. United Stutes, 348

(noting that the nile's "foundation lies in a long history of
judicial experience with confessions"). And we recently
made clear that in these Cuanlanamo habeas cases "the

Idistricl) court mmt take {such an) absence of
corroboration Imo account in assessing the reliability of
the petitioner's out-of-court statements." A! Alwi. 653
F Jdat 19 (emphasis added).

Moreover, none of the subsidiary fact findings the district
court made about tlic Rcpon itself were clearly erroneous.

As this court acknowledges, "the (district] court cited
problems with the Report itself, including its subsianiiol

redactions, jrcdaciionsl its reference Latifs 'hand'
instead of hi.s head injury, its internally inconsistent
statements [redactions] and the perceived lack of
corroboration." Maj. Op. at 119 . And this court agrees
that " t(he inconsistencies in the Kcport may surest a

Nest

Ex. 120. Pg. 30

SOUTHCOM/000184

 Latif V. 0 bama, 67 r F.3d 1175 (2011)

400 U.S.APP."D!C. 231" "
documeni produced on the Held by inipcrrect irnnslutnrs

LaiiPs [redactionsj as so often occurs in the gome of

o r t r a n s c r i b e r s ' W n t 11 8 8 .

telephone And so. l.uliPs statement ubuui a

Noucihclcss. this court insists. ii]i is almost
inctmceivabic," id. at 1187, thai the inculpatory
information in the Report could have mulled from 'pour

translation, sloppy noteiakinj; [redactions] or some
combination of those factors." LuUf. slip op. at 26.

churity-workcr named Ibrahim Al Alawi from Ibb
encouraging him to travel from Yemen may have become
a reference to a jihadi rccniiler: his statemcm about
traveling to an Islamic Center in Kubul run by an imam

named Abdul Fade! may have transformed into one about
serving north of Kabul under an Afghan commander wiih

According to dtc coun. there is too hi^ a "level of
inculpatory detail" in the Report for it to have resulted
from such mistakes. Maj. Op. at 1187. And because the
inaimiimtiiig .statements "are intertwined with other
details in the Report that persist in Latirs current account

the homophonous mune Abu FazI: and his statement

of his trawls." the court believes, [redactions]

Abu lludayfa. and Abu llafs—Just as his statemcm about
a trip to Jordan for irentment of an injury to LailPs head

My colleagues' interpretation of the evidence is
undoubtedly plausible. Yet when one accounts for all nf
the Kepon's various problems, the fact that admittedly

became a statement about ireaimcm for his (fiend's hand.

true facts "arc intertwined" sviih contested inculpatory

.similar to names and statements Lutif later made. And.

ones also supports another plausible *1218 explanation,

although oniy [redactions] that appear ic have beer

akin to wltat h^pens in the children's gume of telephone.
In that game, one child whispers a phrase to another, svho

n b n u i t h r e e t e a c h e r s n a m e d A b u fi a k r o f t h e A r a b

limirates, Awba of Kuwait, and llafs of Saudi Arabia,

may have turned into one about fellow faliban soldiers
with the similar sounding (or identical} names Abn Dnkr.

Indeed, my colleagues nowhere disagree that all of the
names and stnlemenis appearing In the Report sound

[redactionsl are in the record and unrcdacicd. both contain

details that also jrcdaciions] appear in [redactions], details

in tuni w hispcrs it to a dtird. and so on. until the last child
announces what he or she lias heard. As anyone who has

which an [redactions] might have [redactions} if ttic>
were having trouble understanding [redactions] say

piuyed well knows, the whole point of the game i.s that
what the final child hears is buih recugni/ably similar to
(he original statement and set amusingly transformed, k'j.
Carol D. Ueonnig & Josh White. An Cidh

{redactionsl Obviously, moreover, we have no way of
knowing whether the redacted (redactionsj likewise

Dt-lamev Patu/ls iinfuir, WASH. POST.. June 23. 2007

(repotting rormcr-Cuinbaunt Status Review Tribunal
member. Lieutenant Colonel Stephen Abraham, as

'equalling] the guvcmincnt hearsay presented [to the
CSRTs) about detainees with a game of telephone"
(imcmal quotation marks omitted)).

Now imagine the game when, as may have huppencd
here, [redactions] and the Report produced "[i]n the
field." with the assistance of "imperfect translators or

transcribers." Maj. Op. at 1188. And imagine further, as
may also have happened here, that the "imperfect"
translator may have misheard LatiPs exact words, or the
Imcrrogatur may have misheard the "impcrrccl"

contain [redactions] Given that the circumstances under

which the Report was produced increased the probability
flf mistakes, given thai the Report contains mher 'hictiial
errors." .and given that the government has failed to
corroborate any of the Report's incriminuiing
information, {.atif, slip op. at 26. this explanation h at

least plausible—the only queslion for us when reviewing
fact findings, such as these, for clear error. ."Jve Awad. 6<1S

F.3d at 7 (rciieraiing that "[i]rthe district court's account
of the evidence is plausible in light of the record in its
entirety, the court of appeals may nm reverse it"
(quotation oinilted)). Bur sw Maj. Op. at 1192 (conceding
this cxplnnaiion is "possible." yet incorrectly asscniiig
lirat "the relevant *1219 queslion is whether thfe]
hypothesis is likely").

translation, or the "Imperfect" noletaker may have failed
to transcribe precisely what was "impcTfcctllvj"
translated, or that whoever wrote up a summary based on
iho.ve notes, (redactionsj may have faileil to understand

what e.xactly that "impert'ccl" notciakcr had written, or

B

that some combination of all those things may have

The disirici court did not stop with the Report. It also

occuired. Uiis problem is all the more exacerbated
when—again as may have happened here—the same
[ledacliotis] and fails to [redactionsl until [redactions] As

"coresidcrledj the explanation of events Luitlf has

ofTcted" - again in service of the critical question of
whether the Report was "sufficiently reliable." lutif. slip

Ne>t

Ex. IZO.Pg.SI

SOUTHCOM/000185

 Latif V. Obama, 677 F.3d 1175 (2011)

400U.5 App.D.Cr23i "
op. at 27. According to Lalif. with (he help of a charitable
worker, he left Yemen in 2001 seeking firce medical

Although agreeing that LatiPs story is relevant, my
colleagues nonetheless conclude that by describing it as

ireairaeni for the lingering effects of a serious head injury
sufrcrcd in a 1994 car accident Although the government

"plausible" and "not incredible," the district coun never
actually credited that account. But "reading the district

challenges LatiPs claim thai he left Vcnicn in 2(101
seeking medical treatment, h never disputes that "in 1994.

court's cxplanulion in [suchj a parsed manner that
overlooks its meaning in context" is inconsistent with

[UUn sustained head injuries as the result of a car

clear eiror review. IJnitfJ Stot<!s v. BrtKkenhtirnijik 575
F.3d 726. 741 (D.C.Cir.20fl9). Here is wlral the district
court uciually said about LaiiPs story;

accident and [that] the Yemeni govemmcnt paid fur liini
to receive Kvatment" in Jordan at that lime. /</ al S.

Besides his own nurralivc. Lalif also offered documentary

Tlie Court makes (his ruling (i.e.. about the accuracy of

evidence to corroborate his acenunt. 1°hrcc doeuiiiciKs uie

the Keponj having taken into constdcrntion the

panicularly noicvvonhy. The first, "a letter, dated August

explanation of events l.atif has offered. LatiPs story is
not without inconsistencies and unanswered questions,
but it is supponcd by *1220 coiroboratiug evidence
provided by medical professionals and it is not
incredible. [The district coun then rejected the

21. 1094. fiom a doctor at the Islamic Ho.spital in
Amman, Jordan." cont'irms "that Lalif 'wus admitted' oit

July 9. 1994 Tollow'Inga head injury.'" A/, al 23 (quoting
letter). Ihe second, "a letter dated August 18. 1999 from
Yenscn's Ministry of Public Health." states "that 'Jw [e

recommend that (l.aiif] return to (he previous center
ouiiiidc for more tests and therapeutic and surgical
procedures at his own expense.' " U. (aitenitians in
original) (quoting letter, which also states that I.atif "is

hard of hearing' and that "a wide circular holfe) wa<t
detected in [LatiPs] left eardrum"). And the third--the
most important is I.atirs intake form dated December
31. 2001 (i.e.. shortly after he was sei/.cd [rcdaciionsi

government's theory that Latif had told inconsistent
stories over the course of his detention and was

therefore telling a "cover stoiy." The clislrlci court
reasoned that the government's theory was based on
just "two isolated statements." one of which "does not
contradict (.aiiPs version of events." Kinaily, the

district court found the government's) other arguments
ultockine the credibility of LatiPs story ... similarly
unconvincing. The .smaller inconsistencies to which

Killed out when Lalif was taken into United .States

[the government) hufs) pointed may be no more than

custody, the intake fonn states that l.atif wu.s in

misstalemenLs or mistranslations: even if sonie det:iils

possession of "medical papers" when seized traveling

of luitiPs story have changed over titnc. for whatever

front .Afghanistan to Pakistan, hi. at 23 & ii. 12.

reason, its ftmd.'unentals have remained the same.

Tins documentary evidence, the district court found,
"coiToboratled]" LatiPs "piau-siblc" story. U at 20 27,
The district coun also rejected the government's

Lalif. slip op. at 27 28. What else could titc district court

conieiition that LatiPs e.xculpnicry account was a "cover

and corroborated enough to give it ai least some weight

story" and fotind the government's "attackls]" on the
"credibility of I the I story... unconvincing." Id. at 26. Ihis

too wiu an obviously relevant evidentiary conslileratlon.
A petitioner's version of events, should he choose to
provide one. can be relevant when a.ssessing the
govcmmeni's evidence. After all. the more believiiblc ilic

have meant other than that h found (.aiiPs account

cnnvlncing enough, plausible enough, consistent cnouglt,

against the government's evidence? And as we have Iteld.

"(mjcrcly hccaiwe a particular piece of evidence is
insulTicicnt. standing alone, to prove n particular point
does not mean that the evidence 'may be tossed aside and

lite next [piece of cvtdence  may be evaluated as if the
first did not exist.' " Satahl. 625 F.3d al 753 (allcralion in

petitioner's exculpatory account, the greater the reason to
doubt the govcmtncni's inculpatory one. Vf. ej?,.
Ai- AdiiliK Alt I'.ld at 1 Jft7 (weighing petitioner's 'Take
cxculpaioiy statements" in the govenimcnl's favor).
Having thus asses-sed I atif-s story positively, and given
that the story conintdicis incriminating int'ormation
contained In the Repoit, the district court ivlicd on ilie

original) (quoiing At-Adaht, 613 F.3d al 1105). .After all.

burden because (I) "there is a serious question a.x to
whether the (Report) nccuralcly reftects iJltPs words"
given (la) ihc circumstances under which it wus produced

story 10 support its finding that the Repon is ' not

and (lb) ihe "factual crroia" it contains: (2) "the

sufficiently reliable." luitif. slip op. at 25.

incriminating facts in the [Repon) .ve noi corroborated):)
and [ (3) j l.allf has presented a plausible alternative story

it is the pvemment that bears the burden lo demonstrate
the lawfulness nf deicminn. and here ilie clisirici court

concluded that Ihc govemnicnl had failed to meet that

Nezt

Ex. 120.Pg.32

SOUTHCOM/000186

 LaWf V. Obama. 677 F.3d 1175 (2011)
400 U.S.App.D.C. 231

to c.Nplain his travel." See l.ulif. slip op. at 26. h i.s in Just
tins circumstance—where doubts about the government's
evidence and conndcnce in the detainee's story combine
with other evidence to littally undermine the
govcmincni's case- thai a detainee may prevail even

[t.atjfs  adamant denials of any involvement with a1
Qaida or the Taliban: his serious head iiyury from a car
accident in Yemen; his inability to pay for the necessaty
inedleal treatment; and his expectation and hope iliat
Ibrahim Alawi would get him free medical cure."

without the district court needing to credit the detainee's

Appellee's Br. 57. Indeed, at least some in the

story by a foil preponderance of tin? evidence. To require
otherwise would, in eflecr. inappropriately shift the
burden of proof to Lalil .

gnvcmmcni appaiently agree. I'he commanding officer of
the Defense Dcparmienfs Criminal lnvc.stlgative Task
Force noted in a June 16. 2004 memo thai loitifs

statements lo interrogators had "been rciaiivcly
Given that the district coun found Laiirs story entitled to

consistent." Fx. 80. Memorandum from Criminal

.11 least some weight and given that such a llnding could

Investigative Task Force to General Counsel. Department
of Defense (June 16. 2004). Moreover, before making too

properly guide its evaluation of the government's

evidence, the only remaining question for us is whether
that finding was clearly cnroneous. h was not. As this
coun itself acknowledges. I^ilir s story, on its own terms,
is mn "intTinskiallyl impiausibltc]." Maj. Op. at
1163-94. And that observation is reinforced by

much of smaller inconsistencies it is important to
rcniumber that they appear not in verbatim transcripts

corroborating evidence .showing thai [.atif needed to leave
Yemen for medical care in 1994. that Yemen's Ministry
of Public iluaitJi recommended he do so again in 1999.
and that [.atif had medical papers with him when seized

be unsurprising to discover that minor ctroTs crept in as
I.aiif s account passed from his mouth to a translator (of
unknown ability) to an itiierrogaiur to iltv inietroguioi's
notes and finally to the interrogator's summary of those

crossing into Pakistan. 1'haT a trip abroad for lucdical care

notes—the lioi of wlitch represents the only evidence in

medical care in 2001 as wvll. And the fact that l.atirs

the record uf what Latif actuully suid in each of his
interrogations. As wc remarked in another Guantanaino
Hay habeas case, "[ijhe task of resolving discrepancies

had been necessary, not once but twice. rnake.s it more
likely that Latif would have needed to travel abroad t'or
condition was still serious enough to require such a trip in
19W. five yeats after he was first injured, increases the

odds that the injury cuniinued to be that serious two years
later in 2001. Equally imponani. the must plausible
reason for why L.atif would have had medical papers in

prepared by u court reporter with the aid of on audio or
vidcu recorjing. but rather in brief summaries of
translated interrogations. As nieniiuricd above, it would

among the various accounts ofl'ercd into evidence is

quintessentially a matter... for the district judge sitlingas
the fact-finder.".4/-iV/Hr/fniwu:. 642 F.jd at 1076 (Internal
quotation marks omitted).

his possession when nr.M sci/cd is that his trip in fact hud

Rather than applying clear error review to the disirici

a medico! purpose.

court's rcsululion of such discrepancies, this court
suqgcsts its cAvn story—a story nut found by the district

Attempting to cost doubl on the district court's favurabic
a.sscssmeiii ofLaiirs account. '*1221 this court insists that

the district coun "toss (cd  ... aside" tnconsisicncics in
Latifs account. M. at 1220; .we «/.«> id. at II9S 96. Hut

the district court did no such thing, it expressly

rccognirxd those inconsistencies, Latif, slip op. at 24 25
(summari/.ing the alleged inconsistencies); Ui. at 27
("Lutirs Story is not without inconsistencies and

unanswered questions."), ultimately finding the
govcminent's •'aitack[ on  the credibility uf Latif s story"
based on those inconsistencies "unconvincing." I.aiif slip
op. at 27. Particularly signtficum to the district court was
the fact that the "ftmdamcm.ils  of Latifs story] have
remained the same." tJ. A.s Latif points out. those

fundamcnta Is—appearing in more than a dozen
interrogation summaries and statements from December
31. 2001 (rcdaciionsi until May 10. 2009 "include

court, never argued by the govemmem. and based on its
own review of the raw evidence- about how Ibrahim may
have "prtxniscd IJitif the medical treatment he needed to
induce him to join the Taliban." Maj. Op. at 1I8K.

1-xhibrting heretofore unknown expertise in a! Qaida
recruitment strategics, the coun posits that "(sluch a
recruiting tactic (or cover story)" would make sense, id
"Laiifs medical records and his professed desire for
medical treatineni," the coun thus ./i/afr. "are therefore
consistent with the Report, not inconsistent." Id at 1188.
liw see United States v. Micfost^. 253 F.3d 34. 117
(DX'.Cir.20Pl] (en banc) ("ID istnci court facitlnding.x
receive either full deference under the clearly erroneous
standard or they most be vacated. Tliero is no de novo

appellate rvview of factitndings and no intermediate
between de novo and clear error, not even for findings the
court of appeals may consider sub-par.").

N « t

Ex.12O.P0. 33

SOUTHCOM/000187

 Utif V. Obama, 677 R3d 1175 (2011)

4o6 u 's7iipp.D.C 231
considered in context, is more like the lonely country road
and thus worthy of consideration when it comes to
c

The government points to several additional pieces of
evidence that, it believes, buttress its argument that the

Rcpon is *1222 reliable. The district court considcrcti all
of this evidence. Some items it fnuiid insufncicnl to

outweigh ii.s concents about the Report and its positive
assessment of Latifs story- fJlhcrs it found failed to

implicate Latif or prove the point the government hoped
to make. .As a reviewing court, our job j.s to dctcnttine
only whether those asscssinenis were clearly eironcous.
They were not.

First, consider the circumstances leudiiig up to Ijiifs
seizure by Pakistani authorities -circumstances to which
the district coun gave less weight than the govcmmeiil
would have liked. Laiiflcft Kabul in November 20UI and

then traveled through Jnlalabad iKfore eventually arriving
at the Pakistani border where Pakistani authorities

dciaincd hini. According to the gnvcmmeni. this path

mirrors that of Taliban soldiers retreating from Kabul.
Although not contending that this evidence is dispositive,
the government argues thai Iwcause l.aiifs admitted route
i s c o n s i s t e n t w i t h t h a t o f Ta l i b a n s o l d i e r s a n d w i t h

information in the Report, it is a helpful piece in the
pu/j^.ic. bolstering Its claim that the Report's inculpatorv
.statements are accurate.

Fair enough, but how liclptui? If this route is rornnionly
used by innocent civilians, then the evidence i.s not that
helpful at all. To understand why. consider a simple

hypothetical. Suppose the government were to argue in a
drug ease that the defendant drove north from Miami

along I 95, "a known dnig route." Familiar with I 95. we
would surely respond that many thousantLs of non<drug
traffickers take that route as well. Oivcn what we know

about our own society, the 1-95 inference would be loo
weak even to incntion. Cf Mnwrfyili. 054 F.3d at 6 n. 7
(noting that some conduct such as possessing an AK 47

is so "commonplace in Afghanistan (that it] dues not
meaoinslhlly distinguish an al Qaeda associate from an
innocent civilian"). On the other hand, if the alleged drug
trafTickcr had driven along an infrettucntly traveled
couniiy road, then a conicntion that that road was "a

known drug route" would carry more weight. The burden
of proof is 011 the govermnem to demon.straic whether
travel on a particular route to the l^akistani border, when

distinguishing between enemy combatants and iminccnt
civilians.

Based on nothing more than a few anecdotes, this court
suggests that LatlTs route was akin to titc country road. It
asserts that the details of l-aiiTs post-Kabul travel* arc

"analogous" lo tliosc we found •sironglly] 5«ggcsi[iver

of al Qoida membership in Vthmaii. Maj. Op. al 1197. But
how analogous arc they rcntly'? Uthman was captured "in
the vicinity of Tora Bora" at a lime witcn "most, if not alt.
oftliosc in the vicinity of Tora Bora ... were combaioms. "
lithman. 637 F.3d at 404. By contrast, the record in this
case contains no evidence that l.atif ever traveled through
the Tora Doita mountains, and the city we know he did
travel through—Jalalabad—has over 160.0(10 residents,

mo.st of whom were pre.sumably not combatants, see
Jtihliibod

Brttannica

Academic

Fdition.

http://www.Britonnica.
cunv'EI)c)icckcd'(opic.'299643.'Jiil.ilaba(} (last visited Sept.
20, 2011) (estimating population as of 20Q6 at 168,600).
In Ulhimn, the detainee had not only taken a particularly
suspicious route, but also was captured with a "small
group" that included two "confessed ... bodyguards for
Osuma bin Laden" and another admitted Taliban fighter,
all three of whom Uthman had studied tvith at the Furqan
Inslitutc. "a religious scJiooi at which other men were
recruited lo fight for Al Qacda." *1223 Vfhman, 637 F.3d
at 404 05 (inlemal quotation marks omitted). Oac of the

bodyguards "described the group a.s 'brotiicis' retreating

from battle.' " Id al 405. Here, lj«if told interrogators
that his Afghan guide was the only person who
accompanied him to the Pukistani bordiv, L\. 15.

Summary Interrogation Hep. (Mar. 6. 2002). and the only
evidence to the contrary ore [redactions] My collcugues
accuse the district court of "fail[ing] even fo consider"
L a i i P s r o u t e . I d . a l 11 9 5 . B u t t h e d i s t r i c t c o u r t d i d

consider it, expressly acknowledging that "Abu Khalud
arranged travel for other detainees along the same route
Latif reportedly took to Afghanwian." Lmif. slip op. at 10.
Given that the govemnient failed to demonstrate that
route w-as towards the country road end of the

I •S.l-countiy road coiitinuuni- i.c.. that the evidtmec was
sufficiently probativfr the district court committed no

cleui error by Ihiling to "fiictor f} (iij Into [its] decision."
Maj. Op. at 1195.
Second, consider the govemmcnt'.s argument that "(.aiif
was recruited by an al Qacda member" in Yemen, a
theory the district court found the govcnimcm had failed

Next

Ex. 120. Pg. 34

SOUTHCOM/000188

 Law V. Obama. 677 FJd 1175 (2011)
400

U

D.C.

231

to prove. Latif. slip op. at 2S. To support its tlteoo. >hc
iiavcrrment pointed to evidence allejicdl)' showing that
l.atirs charitable benefactor. Ibrahim Alawi. is aciu»lt>'
an al Oatdu faciiiiator known as Abu Khalud. whose real
name is Ibrahim Ba'alawi. Some of this evidence could

ccnainl> have led a reasonable factfinder to accept the

govcmmcnl's interpretation, including that ••Ba"alawi"

and "Alawi" have similar spellings tmd that the route
Latif took to Afghanistan at Ibrahim's urging was the
same path reportedly taken by other dclaincc.s olio, unlike
l.aiif. admit to having taken that trip to fight alongside the
Talit>an and seme of whom have also admitted, again

unlike Latif, to being Abu Khalud-rccruits. That evidence,
however, liardly forecloses the district court's eoniniiy

finding that the govcmmeni h.id failed to prove by a
preponderance of the evidence that Ibrahim Alawi was
Abu Khalud. To repeal, although we have treated
evidence that a petitioner reached Afghanistan along a
"route similar to the paths of admitted al Qacda members
now in U.S. custody" as a plus factor in delcmiiniiig
whctlier that petitioner was "part of al Qalda. t'llmian.
637 K.3d at 401. we have never suggested nor has the
government shown that this particular path is so uniquely
aiisociatcd with al Qalda recruits that a district court

clearly errs when it trcacs such evidence as more akin to
traveling along I -95 than a lonely counirs road.
Tlic record contains ample addiiionat cvitlcnee that
supports the district court's finding. Latif introduced
expert declarations c.\plaining that "Ua'alawi" and
"Alawi" arc distinct Arabic names and that both arc

common In Yemen. Laiif. slip op. at 18-19 Notably,
therefore, Latil^s interrogation summaries all refer to
some variation of the tiaine Ibrahim Alawi but none

include the "l)a." and none mention Abu Khaiud. By

contrast, interrogation summaries for sevxn of the eight
detainees mentioning the al Qaida facilitator naiiwd Abu

fill, with a short beard and moustache, and around 27

years old. with a visible injury on his face caused b> a
bullet injury sustained in Bosnia, with one daughter
named  redaciionsJ and as being from Ta'iz. not Ibb. Id
IJui uv Mt(i. Op. at 1198 (dismissing these dilTcrences
because Latif s descriptions of Ibrahim Alawi appear in
interrogation summaries produced after Latifs initial
interview). In light of (his mixed record it is sclfievident
thoi "there arc two permissible views of the evidence."
meaning that "the factt'mdcr's choice bewvccn (those two
views] cannot be clearly erroneous." .Iwwr/. 608 l-.3d at 7.
Scxu consider record evidence that, according to this

court, sliows "that Lutif stayed al al-(^ida guesthouses."
Maj. Op. at 1196 Tliat evidence consists of [redactions]
which the government claims include [redactions] The
[redactions] contain [redactions] along with [redactions]
Seeking to connect these [redactions] to (redactions] the
govcmmcm argues that the Ircdactions) the [redactions]

and the [redactions] The government also points to an
(redactions) Finally. Ihe govcmmeni contends thai the fact

that [redactions] buttresses il.s [redactions] given its
Ihcory thai Ihe (rcdactionsj contain [redactions]

But the district court found that the [redactions] the
govcminenl points to "is not [redactions] The district
court based that finding on the dilTcrenecs between
Iredaciions) and the (redactions] as well as the fact that
(redactions) is not (rcdnctions) The district court also
noted l^alifs innocent explanation for not having his
passport- that he "gave it to Ibrahim to use in arranging
his .SUV at a hospital." At
Ample record evidence supports the district court's
factual anuly.sis. At the most basic level as the district
court noted. Ircdactions) Moreover, (redactions]

Ba'alawi" but never "Jbrahiro Alawi." o/.. mid ihe eighth,

e.vplaiiiing that cvxn the apparent jredacitons] between the
[redactions] is misleading given that (redactions] Indeed.
Ircdactions] implying [redactions] In addition, as

who apparently used the name "Alawi." is a detainee this
very district court, in ,i dinerent ease, found tint erediblc

Ttiis court nonetheless accuses the district court of

Khalud refer either to "Abu Khalud" or "Ibrahim

bccau.sc his statements confiicted with those of several

other detainees, id at 19 n. 10 (citing Hix/tdi v. Oi^uma.

717 F.Supp.2d 21. 3.5 CD.D.C.2010)). Uuixir Moj. at
1193-95 (ignoring the district cwirt's adverse crcdibility
finding about that detainee). Moreover. Latif described

Ibrahim to Inicn-agators as "skinny." with a "big bc.vd"

and as "30-40 yrs old," as having two
children- [redoctionsl a boy. and (redactions' *1224 a

girl, and as being from Ibli. Latif. slip op. al 19-20 By
coiitrsst. nlher delainvcs described Abu Khalud as short.

I redactions)

overlooking the govcromunf.s expert evidence that
[retlactiuns] By that theory, lutif could be uiiy

(redactions] and mnybc he goes (redactions) But the
d i . t t r l c t c o u r t c o f fl m i l i e d n o c l e a r e r r o r w h e n , a f t e r

considering Ihe [rcdactinns] it concluded that [redactions]
finally, the district court's reliance on Latifs explanation
for not having his passport Is plausible in light of other
record evidence about the practice of at least one liospitai.

the Islamic ilospital in Jordan, nf taking foreign patient's

• i f V. . " - N e y t

Ex.120, Pg.3S

SOUTHCOM/000189

 Utif V. Obama. 677 F.3d 1175 (2011)

400U.S.Apj).DC.231

passports "lo guarantee that (those) patients will not leave
the country betdre settling their bills." Pefr Trial l-x. No.
7. Morcu\er. alihougli leaving behind one's passport with
an al Qaida operative at an at Qaida run guesthouse inigtii
suggest al (}aidu unHiation, tee Al Ahri 653 I'.jd ul 17.

such a scenario is several inrerential steps removed from

the only relevant fact we know about Latif that he ilid
not have hU passpim with him when seized. To be sure, a
reasonable raclfinder might have interpreted this evidence
dKTeruntly. Yet again, the record contains cnmigli
evidence to support "too permissible vicw.s of the
evidence." AmM bUK KJd nt 7 (quotation omitted),
meaning that "the lacifimlcr's choice bclwx'cn  iho.sc two
views) cannot, (therefore.) be clearly erroneous." Id

summarizing other evidence introduced by the parties lo
prop It op or knock it down. Ftmilly. the district coun
examined the cumulative effcci of various evidentiary
concerns on the Report's reliability. When read in its full

contc.\t. the district coun's opinion suffers from nothing
like the flaws that we reviewed in Af-Adahi

This coun uses .-!/ .Adahi lo turn the presumption of

district court lawfulness on its head. Rather than giving
the district court the bcnclti of the doubt, it seems to
assume that the district coun considered the evidence in

isolation and ignored key facts. Take, for example, the

contention that the district court tossed asiife and
considered in isolmion alleged inconsistencies between

statements attributed to Laiif in different interrogation
reports. Maj. Op, at 1220. This argument fails to
recognize the leeway we have afforded district courts lo

U

The court group.s many of its criticisms abtrut the district

court's fact nnding under the catch-all header of
At-Adahi. Aecurding *1225 to my colleagues, the district
court took an "unduly atomized" approach to the
evidence. Maj. Op. at 1176. The district court did no such
thing.

Absent some aflinnative indication to the contrary, wc
"prcsumtc) that the district coun knew and applied the

law correctly." United States v. Mauling. 557 F.3d 658.

668 (Q.C.Cir.2009). Such afrirmativc evidence of legal
error was quite obviously present in .M .Idalii, as the
"fundamental mistake" we Idcntiricd In that district

court's opinion makes clear:
Al-Adahi's ties to bin laidcn "cannot prove" he was
part of Al-Qalda and this evidence therelorc "mu>i iwi
distract the Court." The fact that Al Adahi stayed at nii

al-Qaida guestliousc "is not in itself sufficient to justify
detention." Al-Adahi's attendance at an al-Qaida
training camp "is not sufficient to carry the
Ciovemmeni's burden of showing he was a pan of"
nl-Qaida.
.il Adtthi. 613 F.3d at 1105 (emphasis added) (quoting

district court opinion). t)y contrast, here the district court
placed the Kcport, which the government concedes

represents its "primary" piece of evidence, Appellants'
Br. 10, and on which the govemmcnl admits its "case
turned." Appellants' Dr. 5, at the center of its anal\sis.

The district court devoted (wo and a half pages to
analyzing die Rcpon and then another liRecn pages to

resolve discrepancies among various accounu in other

Guantanamo cases. In Al-.Madltwmi. we found no error
in the district court's decision lo credit two different

detainees' interrogation summaries even though the
detainees' statements contradicted each other in certain

respceus, reasoning that the "wsli" of "rc.solving" such
discrepancies "quiniesseniially" belonged to tiie district
emirt. .■lUMadlncani. 642 F.3d at 1076-77. Yet the only
indication that the district court in that case had actually
resolved the relevant contradictions between ttiv two

reports is its bald assertion that those reports are reliable;
(he discrepancies are never mentinned. let alone analyzed.
Ily contrast. a.s this court concedes, the distrkl coun here

expressly noted that if had "taken into consideration the
explanation of events Laiif has oflercd" in assessing the
Report and e.xpressly acknowledged thai Latifs story is

not without "inconsistencies and unanswered questions."
Maj. Op. at 1195. The distfict court then spcciltcally
asscssed the (wo primary inconsistencies the govcmmeni
relied on. as my colleagues implicitly acknowledge. Id. at
1195-96. Finally, the district court explained that any
concern about "smaller inconsistencies." moM of which it

had earlier summarized, was oulweigiicd by the
possibility tliat they had resulted from translation or
transcription errors and by the fact that the "fundamentals

[of l.atirs story ) have remained the some," iMtif slip. op.
at 27. For its part, this court reluciamly recognizes all this
as "a welcome step loward *1226 the holistic approach to
Uic evidence we called for in At~.Adahi.' Mqj. Op. at
1195. But it is in fact more than that. If the district court's

implicit rcsttUilion of discrepancies in At-Madhwani was
adequate, then it follows a faniun (hat SO loo W3.s this

district court's far more c.xpllcit ia*atttient. My colleagues
acknowledge that their approach is In tension with "tiic

. M»*t

Ex. 120, Pfl. 38

SOUTHCOM/000190

 Latif V. Obama, 677 F.3tl 1175 (20I1 

400 U.S.App.O'C. 231
usual practice" of "as»im(ing  the [dLstrict] court
considered all the evidence." but nonetheless find this

Justined by the "unusual puslure of this case" i.e.. u
he-said, she-.said cose involving detainees at Guuninnnnto
Hay. hi at 119.1. But if we lake seriously the notion that

district couns are better at finding t'acts and determining
credibility, then we should be all the more eager to defer

court expressly considcrtKl virtually all the evidence this
court points to—including every single item of evidence
the government claims is of primary or even secondary
rclevaiice. Cumpare ui at 1193 95 ("correspondence"
between names appearing in the Report and names J.atir
later mcnlianod to interrogators}, with Lalif. slip up. at
IS-16 (discussing same): compaiv Maj. Op. at 1194-95

to their cxpeitisc rvhcn the stakes are high and when the

(l.aiirs travel route from Yemen to Afghanistan), with

case comes down to Itc-sald. she-said-that Is. when it

rests entirely cn credibility and how one interprets the

Latif, slip op. at 10 II (discussing same): cnmpari' Maj.
Op. at 1195-96 (purported inconsistencies in Latifs

facts.

statements), with Lalif slip op. at 37-38 (discussing

The only afTmnativc indication this court identifies
allegedly showing that the district court took an unduly

same); aimpare Maj. Op. at (redactions] cumpare Maj.
Op. at 1197-98 (circumstances ofLatirs ticpanurc from
Kabul and subsequent *1227 seiymre by Pakistani

alornized approach to the evidence relates to the

circumstances of Latifs capture and to [redaaions] The
court makes much of the fact that in weighing the former,
the district court employed language simitar to the
language used at one point by the district court in
M-Adahi specincolly that "the timing of [l.atifs)
departure ... in fwi sufficieni to create an inference that he
was involved in fighting." i.aii/, slip op. at 27 (emphasis

authorities), with Lulifs slip op. at 12-13. 25. 27

(discussing same); ttmpara Maj. Op. at 1198 99
(evidence that (.atiPs benefactor. Ibrahim Al-Alawi, is in

fact tlie A1 Qaida facilitator Abu Khalud). with Latif. slip
op. at 17-21. 23-28 (discussing sante). As for the claim
that Latif may have (or may not have) traveled across the
Puldsiani iKirilcr with Talibun-alTiliiilctl mun. the district

cuun's silence is easily explained; (redactions] both of

nikleil). The court, however, ncglceis to mention that this

which [ledueiions] already chosen not to credit. But .tet

.sentence appears in the middle ol a paragraph csaluating
the credibility of l.aiit*s account, which itself appears in

Maj. Op. at 1196 (uiiretleclively treating this omission as
an creor distinct from the district court's analysis of the

the middle of an c.slendcd assessment of the vt>mhincJ

Report).

impact of multiple pieces of evidence on the Repon'.s
reliability. This "parslingp" of the district court's words
"overlook (sf what those words "meant   in context." an

experienced district court judi^ has totally ignored

To dcicmiine. as this court apparently docs, that an

As for the district coutTs decision  redaciions] my

relevant evidence and so committed legal error because
his iwenly-scvcn page opinion omits mention of a handful
of icniary items plucked fnim thousands of pages of
record evidence not only ignores the presumption of

colleagues offer no convincing explanation for why the

district court lawfulness, but also imposes or that conn a

district court should have considered evidence that it

virtually impossible burden. As the First Circuit put it.
"[t]hc district coun could have wTiitcn a 300-page
duci.siun on this case, hut the far more compact

approach that is. again, inconsistent with dear error

review. Sue Hrnck,;nborru)ik 575 F.3d at 741

found does not implicate l.alif—unles.<s. of course, that
finding was clearly erroneous, something they never
claim. Suppose, for example, that a witness in a burglary

cose testifies to having seen a man with a similar build as
the dcfendani walk away front the site of the crime. If the
factfinder concludes thai the person the witness saw was
not the defendant, then surely ihe factfinder can
reasonably set aside tlic witnesses' tcsiimunv in assessing
whether the defendant was the burglar. So too here. Once
the district court had dciennincd that jreclactions) did not

implicate Lalif. it was cmirely proper for it to put litem
aside when evaluating the rest of the evidence
The remainder of the coun's /(/ AOalti critique resis

entirely on the claim that the district court "ignore d]
relevant evidence." Maj. Op. at 1193. Not so. The dislrici

tuscssnicm it made was entirely adequate under Rule
Addamat Corp, !■. (tpvn Software FoundaUau.
iiH'.. 152 F.3d 48. 55 (Isi C"ir.l998) ("(T(he district court

was not required to make findings on every- detail, was
not required to discuss uti of the evidence that supports
each of (he findings made, and was not required to
respond individually to each evidentiary or factual
contention made by the losing side."). .Vei* abo SchiUing
V. S v t m i i ^ v r - C u a i m i n s C o . 1 4 2 F J d 8 2 . 8 4

(O.C.Cir. 1944) ("While counsel may be disappointed that
findings do not discuss propositions sincerely contended
for. that, alone, docs nut make them inadequate or suggest
that such propositions were not understood by the
court."); .UttiUronn;. lac. v. Paig Corp., 789 F.2d 903. 906

Next

Ex. 120. Pg. 37

SOUTHCOM/000191

 Lattr V. Obama, 677 F.3d 117S (2011)

400 U.SiApp.D.c! 231
(Kw).Cir.1986) ("Wc presume thai a facinncler reviews all
Ihc evidence prescnicd unless lio explicitly expresses

the disinci court to clarify <emphast$ attded)). 13ut nothing
ill our caxe law requires, nor would 1 now hold, that the

otherwise."); t/ Paerto Rico Afarinme SfiippOig Authority

mere fact thai a diMricI court that obviou.sly and carefully

V. F e J r r u i M a r i t i m e C o m m ' n . 6 7 R F. 2 d 3 2 7 . 3 . ^ 1

(D.C.Cir.l982) ("it is rrivolous l(i contend tliat the

considered the entire record failed to mention a couple
items of icniary importnnce refleus tindiie atomization of

Commission did not consider the evidence because it did

the evidence.

not catalogue every jot and tittle of testimony. .Nothing i.s
gained by a laundt>-lisi ruciial of all evidence on the
record supporting each view on every issue.").
in.

rite district coun'-s opinion Is by no means perfect, rtui
clear error review- deniiiiids n good deal less than

perfection. HveMimtsoft, 253 F.3d at 118. Thttt said, had
ihc district court oihcnvise Ktninnitled legal error nr made
some other mistake requiring remand, then I would have
asked it tn clarify whether it had iitdccd considered this
evidence holistically. See. e.g.. Stththi. 625 F.3d at 7.^3

(noling that "the district court generally" considered all
the evidence together but that "its consideration of certain
pieces of evidence may have been unduly aiomitred" and
that ".mice we [wcrc  remanding" wc would cncounigc

For the forcgoitig reasons. I would al finn the grant of the
writofhabcus corpus.
Parallel Citutbins

400ll,S.Appl).C. 231

Footnotes

{ Spucifivally. the Supreme Coiiit held that (iuaiitiuuimc dctuliiees inu.sl have "the mcan.s lu supplement Ihc leeurd on review."
HmunedU-ni;. 553 l.'.S. at 78(i. I2X S.Ct. 2324. und ih;il the court enndueiing habeiu proceedings naiM have aulhoril) (1) "to iLvses.>
the .suDleiency of the (ittvernmcnl's evidence apain.'it ttie deiiiiiiee." W.; (2) "to tidmii und consider relevnnt exculpuiorv evidence."
li/: (3) "to inake a dcierminaiinn in light of the relevuni liiw nnj facts." i<l ni 7X7. I2X S.Ct. 2229: and (4) "to formuliiie and isMic
upprnprlaie orders for relief, including. 11 neeessuiy. uit order ■Jlrvciing ihe prisoner's release." iri
2 F.ven tlu panieulur prcsumplinn at issue in ibis ea.se' -ilic prcsuinpiion lint on olTieial gavemmcnt record wa.<i aecumteh
produced -applies in ordinary criinlmil hitheas ctwos. .S'rr llohht v, Uiackburn. 752 F.2d 1079, lOXI (5ih Cir.l985l fOfTicial
reeord-s, such a.s this .signed (state ewirt guilty pleaj. are entuled to a prcsumptian nf regularity and are accorded great cvidcniiaty
wciglii" in a federal linbeas proceeding. I; >.r iihn Kafker v. .\fangiu. 738 FJd 714. 7 7 (5ih Cir.l9li4I ("miiiiile enin of the (stelcj
emin" is entitled to a "presumption of regularity"); Tlivmpson c. hlelle. 642 F.2d 9%. 998 rSth Cir-i91{ l ( "rhe district cwun

cnuld properly rely uii the regularity of the state court's diH-'unienis in preference to Thompson's own .seli'vscrving le.stimany."):
iv.-hth'r V E-uiUe. 505 l-.2d 926. 929-30 {5th Cir.t974) (iudieiinciii and docker slteei arc cnliltetl to presumptinn of regularity)
lite same presumption aimltes to oincial govemmcnt records in a prnhutinn rcviication proceeding, a cimimsiancc like halieas in
which tiheny is on the tine. Sec limitedStatex v. //inntiu, 9.44  '.2d 840. 846 (7ih fir. 19911 (prohaiion oflieer's reponl: ''iiirerf
StaUt V W-Thekc. 853 l'.2d 5.37, 539 (Till fir. 1988) ttreaimeni eenier's report): Caitcd States v McCMum. 677 F.id HI24. 1026
( 4 i h r i r. l 9 8 2 ) ( s - i u n c ) .

2 When l.ulifs flrsi inicrrogaiion took place and the Repurt W'a.s prepared, the (iaiernmcnt liad no cxpcciation (hat its intelligence

would be used in litigation. Instead, the (tiwcmnieni xras seeking ueeuraie. uctionnlilc intelligence to pnWvet the eoiintiy from

imminent aiiaek. Die liovernment had the strongest inceiiiise tii produce neeiirate reports and no incentive to fnunc innocent
hysiunitcrs as 'I'ulilvan operativc.s.

4 riic Covemnicnt's aiguntenl for j presumption of rceulariiy is utuunhiguous. Olvserving that "lilt is welt cMahlishcd that there is a
strong 'presumption of regularity' fur aetioiis of govemmcm otTiciais taken in Ihe cnuisc of (heir oOieial duties." .Appcllant-s' Ite

30 (quoting ( inri'd.Virre.'V. ('/(t'»m-<>//-Vri«i</.. bte. 272 (I.S. I. U-1 J. 47 S.Ct. 1.71 l..l;d. 131 (1926)). the Govemmeiu argued
that the expcn desicriptions  redaeii(vns  "shoutd have been eonsidered in light of Ihc general presumption tliat goeernment otiieiab
arc property canying mil their duties." Id Developing this argument by analogy, the (iovemnieni urged that "the factors
supponing [ihe  aecuraey" of  redaelioiis  screening iiiterv icw reports are "even stronger than in the imniigruliiw comexl" in which

J tmrder agem "cannot be presmned to he ... iwhcr ituui an aeeiiratv leeitrder of llie alien's siaicincnl. Id at 3U-3) Iqitoling
Kspiiiozo V. ISS. 45 l'.3d 308. 3)1 t9th l"ir.l9')Si). Ttse dissent's elaim that our holding goes "well beyond what the govcromcm
■

V

hsWt

Ex. 120. Pg. 30

SOUTHCOM/000192

 Utif V. Obama, 6T7 F.3tl 1175 (2011)
400 U.S.App.D.C. 231
actunll) .irgucs in iis hricfs" is unfounded. Dissenting Op. al 121»
5 need mil decide pfceisely hois much more ihe dciuiiiee iini.si slum in mctenme ihe pre.siinipti<ei of regiilaxily. Depending on
ilie citcumsMiiecs. courts have required litigsmis to meet sumlards ranging fmrn "clear imd spccirtc evidence." KiKgs .Vat 7. 2'>5
K.td at 21 (lavI, to "clear and convincing evidence," Kigfuin »■ Snrrlt. 238 {'.Sd 954. 955 i8lh Cir.2001) thaheas); w tibo Uniieii

Maicfv .irmtrmt)!. .<1? U.S. 456. 4W. 116 S.Ut. l4Wi. 1.U l..h'd.2d 687 (1996) ("clear cviJenee")(selective projwodonl; Dep r
cr Ufcw 1- irtpkn. 494 U.S. 71.<. 72.3. 110 S.Cl. 1428. 108 L.i.d.2d 701 (1990) l" A neednial evidence ssill not oiercume lite
prcsump.ion of rcguloriis") (cfivclivc assistance of counsel). i7° Siatnu/n. 494 l-'.Jd at 1117 (inning a "less stringent standard"
applies in at Ic;v4 come l-OI.A ensesliiuoiiiig \M'f .Irchive,' K- H^airtb Admin c Finish. 54  U.S. 157. 174. 124 S.<7 1570. 158
L.lid 2d 319  2(lti4()). liien ifive assume a Jeiamee may overenme the presumption by a mere preponJcnince ol the evidence.
I.alii'cannot meet that standard.

5 The dis.sem repeats a eriilcisrii oi'ilie Kepon 111.11 ivc luve already rejected for similar docuiiKnts-nantely. that it is inlieNiiily

unreliilhk because it ~canlain(.sl multiple layers of hearsay." Dissenting Op. at 1210. As lie clarilicd in Al-Bihon:. Iioiveicr. an
interrogation report involves just one level of hearsay - that of Ihe interrogator. 590 F Bd ul 879  .ikc the diary iransiatcd in
Huriipumi. ;tml unlike the anunymoiis hearsay in Parhni. I.atif.c staictnenis to the inlviTogutor nre " the underlying reprrling on
uhich the gnveminent's iKCceriiona arc founded." thirhmimi. 609 I .Sd nl 438. I he aci of translaliun "does not affect (an
Imcrtogation report's) status" Al Biiuini. 5V<) I-.3d ul 87*): .rcr ttarhoumi. 609 I'.3d at 4.30-31. And. a.s Partial and At- Hihiiiu
demonsimte. courts arc capable of determining nheihcr oflieiai goi eritment records that conuin hearsay merit the prcsuntplinn ol
regulariiy.

7 Irediielionsj

S Aeeordii>g to I Jiif. 4000 rupcc.s were north about SbO at the lime. Tr. (ias.sHied Mcrlis I leoring (June 8. 20101. at 5-6.
9 The Re}mrt stated both that Ibrahim onncd a tavi in Kanduliar iind that he took l.alirto the iaiibun. who trained him and suaimied
him north of Kabul. In March 3002.1.jiif.said Ihraliiin lunk liim dirceily to Kabul in a laxi p.iid for by- Ibrahim, (redactions]

10 (reduethHuj
] 1 Heeausc he Ihinks the prcniinpiion of regularity sluuild nut apply in the Report, our dis.sunting colleague g'iie.s considerable iveighi

to the Ooiernnieiu's lack uf "i«Ji7>craA.'«( corrohoraiion tor any uf the Report's incriminating IhcLs." Disseminp Op. ai 1217

{enipha.sis added]. Hut eien wilhoul any presumption in faiur of the Cinvenimcnfs evidcnee. "we have not previously regarded

coimNimlion as a requircmcni of a meaningrul huhe.cs proceeding." .1/ .l/iri. 653 l'.3d at 19 In At Atwi. m in laher esses, we
"upheld a detainee's detention ha.scd on ci ideiice dial euiisisted almost entirely of the detainee's imn testimony * IJ (ijuuling
Al .\Uuil.wtMi. (>43 I-.3d at I074I (citing Al HifMiii .*90 1" 3d at 870). Wb said a lack of corhiboraiion. (hough not neeescarii;
decisive, shouki he taken "into uccoiinl in assessing the icliahility of the petitioner's out-of-court sialcmems." hi I liis principle Is
of no mninenl here. hceausB l.alif.s .sole challenge i.-. to llie aveuracy of a prc.sumplivcty reliable guieiliiueiil doeuinent.

Ineidcntfllly. ii is not quite true that I.iitii's uiin siiucmcnts nrc the only eorroboration for the Repun.  rcdiieiioits 

J 2 On appeal. 1 alif retorts dial the (iovcmmenl did not put on any iiiincs.sc5! either. Appellee's llr. 51. litis misses the point. The

dmher of the Report lud m> incentive to misreprc.svni l.aiifs stutcmems uptm eiipliice. a.s ilic Report was not prepared with
lillgiUion in inhtd. [.aiif. by eonlrust. has every incentive in lie iihom Ihe purpi'se of his visit. His ku'lure to icMili' atul suhjcel
himself III cross e\aminaluin Iherel'orc undermines his efcdihilily.

13 Hiroughmit itie military and jodieitil proceedings to determine whether he is properly detained, louit's tlefense has been that the
slQtctnen.s in the Report were misatirihitied to hint. Hefore lite (.'umhnlimt Stmui Review T rihunaL. Ualif said. "I lotd you I iiHsn'i

the person they were referring to. I never went to Ihe places ihiu you stttd 1 did; I tun not the person this ease is based on." I;x. 31)
(ISS' 156 CSRI T'r.k at 3. (k-fure the district eoun. I.ulil'"argued that the statements in the  rcdnctions  Reptirt were likely a

priyluel oflttiMriMlslalioti. misalTrihulioii. or some other mistake." .Appellee's Br. 9.
] 4 Allliough l.nlif s more recent dcelarutioii in lite disiriei court leave.s out sonic of these details, he does not deny taking this niuie.
Indeed. laUtl" cites the eonsistenei of hi.s (iuaniananin interrugaiinns » evidence tliat his current story is true. Appellee's Br.
18 33.1.aiil's recent deiTaraliim eonlimt.s he took a hus to Qiietiii and a iilvI from (joctta to Afghunislan. and then stayed in Kibitl

hefore TCtuming to Pakistan

M e n

Ex. 120, Pg. J9

SOUTHCOM/000193

 Utif V. Obama, 677 F.3d 1175 (2011)

406u.S.App D C. 231
]5 Itic JisHct court did iKii. ii-s the di:i5cnt !su^csi«. "ircai      lliis  evidence as murv' akin u« trjtclin^ alung 1-9.1 ilian a kwol)
ciiuntrv to:ul." DLyscming Op. al I2H. I lie cinin did nol consider il ;il .ill

VVc do iKii "I'lmtl / " thai this i'« iticiite "du(e.s  in liid iniplieale" l.iilif. as the dissent .tccuscs us ni'dtting l)i»entiii£ Op. at 1207
Katlier. isc hold the district conn's Ondings .<uspcct in llui the ciniri "failed to utkc into accuuiii" related esidence uhen it ntade
thnsc nnding.s./)/ .IiAi/m. fil3 F.Jdat I lOX.
17 ifed:ietioii< 
)g Indeed. J.s die district euiirt acknowledged, the reeruiier is ideniilled att .Maui in another detainee's intenog.i(i<in report. The
district stHirt dismissed this evidence, ohsen-ing that In aiHithcr ease, the district court Inid discredited this deiainee'.s statement
about an unrelated dciail-'thc tinting of amuher deitiinee'.s arrival al a guesthouse—because it eonllieted with iidict detainees'
suilcmenis. ImiiC 2ill(l I'.S. Disi. t tiMS 113.196. at ■'26 ii. 10. slip op. at 19 n.Itt (citing .-Ifirfoh v (Jhamit 717 1- Supp.2d 21. .15
(I).I).CM010)J.

19 Judge KendcTson uoiild reverse the district etsun's grant iifliuhens corpus tmiriglU. In her view, "remand is unnecessar)' because
'the reeiifd pcnnits onlv imc rcsnlutlun nl the factual Issue.' " Ctineurring Op. nt 12(15 (quoting I'uUiium Sium/anfy. Sviiit. T5A
U.S. 27.3.292. 1(12 S O. 1781. 72 l..t:d 2d «6 (19X2)1 (iee.mse iil'die legal errors «e have both ideiilincd. I find il unneccssarv to
decide that question. Remand is warranted nut only when "further facl-ltitJing by the di.sttict court is necessary." hut also when it
"MOUlJ be helpful." .-l/.l/ii-i. 63.3  -.3d at 16. This is such a e3.«e.
] As Judge iinmn evplains, l.atlf subsequently nude statements to intcrnigators ui (iiianiananm (3-ay ihat cimlitm irtseriiiins in the
Report ahiiui his lunnctunn. moiitcr's name, fiuiie of travel Into Afghuiiisiun and his earlier .journey to Jurdoii for meiiiciil
ireaiineni. I atlf nlso told (iuiutlaiianio interrog.uiirs the names of several men he met in Al'gliaiiistan which names euncspiind to all
of the tiiLmcs listed in the Report. In aJdliloii. the gio emnient's ehaln-ol-eusiorfy doeuinem listing l,»tir» possessinns states iliat
LaiilTiad four thuu.saiul I'iikisiuiii rupees uhen capiuied~-e«itlimiiiig another detail in the Report.
2 Judge Drown cites a variety of csamples :ot instiiiice, l.-iiifs iletlaraticni states that he is rtiairied lUtJ has one son but he told
intecrugauin that he "uouid like to gel nuirrieJ and have .vonie children"; 1 atifs declaration slates that he planned to meet Ihrahim
in PakisUn but he told inietrugatois that he planned to meet Ihialiiii) In Afghanist.m. laitlfhas also nude iiicoii.sisteni statements
about whether he sTiiyed vsitli a dr<ctor in Kalnil or al a religious institute in Kabul, whether Ihrahint was with (..itif at the time he

decided :o flee Afghanistan or had ulieady IcD .several weeks curlier, whether latiif was aircstcd at the Ihikislani hoivier fleeing
Afghanistun or arrested at a hivspiial in I'ukisian. whether l.atlf paid for his medieal treatment or not and wheiher Ihrahun's
charitable iirguni/ation vvas called Janiiai nn-Niir. (inmelai a! 1 lekm.i or Jani-ciah Islam.

3 Purlial also requires that hearsiiv evidenee "be pre.<uiiled in a fnnti. or with sunieicnl additiimul inlunnation. Dial peraiits the ...
court to assess its reliability." 532 f .3d ii( 8d9. As Hiirlmiimi notes. Iiowcver. the quoted passage has more to do with the fonn than
with Die subslanee nl'hearsay evidence: "the problem with llic inielligeiiee rcpRrts ol iwuc in PatJaii was that thc> fa-ltJ to pivivide

'any of the undcriying reporting upon which the dncuincnis' hotumt-linc acsertions arc founded.' thus inhibiting our ability lo

evaluate the reliahility of iIto.sc assertions." 6D9 l-.Jd at 42* tqiioling I'urhui. 532 K.3d at 346—17). Unlike the unscurced Itcnisay
a«cgaiioti.s in I'orhai. the Report summarises an inieniew w jih l.atlf himself and Ihos Identifies "the underlying leponing upon
which the gwenitnvni's assertions are foutulcd." which is soflleicnt to enuhle :be Jisiriel court to assess its icliahjliiy and meet

/'ar/mr's requircnietil. Ilnrhtnimi. 60'J (-.id at 42K (inicmat quntatiims omitted). There is a slightly lilffcreot nuance tn the telbbiliiy
inquiry here: unlike either farhat or Hurhnmi. one of the key disputes is the .source of the hennay sialemcnt— in other words,
whether it can he reliably aliTibuled in l.atif and not only the necuracy of (lie underlying nurRillsc. I3ul here. tiNi. liic KepoR itselt

cunsiilutes evidence that l.iilif l.s Die source of the iiiciilp:iloiy sialemcnis. cnrroboraled by esirinsic evidence of laillf.f

hiugcaphicul details, rncdicnl history und admissions to his (luuni;inanio iiuerrngaiors. .Veo sir/iru n. 2. Thus, the Report Ls
"presented in a form" ansi "w-jili siinieiem addllioival infiinnatitm" lo support the reliabilitv of its iitirlhulion lo l.aiif I'arhai S32
K.3dal849.

4 While the faeis surrounding hearsay evidence may not alvvay s justify applying the presumption of regularity, it is properly applied
hem because the interview with l.atif is recorded in a type of ImcHigenco report  redaciiitns 

5 Itedactlivtsl

(> Indeed, even Lalifs eominucd/fK/nA- to testify would likely wtirk aguin.st him. Majority Op. ut 1192- 9.1; jre UiiMI v I nitm
Next

E*. 120. ?g. 40

SOUTHCOM/000194

 Utif V. Obama. 677 F.3d tt75 (2011)

400 U.S.App 0 c! 231
52fi P.S J14. J2H. IIV S.C ( 1307. 143 l..i',d.3il 424 i I'W^) I" "i rihc I'lOh AnwiKJmcm Uoi.t( niH ibrhiJ adverse inlcrciwvs
npiinM iwntcx to chit acuuii.« v«hcn tlic> turuitu to icMtO in rcsjionsc to pn>hjii\H; ciidcncc oiUted against ihcRi.' " (quoting
Hattcrv I'alniifniiniK A2i\'S .10«. 318. 9hS.ll. 1551. 471..Ld.2d «I(in976ilJ.

EntJ o< Document

.201? Thomson Rauieis No asim to ongmai U S Government Wetiis

Ex. 120. Pg. 41

SOUTHCOM/000195

 Docket for 11-1027

^ SUPREME COURT
OF

THE

X'

V

I

T

E

n

S TAT E S

N o . 11 - 1 0 2 7

Tftle: Adnan Fartian Abdul Latif, Petitioner
V.

Barack H. Obama, President of the United States, et al.

Docketed; February 21, 2012
Lower Ct: United States Court of Appeals for the District of Columbia Circuit
CaseNos.: (10-5319)
Decision Date: October 14,2011

—Date*— — Proceedings and Orders
Jan 12 2012 Motion (11M67) of petitioner for leave to file a petition for a writ of certiorari
u n d e r s e a l fi l e d .

Jan 12 2012 Petition for a writ of certiorari filed. (Response due March 22, 2012)
Jan 12 2012 Appendix of Adnan Farhan Abdul Latif filed.
Jan 18 2012 MOTION (11M87) DISTRIBUTED for Conference of February 17,2012.

Feb 21 2012 Motion (11M67) of petitioner for leave to file a petition for a writ of certiorari
under seal Granted.

Mar 13 2012 Order extending time to file response to petition to and including April 23,
2012.

Mar 22 2012 Brief amici curiae of Former Intelligence Professionals, et al. filed.
Mar 22 2012 Brief amIci curiae of Retired Federal Judges filed.
Apr 18 2012 Letter of April 18, 2012, from counsel for petitioners in Nos. 11-413,11-683,
and 11-1027 received. (Distributed)
Apr 20 2012 Motion for leave to file brief in opposition under seal filed by respondents
Barack H. Obama, President of the United States, et al.
Apr 20 2012 Brief of respondents Barack H. Obama, President of the United States, et
al. in opposition filed. (Redacted version)
Apr 30 2012 Motion for leave to file reply brief under seal filed by petitioner Adnan
Farhan Abdul Latif.

Apr 30 2012 Reply of petitioner Adnan Farhan Abdul Latif filed. (Redacted Version)
(Distributed)
May 1 2012 DISTRIBUTED for Conference of May 17, 2012.

May 21 2012 DISTRIBUTED for Conference of May 24, 2012.
May 29 2012 DISTRIBUTED for Conference of May 31, 2012.
Jun 4 2012 DISTRIBUTED for Conference of June 7, 2012.
Ex. 121. Pg. 1

SOUTHCOM/000196

 Docket for 11-1027

Jun 11 2012 Motion for leave to file brief in opposition under seal GRANTED.

Jun 11 2012 Motion for leave to file reply brief under seal GRANTED.
Jun 11 2012 Petition DENIED.

--Name—

—

-Address

~-Phone—

Attorneys for Petitioner:
S. William Livingston

Covington & Burling LLP

(202)
662-6000

1201 Pennsylvania Avenue. N.W.

Counsel of Record

Washington. DC 20004

wlivlngston@cov.com
Parly name: Adnan Farhan Abdul Latif
Attorneys for Respondents:
Donald

B.

Verrilli

Jr.

(202)

Solicitor
General
i

514-2217

C o u nn sseel l o f oRfe c o r R
d eUc no irtde d SIt a t e s D e p a r t m e n t o f J u s t i c e

950 Pennsylvania Avenue. N.W.
Viteshington, DC 20530-0001

SupremeCtBriefs@USDOJ.gov
Party name: BaracK H. Obama, President of the United States, et al.
Other:

(312)

Mayer Brown LLP

Gary A. Isaac

782-0600

1 7 S o u t h Wa c K e r D r i v e

Chicago, IL 60606
Party name: Retired Federal Judges

Sidney

& Garrison (212)
S . R oPaul,
s dWeiss,
e i tRifkind,
c h eWharton
r
373-W
1285 Avenue of the Americas

New York, NY 10019-6064

srosdeitcher@paulweiss.com
Party name: Former Intelligence Professionals, et al.

6*. 121. Pj. 2

SOUTHCOM/000197

 

LexisNexiS'
0

Waming
As of: October 9. 2012 9:55 AM EDT

Ahdah v. Obama
United States District Court for the District of Columbia
July 20H). Decided: August 16. 2010. Filed
Civil Action No. 044254 (lillKl
Reporter: 20H) US. Dist. LEXIS 83596: 20m WL 327076 
MAHMOAD ABDAII. et al.. I?etitienera. v. BARACK ll. OBAMA. et al. Respondents.

Notice:

 
 

Subsequent History: Petition denied by .-
39? {$5439. LEXIS got; 
iterated by. Remanried by Lori: t: ()iarmm, 666 1-1-1
Cir? 30!?

titrated by. Reminded by Ixyif quqrg, :52? ?1,191 ?125. [All (Dr:
(is, .3012;

Prior History: .-

 

 

1 Core 'l'erms 

detainee. interrogation. training. travel. reporting. summarizing. detention. asserts. light. military.
argues. respondents. records. fought. preponderance. reliable. arrange. studies. facilitator.
memorandum. custody. seized. organizations. corroborated. authorities. declaration. encouraged.
documents. recruited. hearsay

Counsel: For MAHMOAD ABDAH. Detainee. Camp Delta. MAKHTAR YAHIA NAN
AL-WRAFIE. Detainee. Camp Delta. YASEIN KHASEM MOHAMMAD ESMAIL. Detainee.
Camp Delta. OTHMAN ABDULRAHEEM MOHAMMAD. Detainee- Camp Delta. SALMAN YA-
HALDI HSAN MOHAMMED SAUD. Detainee. Camp Delta. Petitioners: Alan Arnold Pentber-
ton. Schuyler William Livingston. Ir. LEAD ATTORNEYS. COVINGTON BURLING. Wash.
ington. DC: David H. Revues. LEAD ATTORNEY. Appeal for Justice. Silver Spring. MD: Mare
D. Falkol'l'. LEAD ATTORNEY. NORTHERN UNIVERSITY. College of Law. DeKalb.
IL: Anthony J. Phillips. Brian E. Foster. Philip A. Scarborough. COVINGTON BURLING
LLP. Washington. DC.

For MAHMOAD ABDAH AHMED. its nettl friend of Mahmoud Abdah. also known as. MAH-
MOOD ABDO AHMED BIN AHMED. MAJID MAHMOUD AHMED. Detainee. Camp Delta. also
known as. MAJED MOIIMOOD. also known as. MAJID M. ABDU AHMED. MAHMOUD
AHMED. as next friend of Majid Ahdalt Ahmed. ABDULMALIK ABDULWAHHAB Al.-
Detainee. Camp Delta. AHMED ABDULWAHHAB. as next friend of Abdulmnlik Ah-
dulwahhab Al-Rahabi. FOADE YAHIA I AL-WRAFIE. as next friend of Malthtar Yaltia
Naji Al-Wra?e. AREF Alli) ll. RI Detainee. Delta. AREF ABD AL RAHIM. as next

Ex.122.Pg.1



 

I'agi' 2 (tr 14
2010 VS. Dim, I.I-XrS ($,<596.

friend of Arvr Abil li Rhecm. r2] JAMEL KHASKM MOHAMMAD, as next friend of Yasein
Khascni Mohammad Esmuil. NABIL MOHAMED MAR'I. as ncxi friend of Jamul Mar'i, ARAF
ABDULRAHEEM MOHAMMAD, as next friend Olhnmn Abdulrahccm MohammaJ. MO-

HAMED MOHAMKD HASSAN ODAINl. Detiiince. Camp Doha. BASHIR MOHAMED HASSAN ODAINI. as next friend of .Mchamcd Molumed Hassan Odaini. ABD AL.SALAM MO

HAMMED SAF-ED. as next friend of Sadeq Mohammed Said. FAROUK ALl AHMED SAIH.
Dciaincc. Camp Delta. SHEAB AL MOHAMBDl. as next friend of Furouk Ali Ahmed Saif. VAHIVA HSANE .MOHAMMED SAUD AL-RBUAYE. as next friend of .Salman Yahaldi Hsao Mo

hammed Saud. Petitioners: Alan Arnold Pemberion. Schuvicr William Livingston. Jr.. LEAD AT
TORNEYS. COVINGTON & BURLING. Wa.shiiigton. DC; David H. Rcmcs. LEAD

AITORNEY. Appeal for Justice. StWcr Spring. MD; Mare D. FalkolT. LEAD ATfORNEY.
NORTHERN ILLINOIS UNIVERSITY. College of Law. DcKalb, II.: Amlnmy J. PhiIIip.s. Philip
A. Scarborough. COVINGTON & BURLING LLP. Washington. DC.
For ADNAN FARHAN ABDI ?L LATIF. Detainee Camp Delta. ALL PETITIONERS. Petition
ers: Alan Aniold Pembcrton, Schuyler William Livingston. Jr.. LEAD ATTORNEYS. COVING
TON & BURLING. Washingmn. DC; David H. Rcmcs. LE.AD ATTORNEY. Appeal for Jus
tice. 1»31 Silver Spritic. MD; Marc D. Falkoff. LEAD ATfORNHY. NORTHERN ILLINOIS
UNIVERSITY. College of Law. DcKalb. IL; Anthony J. Phillip.s. Brian 0. Foster. James McCall
Smith. Philip A. Scat^mroogh. COVINGTON & BURLING LLP. Washington. DC.
For MOHAMED FARHaN ABDUL LATIF. as next friend of Adnan Farhtin Abdul l.aiif. ADIL

EL HAJ OBAID. Detainee. Camp Delta. NAZEM SAEED EL HAJ OBAID, as next friend of Adil
Saccd El Huj Obaid. Petitioners: Alan Arnold Pembcrton. Schuyler William Livingston. Jr..
LEAD ATTOR.NEY.S. COVINGTON & BURLING. Washington. DC: David H. Rcmcs. LEAD AT
TORNEY. Appeal for Justice. Silver .Spring. MD: Marc D. FaJkolT. LEAD A'lTUKNEY. .NORTH

ERN ILLINOIS UNIVERSITY. Colleuc of L;iw. DcKalb. IL; Anthonv J. Phillips. James Mc
Call .Smi;h. Philip A. Scarborough. COVINGTON & BURLING LLR Wa.shingmn. DC.
For SADEQ MOHA.V1MED SAID. Detainee. Camp Delta. Petitioner David H. Rcmcs. LEAD Al-

TORNEY. Appeal for Justice, Silver Spring. MD: .Mure D. Falkoff. LEAD ATTORNEY. NORTH
ERN ILLINOIS UNIVERSITY. College of Law. DoKalb. IL; Schuyler William Livingston.
Jr.. LEAD .ATTORNEY. COVINGTON & BURLING. Washington. DC; Anthonv J. Phillips. Philip
A. Scarborough. COVINGTON & BURLl.NG LLP. Washington. DC.
For GEORGE f*4J W. BU.SH. JR.. Presidcni of the I tniied .Sian-s. Res ><uuient: Ann F.. N'avh.

Linda Beth Alhcrly. LEAD ATTORNEYS. Je:in Lin. Timothy Andrew Johnson. U.S. DEPART
MENT OF JUSTICE. Civil Divisioiu Federal Progrants Branch, Washington. DC; Hector G. Bladucll. LEAD ATTORNEY. U.S. DEPARMENT OF JUSTICE. Wa.shingHm. DC: John P. Lohrcr.
Rodney Patlon. Stephen P. Finn. LEAD ATTORNEYS. Alexander Kenneth Haas. Nicole Ncwcomh Muricy. Patrick D. Davi.s. .Scoii Douglas Uvin. U.S. DEPARTMENT OF JU.STICE. Wash

ington. DC; Jonathan S. Needle. LEAD ATTORNEY. Julia A. Bcnnan. Paul A. Dean. U.S. DF.PARTMENT OF JUSTICE. Federal Proarams Branch. Wasftington. DC; Mark A. Veiicr. LEAD

ATTORNEY. U.S. DEPARTMENT OF JUSTICE. ATP. Washington. DC; Phillip Michael Truman. LEAD ATTORNEY. U.S. DEPARTME.NT OF JUSTICE. Washington. DC: Sarah Mal.i-

ney. LEAD ATTORNEY. Stephen McCoy Elliott. U.S. DEPARMENT OF JUSTICE. Washingt o n . D C : S c o t t M i c h a e l M a r c o n d a . L E A D AT TO R N E Y. U . . S . D E PA RT M E N T O F J U S T I C E ,

Washington. DC; Andrew I. Warden, U.S. DEPARTMENT OF JUSTICE. CIVIL DIVISION. Fed
eral Programs Branch. Washinuttm. DC; David Hugh White. U..S. DEPARTMENT OF JUS
TICE. Washington. DC: Washington. DC: Joseph Charles Folio. III. U.S. DEPARTMF.NT OF

Ex 133. Pg.2

SOUTHCOM/000199

 Page 1 of U
2 0 11 )

U.S.

niM.

u-xis

-s

[*51 JUSTICE. Wa-ihinglon. DC; Kalhiyn Ccliii Mason. U.S. DEPARTMENT OF JUSTICE. Wash
ington. DC; Krisiina Ann Wolfe. US DEPARTMENT OF JUSTICE. Washington. DC; Nornian

Christopher Mardcc. U.S. DEPARTMENT OF JUSTICE. Washington. DC: Robert J. Prince. U.S.
Department of Justice. Civil Division. Federal Programs Branch. Wushinaton. DC: Scan W.
O'Donncll. Jr.. U.S. DEPARTMENT OF JUSTICE. Washitjgton. DC; Timothy Burke Walthall.
U.S. Department of Justice. Civil Division. Washinglon. DC: Tri.sh .Maskcw. U.S. DEPARTME.NT OF JUSTICE. Civil Division/Onice of Immigration Litigation. Wa.shington. DC: William O.
Kaneliis. U.S. DEPARTMENT OF JUSTICE. Washinglon. DC: Wynne Patrick Kelly. U.S. Department of Justice. Civil Division. Federal Programs Branch. Wa.shington. DC; Terrv Marcus
Henry. U.S. DEPARTMENT OF JUSTICE. CIVIL DIVISION. Wiushington. DC.
For DONALD RUMSFELD. Secretary. United Slates Ocpitrtmcm of Defense. Respondent: Hec
tor G. Bladuell. LEAD ATTORNEY. U.S. DEPARMENT OF JUSTICE. Washincton. DC: Jona
than S. Needle. LEAD ATTORNEY. Julia A. Bcnnan. Paul A. Dean. U.S. DEPART.MENT OF JUS

TICE. Federal Prngranis Rnineh. Washington. DC: Lindn Beth Albcrty. LEAD ATTORNEY,
Jean Lin. Timothy Andrew Johnson. U .S. (*6  DEPARrfMENT OF JUSTICE. Civil Divisiim. Fed

eral Programs Branch. Witshington. DC; Phillip Michael Truman. LEAD ATTORNEY. U.S. DE
PARTMENT OF JU.STICE. Washington. DC; Rodney Pation. LEAD ATTORNEY. Alexander

Kenneth Haas. Nicole Ncwcomh Murlcy. Patrick D. Davis. .Scott Douglas Levin. U.S. DEPART
MENT OF JUSTICE. Washington. DC: Sarah Maloncv. LEAD ATTORNEY. Stephen McCov El
liott. U.S. DEPARMENT OF JUSTICE. Wa.shington. DC: Scott Michael Marconda. LEAD AT
TORNEY. U.S. DEPARTMENT OF JUSTICE. Washinglon. DC; Andrew 1. Warden. U.S.
DEPARTMENT OF JUSTICE. CIVIL DIVISION. Federal Programs Branch. Washington. DC: Da
vid Hugh White. U.S. DEPARTMENT OF JUSTICE. Washincton. DC; Joseph Charles Folio.
111. U.S. DEPART.MENT OF JUSTICE. WashinpU)n. DC; Kathryn Cclia Mason. U.S. DEPART
MENT OF JUSTICE. Washington. DC; Kristiiia Ann Wolfe. US DEPARTMENT OF JUSTICE.
Washington. DC; Mark A. Veiter. U.S. DEPARTMENT OF JUSTICE. ATF. Washinglon. DC: Norman Christopher Hardee. U.S. DEPARTMENT OF JUSTICE. Wshington. DC: Robert J. Prince.
U.S. Department of Justice. Civil Division. I-edern! Programs Branch. Wa.shinetoii. DC: Scan

W, O'Donncll. Jr.. U.S. DEPARTMENT OF JUSTICE. Washinglon. DC; Trish^Maskcw. U.S. DE
PARTMENT 1*7) OF JUSTICE. Civil Divi.sion/Officc of Immigraiiun Litigation. Washington.
DC; Wynne Patrick Kelly. U.S. Department of Justice. Civil Division. Federal Programs Branch.
Washinglon. DC: Terry .Marcus Henry. U.S. DEPARTMENT OF JUSTICE. ClVll. DIVISION.
Washington. DC.

For JAY HOOD. Artiiy Brig. Gen. Commander. Joini Task Forcc-GTMO. Respondent: Hector G.
Bladuell, LEAD ATTORNEY. U.S. DEPARMENT OF JUSTICE. Wa.shington. DC; John P.
Lohrcr. Rodney Puttoo. Stephen P. Finn. LEAD ATTORNEYS. Alexander Kenneth Haas. Nicole

Ncwconib Murlcy. Patrick D. Davis. Scott Douglas Levin. U.S. DEPARTMENT OF JUSTICF..
Washinglon. DC; Jonathan S. Needle. LEAD ATfORNEY. Julia A. Berman. Paul A. Dean. U.S. DE

PARTMENT OF JUSTICE, Federal Programs Branch. Washington. DC: Linda Beth Albcrty.

LEAD ATTORNEY. Jean Lin. Timothy Andrew Johnson. U.S. DEPARTMENT OF JUSTICE.
Civil Division. Fcdcnil Programs Branch. Washington, DC; Philip Michael Truman. LEAD AT
TORNEY. U.S. DEPARTMENT OF JUSTICE. Washington. DC; Stirnh Maloncv. LEAD ATTOR-

NEY. Stephen McCoy Elliott. U..S. DEI'ARMEN T OF JU.STICE. Wiwhington. DC; Scott .Mi
chael Marconda. LEAD ATTORNEY. U.S. DEPARTMENT OF JU.STICE. Washington, DC;
Andrew I. Warden. U.S. DEPART.MENT OF JUSTICE, jost CIVIL DIVISION. Federal Pro

grams Branch. Washington. DC: David Hugh White. U.S. DEPARTMENT OF JUSTICE. Wash

inglon. DC: Joseph Charles Folio. 111. U.S. DEPARTMENT OF JUSTICE. Washinglon. DC: Kath
ryn Cclia Mason. U.S. DEPARTMENT OF JU.STICE, Wa.shinglon. DC: Kristina Ann Wolfe. US

Ex. 122. Pg. 3

SOUTHCOM/000200

 Pagi:4ul U
:«l() U.S. Disi. I.JiXIS

DEPARTMENT OF JUSTICE, Washiiiglon. DC: Mark A. VcMcr. U.S. DEPARTMENT OF JUS-

TICl-:. ATF. Wa.shington. DC: Norman ChriMnphcr Hardee. U..S. DEPARTMENT OF JUS
TICE. W.shington. DC; Robcn J. Prince. l;.S. Deparimem of Justice. Civil Division. Federal Pro
grams Branch. Wasltincton. DC; Sean W. O'Doimeil. Jr.. U.S. DEPARTMENT OF JUSTICE.

Wa.shingion. DC; Trish"Maskcw. U.S. DEPARTMENT OF JUSTICE. Civil Division/Office of Iinmigration Liligalion. Washington. DC; Wynne Patrick Kelly. U.S. Department of Justice. Civil Di
vision. Federal Programs Branch. Washington. DC; Terry Marcu.s Henry, U.S. DEPARTMENT
OF JUSTICE. CIViU DIVISION. Washington. DC.

For NELSON J. CANNON. Anity Col.. Commander. Camp Delta, all respondents are sued in
their olTicial and iiersonal capacllie.s. Respondent: Hector G. Btaducll. LEAD ATTORNEY. U.S.
DEPARMENT OF JUSTICE. Washington. DC; Jonathan S. Needle. LEAD ATfORNEV. Julia A.
Bcrman. Paul A. Dean. U.S. I*9  DEPARTMENT OF JU.STiCE. Federal Programs Branch. Wa.shtngion, DC; Linda Beth Alberty. LEAD ATTOR-NEV. Jean Lin. Timothy Andrew Johnson. U..S. DE
PARTMENT OF JUSTICE. Civil Division. Fedora! Program.s Branch, Washington. DC: Phillip

Michael Truman. LEAD ATIORNEY. U.S. DEPARTMENT OF JUSTICE. Washington. DC: Rod

ney Patton. Stephen P. Finn. LEAD AITORNEYS. Alexander Kenneth Haas, Nicole Newcnmb
Murlcy. Patrick D. Davis. Scott Douglas Levin. U.S. DEPARTMENT OF JUSTICE. Washington.
DC; Sarah Maloncy. LEAD AITORNEY. Stephen McCoy E11id:i. U.S. DEPARMENT OF.'USTICE. Washington. DC; Scott Michael Marconda. LE.AD ATTORNEY. U.S. DEPARTMENT OF
JU.STICE. Washington. DC: Andrew 1. Wartlcn. U.S. DEPARTMENT OF JUSTICE. CIVIL DI
VISION. Federal Prograin.s Branch. Washington. DC; David Hugh While. U.S. DEPARTMENT OF

JUSTICE. Washington. DC: Joseph Charles Folio, HI. U.S. DEPARTMENT OF JU.STICE. Wash
ington. DC: Kathryn Celia Mason. U.S. DEPARTMENT OF JUS TICE. Washington. DC; Kris-

tina Ann Wolfe. US DEPARTMENT OF JUSTK:E. Washington. DC; Mark A. Vcttcr. U.S. DE-

PART.MENT OF JUSTICE. AIT. Washington. DC: Norman Chri.stophcr Hardee. U.S.
DEPARTMENT OF JUSTICE. W.shington. DC: Robert J. Prince. U.S. Department of Justice.
1*101 Civil Division. Federal Programs Branch. Washington. DC; Scan W. O'DonncH. Jr.. U.S. DE
PARTMENT OF JUSTICE. Washington. DC; Trish Maskew. U.S. DEPARTMENT OF JUS
TICE. Civil Divtsion/OlTice of imtnigratian Litigation. Washington. DC; Wynne Patrick Kelly.

U.S. Department of Justice. Civil Divi.sion, Federal Programs Branch, Wa.shington. DC'.Tcrrv Mar
cu.s Henry. U.S. DEPARTMENT OF JUSTICE. CIVIL DIVISION. Washington. DC.
For A.S.SOCIATF.D PRF.S.S. NEW YORK T1MF.S COMPANY. tl.SA TODAY. Movants: Jeaneltc

Mclcndcz Bead. LEAD ATTORNEY. LF.VINF SULLIVAN KOCH & SCHULZ. LLP. Washingion. DC.

For CHARLES B. CITTINGS. JR.. Amicus: Clu»rIo.s 8. Gittinys. Jr.. LEAD ATfORNEY. Fort
Bragg. CA.

Judges: Henry H. Kennedy. Jr.. United States District Judge.
Opinion by: Henry 11. Kennedy

MEMORANDUM OPINION

Ex. 122.Pg.4

SOUTHCOM/000201

 Page 5 ut U
21)10 U.S. Dim. l.r.XlS 8.)S9<). * 10

Adiutn Farhan Abd Al Latii'dSN 156). a Yemeni citi/cn, was sei/cd hy Pakistani authorities in
late 2()0i and has been held hy ihc Uniicd Stales al the naval base detention facility in Guantannroo Bay. Cuba sine* January 2(K)2. Laiif ha.s filed a petition for a writ of habea.s corpus conlending that he i.s unlawfully detained. Rc.s }undeiits in this ease. President Barack M. ()bama and
other high-level olficiaLs in the Uniicd States Government, argue that l"n  Latif is lawfully de
tained and therefore should remain ir. U.S. cu.stody. 1'hc parties filed crns.s-niotion.s for judgment on
the record and appeared before the Court for a hearing on the merits of I-atirs petition on June
7 and 8. 2010. Upon consideration of the motions am! the evidence presented at the merits hear
ing. the Court conclude.^ that respondents have failed to dcmon.siratc that the detention of Latif
is lawful. Therefore. Latirs petition shall be granted.
I . L F X J A L S TA N D A R D S

A. Scope of (he Government's Detention Authority
The Authorization for U.se of Military Force ("AUMF"), Pub. L So. 107-40. 115 Sua. 224
12001 i. authorizes the President to "use all necessary and appropriate force againM those nations, iirgani/ations. or persons he determines planned, authorized, comniilled. or aided the terrorist at
tacks that occurred on September 11. 2(M)I. or harbored such organizations or persons, in order to
prevent any future acts of international terrorism against the United .Stales hy .such nations, orga

nizations. or persons." Piih. I.. 107-40. i 2(ni. J IS Stat, at 224. The U.S. Supreme Court has

held that the District Court for the District of Columbia ha.H jurisdiclinn over petitions for writs
(•12) of habeas corpus brought bv detainees iicld at Guanianamn Bay pursuant to the AUMF. Scu
BotuwOk-nv V. Hush, 55.1 U.S. 725. 128 .S. Ct. 2220. 2274. 171 L. Fd. 2d 41 (2008): ^SL
ml V. Bush. 542 U.S. 466. 483.84. 124 S. Ct. 2686. 1.19 L. L'd. 2d .548 (2(K)4). The Supreme Court
has provided ".scant guidance." however, as to whom ic.spondcnts mav lawfully detain under the

statute. AkBihani v: Obtmm. 5W F..td 866. 870. m U.S. Ann. D C. 26'(i).r. Cir 2Q10i (noting that
the Supreme Court ha.s "eon.seiously lc(li) the contours of the siih.sianiivc and procedural taw of de
tention open for lower courts to shape in u common law fashion" (citing Utinuli v. Rumsfetd.
542 i:.S. 507. 522. 124 S. Q. 263j. 159 L. Ed. 2d 57S n.i 12(11)4) (plurality opinion of O'Connor.

In the absence of controlling law governing (he que.siion of by what .standard to evulualc the law
fulness of the detention of the individuals held id Guantanamo Bay. judges of this District thor
oughly and thoughtfully addressed this is.sue. and this Court adopted the rca.soning and ccnclu-

sion.s of Judge Bates in IlimOik v. Ohtimu. 616 F. Supp. 2d 6.< (D.D.C. 2009V and Judge

Walton in Ulu-rfhi v. Ohanui. 6t)U F. Supp. 2d 4.1 (D.D.C. 2(109>. in its previous opinions ruling
on these habeas petiliuns. Although the D.C. Circuit "has yet [•13J to delineate the precise con-

lours" of the proper legal standard, it has eonsi.stenlly accepted the proposition that any indi
vidual who was "part of Al QaeUa or the Tiilihan may be detained pursuant to Ihe AUMF. Barhomii V. Obama. (m l'.3d 416. 2010 Wl. 2.S5.TS4tl. at (D.C. Cir. 2(1 also Odah i-.
States. 611 F.3d S. 2010 U..S. Ann. LEXIS 15821 2(110 WL 2679752 «8 (D.C. Cir. June M).

2(110) ('The only remaining question is whether all the evidence before the district court was .suf
ficient to support its finding that al Odah wa.s "pan of the Taliban ami al Qaeda forces."); Ben. s a v a h v . O h a i n n . 6 1 ( 1 F. . 1 d 7 I X . 2 0 1 0 U . S . A n n . L E X I S 2 0 1 0 W I . 2 A 4 0 6 2 < ; . a t * 5 ( D C T i r

Jtme 28.2010) (noting that "wo have made clear... that the AUMF authorizes the Executive to de
tain. ill the leasi. any Individual who is fuactioiialiy pr( ofai Qacda" (citaiiuris omitted));

Awad V. Ohamti. 6(]X EM 1. 2010 WL 2202401). at * 10 (D.C. Cir. 2010) (holding thai demonstrat
ing that "a detainee was part of the ' command structure' of al Qacda" is sufficient hut not nec

essary "to prove ihitt a detainee is "part of a! Qacda"). Accordingly, in this ca,sc. the Court will as.scs.s whether rcspniHiciiis have shown that Latif is part of Al Qacda or the (*14) Taliban.

Ex. 122. Pa 5

SOUTHCOM/000202

 Page of 14
Iii-It! US. Dist. LEXIS 8.15%. ?14

B. Burden of Proof

As stated in the Amended Case Management Order that governs this case. "ltlhe government
hears the burden of proving by a preponderance of the evidence that the petitioner?s detention is law-
l'ttl." In re Guantanamo Bay Ling" Misc. No. 08-442. CMO ILA (Nov. 6. 3108}. Accord-
ingly. Latit' need not prove that he is unlawfully detained: rather. respondents must produce "evi-
dence which as a whole shows that the fact sought to he proved." that Latif was part of Al
Qacda or the Taliban. "is more probable than not.? i d.'tt .t 1' Marin. . .
gm. QC. l2? (quoting ht'e 'r on! IP 4) 25'
 App. 2'2 1.2 m, Cir. 1993?. it? respondents do not meet this burden. the Court
grant Unit?s petition anti order his release.

     

C. Evidentlary Issues
The Court notes at the outset two issues regarding the evidence in this case.

First. as in an order entered in this case on August 26. 2009 the Court has per?
mitted the admission of hearsay evidence but considers at this merits stage the accuracy. reliabil-
ity. and credibility of all or the evidence presented to support the parties' arguments. This ap-
proach is consistent with a directive from the D.C. Circuit. See :11 aiming, 320 in 312
("iTlhc question a hahcas court must ask when presented with hearsay is not whether it is admis-
sihle?it is always admissible?hut what probative weight to ascribe to whatever indicia of reli-
ability it exhibits?): also WNW: App. LEES 29 It} \yL 2(g7975?g,
 {holding that "the law is against? a detainee who argued that some types of hearsay are

not admissible in these Guantanamo Bay Wt. 25914151, *9 tre-
at?t?trming the rule articulated in and noting that a district court errs not by rely-
ing on hearsay. but by relying on "unreliable hearsay"). The Court?s assessment of the weight
property accorded to particular pieces of evidence appears throughout this memorandum opinion.

Second. the nature of the evidence before the Court is atypical of evidence usually presented in
federal actions. Respondents have offered a variety of types of documents produced and used by
government intelligence agencies that are not the direct statements of the individuals whose per-
sonal knowledge they reflect. The evidence in this case includes Form 40s Summary In-
terrogation Reports intelligence Information Reports Memoranda l'or Re-
cords Field Documents and ITEXT REDACTED BY THE COURTI
FMclOs are records of investigation activities. here witness intervie ws. conducted by the Criminal ln-
t'estigulion Task Force. a federal law enforcement agency. REDACTED BY THE
[le are Department of Defense documents for recording human intelligence. which
may contain information derived from an HR. l?l'EX'l' REDACTED BY THE FD.
302s are forms completed by F131 agents interviews. ITEXT REDACTED BY
THE Neither party calied any live witnesses.

ll. ANALYSIS

 

The Circuit has held that "lal ut' the evidence standard sttlislie~ constitutional requirements in considering
. - olm zit-Jinan,
in FM :p .415 [rejecting Guantnnanm Ba} detamee?s argument that application of the pawndentnce evidence in
his hnheas case was unetmstitutitntall. II has yet to decldc. huwevet. whether that ~tandard is required. Set- git-4nth
i lix 8 I4 61 10"! TSMSI ?ll ?3 we doubt

 

. . . In 11 ..
. that the Suspension Clause requires the use tor the standard. we it ill not decide that qua-lion to this one").

         

Iluman intelligence. or ?intimidation derived from .1 Joint Esnil?n Jo at l.

Ex.122.Pg.6

SOUTHCOMI000203

 



Page 7 III I .t
2CI0 U.S. Disi. LEXIS S.Wh. - 7

The piirties aerci; uhau( certain tacts of Luiir.<( hackttround and travel hut (li.spute others. Ltitif.

or I.SN 156. ^ was horn in 1976 and grew up in u vilage in Yemen called Udayn. It is undis
puted that in 1994. he sustained head injuries as (he rc.sult of a car accident and the Yeincnt guvcmincnt paid for him to receive trcaliiieni at the iNlatnic Ho.spiial in Amman. Jordan. According
to Latif. his ircaimem was incomplete and. hccause he could not alford the totlo\v-up care he needed
to alleviate signillcant lingering discumfurl. he sought charittibic a.ssistuncc. The parties agree
that in 2(K)(). Latif inct a man named Ibrahim. Latif asscns that Ibrahim promised to arrange free

medical care for him in Pakistan; rcspondenl.s argue instead that Ibrahim was a recniilcr for A1
Qaeda who encouraged Latif to go to Afghanistan to receive military training and/or fight jihud.
The parties  '*'18  do not di.spute that in August 2001. Latif left Yemen, went to Pakistan, and
soon traveled lo the area around Kabul. Afghanistan. Latif iisscrts that while in Afghanistan, he
stayed ai att l.slamic siudie.s center waiting for Ibrahim to arrange his medical treatment; rc.s iontlcnts allege that Latif went to a military training camp and fought with the Taliban in an area
north of the city. Respondents and Latif agree ihul Paki.stani police seized Latif near the bonier of

Afghanistan and Pakistan on an unknown dale in late 2001. He was transferred lo United Stales
custixiy in late December of that year. In mid-January 2002. he was sent lo Guantanamo Bay. where
he has been held since.

This meinorunduni opinion describes and analyzes the evidence the panics have submitted lo tlcicrmiiie whether respondents have shown that I.aiif is lawfully detained pursuant to the AUMF,
A. [TEXT REDACTED BY THE COUUTI
[TEXT REDACTED BY THE COL*RT 
[TEXT REDACTED BY THE COURT}
B. Re.spnndcnts' Case
[TEXT REDACTEI3 HY THE COURT] respondents argue that Latif was a'cruited to travel lo Af

ghanistan by a member of AI Qaeda and received military training from, and then fought with,
t h e Ta l i b a n .

1. Respondents argue that Ibrahim was  *19J Abu Khulud, an AI Qaeda fadlltutor.

Respondents first argue that the person who persuaded Latif to travel to Afghani.stan. {TEXT RE
DACTED BY THE COURT] is Abu Khalud. an AI Qaeda facilitator, it i.s not disputed that Abu
Khalud also went by the name Ibrahim Bu'ulawi.
Respondents point to staiemcnis reportedly made by other Guantanamo Bay detainees who inivelcd to Afghanistan at the suggestion of Abu Khalud to show, as to e;tch stalctnent ITEXT RE
DACTED BY THE COURrrj about Ibnihim. the similaritie.s between their stories ]TEXT RE
DACTED BY THE COURT]
First, respondents cite interrogation summaries thai iiidiealc that other men met Abu Khalud in

Taiz, Yemen, which is in the .same area of Yemen its Udavn. the village w here Latif lived.  TEXT
REDACTED BY THE COURT] JE .S (IIR derived from an FD-.302 dated ]TEXT REDACTED

BY THE COURT] .summarizing an iJitcrrogalton of ISN 193) at 4 (reporting that ISN 19.3 "stated
Abu i(Khloud)), also known as ]) Ibruhcim i(Ba'alawi)) is u prayer leader" at a mosque in
ISN MjiuI. tnr Inlcniincnl Sfrisil Ntiinbcr. It^ich ik-iaitit'i.' ;il (iuuntuiiailiii Uav h:is huk'n Uv^isnvil siicb !i number.

Fx. 132 Pg 7

SOUTHCOM/000204

 Page S of 14
2010 U.S. Disi. LliXlS K»96. 'IV

Taiz): JB 11 (HR reporting infoniiation derived frntn an interrogation of ISN 1457 on [TEXT RE
DACTED BY THE COURT)) at 3 (indicating thai ISN 1457 said "Ihnihim ((Balaaiawi)). aka
Abu Khulud, Wits a faciliiatur I'''20) in Tai/. jYenicii)").
Next, respondents cite sources that indicate that Abu Khaliid discussed jihad with men he cncuuragcd to go to Afghanistan for militttry training. jTEXT REDACTED BY THE COURT) See JE
7 tFD-.l02. dated (TEXT REDACTED BY THE COURTj summarizing interrogation of ISN 498)

at 1 (reporting that ISN 498 said Abu Khalnd talked about "the training camps in Afghanistan"
and "how ihoy should travel to Palestine to fight the Jews"): JE 8 (FD-302. dated [TEXT RE

DACTED BY* THE COURTl. of inteirogation of ISN 522) at 2 (reporting that ISN 522 said

Ahu Khclud told him he shnnid go to Afghanistan to receive miliiar)' training so he could fight Rus
sians in Chechnya).

Respondents further contend that Abu Khalud arratigcd travel for other dclatnccs along the same

route Latif reportedly took to Afghanistan: Abu Khalud sent each detainee on a flight from Sa

naa, Yemen, to Karachi. Pakistan, and then hy bus through Quctia. Paki.«an to Kandahar. Afghani
stan. See, tf.g.. JE 8 at 2-.1 (reporting that ISN 522 told his Interrogator that Abu Khalud ar
ranged for his trip, which involved a flight from Sanaa to Karachi, a bus ride to Qiietta, and another
bu.s ride to Kandahar).

[TEXT REDACfED BY THE COURT)

Finally. (*21) other detainees told interrogators that Abu Khalud arranged for them to alleml a mili
tary training camp and/or to light in battle. [TEXT REDACTED BY THE COURT) JE 7 at I (re
porting that ISN 498 said that alter Abu Khalud recruited him. he went to Al Farouq. a train

ing camp, and to the site of a battle north of Kabul. Afehanisian): JE 8 at 3-4 (reporting that ISN
522 said he attended "a training camp outside of Kabul" as well as other training camps after trav
eling to Afghanistan al the suggestion of Abu Khalud).
Respondents argue that Ibrahim's identity is signiltcaiu. They asiten that because Ibrahim was a fa
cilitator for Al Qacda who cneiiuruged and assisted tnen who fought on ttchalf of the Taliban to
travel to Afghanistan, their theory that Latif became a lighlcr after leaving Yemen is likely to be ac
curate.

2. [TEXT REDACTED BY THE COURT)
ITEXT REDACTED BY THE COURT)

[TEXT REDACTED BY THE COURT)
Bused on their cuntentioiis that Latif was recruited by Abu Khalud and trained and fought with
the Taliban in Afghanistan, respondents ask ilic Court i«) cuticludc that Latif is lawfully de
tained.

B. LatiPs Arguments

Latif argues that re.spondciit.s' reliance on [TEXT REDACTED BY THE COURT) is misplaced
 *22  bccau.sc the document is inltcrcmly unreliable and because more reliable rcprwis ITEXT RE
DACfED BY THE COURT) contradict the information it contains. Latif asserts that the infor
mation in these other .statemciit.s dcmonstnitc that the man he met named Ibrahim was not Abu

Khalud and that Latif neither trained nor fought with the Taliban hut instead was in Pakistan and Af

ghanistan to .seek ineJicul care.

E*. 122. =g. B

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 I

I'a£C U of 14
:oui U..S. n«M. i.kxis »s3.v)6, *22

1.arsucs that ITEXT REDACI EI) BY THE COURT) is not rellablf.
Latif asserts [TEXT REDACTED BY THE COURT) jmd offers several reasons the Court should
not rely on them.

First. l.atil" argues that the eircumsianccs of [TEXT REDACTED BY THE COURT  creation call
into question its reliability. [TEXT REDACTED BY THE COURT)
111 addition to these arguments about the document il.scif. l^atif places great emphasis on the fact
that [TEXT REDACTED BY THE COURT] are not coiroboratcd by any other evidence in the re
cord. Respondents have not produced, he notes, any evidence that any other detainee ever said he
saw Latif at a gue.sihDusc, training camp, or baltlcricld. See JB 80 (Department of Defense Crimi
nal !nve.stigation Task Force Memorandum recommending Latifs release) at 2 ("No other dcluinecs have identified [*23] [Lalif . except 11s having been seen at various detention facililies."). Furthermore. Latif points out that respondents thcmselvc.s appear not to have relied on
[TEXT REDACTED BY THE COURT] in asse.s.sing his detention. Specifically, the Depart
ment of Defense dctemimed in 2()()4 tliai Latif "is not known to have participated in combatant/
ierTori.si training." JE 79 (Joint Task Forec Guamnnumo Memorandum recommending transfer
of Latif for continued detention in another country, dated [ TEXT REDACTED BY 'ITIE COURT]
at .S, and respondents dcicnnincd in 2(107 that Latif .should he transferred away front Guantunuino Bay "subject to the pruce.ss for making appropriate diplomatic arrangements for his tlcparture." Pcl'r's Mot. to Set Hearing Dates for ISN I.Sfi [[. Ex. A (email fnim Department of De
fense employee to counsel for Latif (Feb. 22. 2(X17)) at I (#7281. which was not completed.
2. Latir argues thai Ibrahim was not Abu Khalud.
Latif asks the Court to ctmsidcr other evidence in the record [TEXT RED.ACTTED BY THE

COURT] .SpectlleallY. as to respondents' asscnion thai Abu Khalud encouraged Latif to travel to Af
ghanistan. Latif argues that the statements he has made about Ibrahim Alawi during various inierrogation.s  *24) while held at Giianlanamo Bay dcmoii.stratc that the man who cnccniniged him
to leave Yemen was not Abu Khalud.

First and most significantly. Latif has repeatedly asserted that Ibrahim was a humanitarian who of
fered to help arrange free medical can: for him. See JE 25 at I ("[Latif] went to a local relief
ugciicy -Hikmal- seeking nnancial assistance for his medical problems and met an individual named
Ibrahim f(Aliwec)). who offered hiir. help.. . . Ibrahim (old [Lalifl that he could get [Latif)
free medical help in {Pakistan]."): JE 24 (FU-.'()2 summarizing [TEX 1 KEUAU J tL) BY IHE

COURT) interrogation of Latif) at I ("iLatifj contacted the Al Hijma organization and dealt with

an individual named Ibrahim A'lim. A'lim rccommeitded a hospital in Pakistan and told [Latif]
that his organization. Al Hijma. would pay for his ircaimeni . . . JE 27 (FD-.102 summarizing
(TEXT REDACTED BY THE COURT) interrogation of LatiO at 1-2 ("Latif met a man from

his home town Ebb. Yemen, named Ibrahim ([Last Name Unknown]) who collected money and con
trolled a charity called Gumeiat Al Hckma. .. . Ibrahim collected money for his charities from
all of the Gulf statc.s.... Latif indicated that the reason he traveled [•25) 10 Afghanistan from Ye
men was to .seek medical ireatmeiu fur his injured cur. I'hc trip was sponsored by Oamctt Al

Hckma. . . ."); JE 28 (FD-302 dated [TEXT REDACTED BY THE COURT] summarizing inter
rogation of Latif) at I ("[Latif] was in Pakistan hccnusc Ibrahim Alawi. a Yemeni man who

wu.s a humanit.irian. took him to the hospital iherc."); JE 29 (FM4I) summarizing [TEXT RE
DACTED BY THE COURT) interrogation of I.alif) at I ("[Latif) met Ibnihim Aliwec. who wa.s as
sociated with Al-Hikmuh. a charitable organization. Aliwec told [Laiifj that he could receive

free medical care in Pakistan."): JE .)l (Enemy Combalanc Election Fonn. dated .March 28. 20051

Ex. 122. Pg. 9

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U.S.

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ut I (noting thai "liln rc.spon.sc lu the allegation that Ihmhim Aliwcc is a probable member of a!
Quida, ILutifl .stated that Ibrahim only provided humanilariun aid and did not know of any of hU affiiiation-s"). Latif notc.s that other than ITEXT REDACTED BY THE COURTl which, as ex

plained. he arguc.s i.s not reliable, there i.s no suggestion in the record that anything about l-atifs inleiactions with Ibrahim indicated that Ibrahim had any cnnn(K;tion to AI kjacda. the laliban. or

any other terrorist group.
Second. Latif asserts it is .significant that the I"261 name he ascd wlicn de.scrihing Ibrahim—
Ibrahim Alawi—is different from the name other detainees have u.sed when talking about Ahu
Khalud—Ibrahim Ba'alawi. All rcpari.s of Latifs siutcnicnts in the record indicate that Latif said
the man he met was named Ibrahim Alawi. or some variant of that ia.st name, without a "B."

See ITEXT REDACTED BY THE COURT] JE 2.1 at I (referring to Tbrahim ((Aliwcc))"); JE

2.S at I (rcfcrrinp to "Ibrahim ((Aliwcc))"); JK 24 at I (referring to "Ibrahim ATim"); JE 86 at 4 (re
ferring. in lcs.s than fully clear handwriting, to "Ibmliim Allum" or perhaps another name begin
ning with the letters "All"). All but one of the detainees who.sc inicmrgation summaries are in
cluded in the record bceau.sc they refer to Ahu Khalud use the name Ibrahim Ba'alawi. See,

e.g.. JE 5 at 4 (referring to "Ibnihcim ((Ba'alawi))"); JE 92 (FD-.102 summarizing  TEXT RE

DACTED BY THE COURT) interrogation of ISN 22.1) at 1 (rereiring to "Ibrahim B'alawi"): JE

II at 3 (rereiring to "Ibrahim ((Balaalawi))"); but see JE 57 (SIR summarizing (TEXT RE
DACTED BY THE COURT] Interrogation ol ISN 688) at I ("PSN 688} explained that his facili
tator Rahim Allawi and Abu Khullud arc the same person."). Expert [•27] declarations Latif
submitted to the Court indicate that Alawi and Ba'alawi arc dilTcrcnt. common names in Yemen, JE

94 (Dccl. of Abdiil-Ghani Al-Iryani) 1 2; JE 9.5 (Decl. of Jonathan A. C. Brown) i 2. suggest
ing, Latif asserts, that Latif and the other delaiiiees would not has-c iiiistnken one for the other.
Latif further notes that he has never referred to the Ibrainm he met as Abu Khalud. wlicreas the ilc-

tainccs whose interrogation reports are cited do use that name. .fee. e.g.. JE .3 (FM4fl summariz

ing interrogations of ISN .39 on {TEXT REDACTED BY THE COURT]) at I ("(ISN .39]
P28] advised Ahu Khalud Al-Ycnicni . . . assisted in facilitating hi.s travel from Yemen to Af

ghanistan."); JE 5 at 4 ("IISN 19.3] stated Abu ((Khioud)) . . . prdd for (ISN I9.3 's travel to Paki
stan and Afghanistan."); JE 8 at I f'll.SN .5221 met an individual at the mosque named Ahu
Khalud.").

Latif also argues it i.s significaiti that the physical (te.scriptiun he gave of Ibrahim docs not match
the descriptions of Abu Khalud included in the interrogation reports of .several other detainees. Ac
cording to notes an FBI interrogator ttxik during an interrogation of Latif in May 201)2. Latif said
Ibrahim was ".30-40 [years] old." five feet seven inches tall, "skinny," with "fairer'' skin and a
"big beaitl." JE 86 at 4. Other men described Abu Khalud as younger and heavier, and some noted
that he had a noticeable injury to or scar on his face. .See Petitioner's Exhibit ("PE") I (2002

IIR containing a Tiiugraphic report on Ibrahim ((Alawi))" whose alias was "Abu ((Khului))." based
on infonnatinn from a detainee held at Bagram) ut 1-2 (noting Abu Khalud was horn In

1975—27 years before the IIR was created—listing Ahu Khalud's weight as "heavy" ami build
as "a little rotund." and slating that in 1996. Abu Khalud [*29] "had a pla.sttc plate on the left side
of his skull, where he had been .shot in Basniu"); JE 96 (SIR of Oct. 17. 2004 interrogation of

ISN 498) at I (reporting that ISN 498 described Abu Khalud as "very fat" and "slightly older than
the detainee." who wa.s twcmy-si.\ years old at the time ol the intcrTOgation. but stated that Abu
tu l.;ilir titiil bcciiuw litis iiulltct Jcioincc :iImi apparcnlly pmiininL-cil 'Ittrahnii" wiltiinil llic "H" stiund- -lie syid
"Kaliini.'* II: M al t—he niiphi liiive tiwJ •niiic scwi i>l > Vcth imruirntcnl lliiil prcvcniol hint Inim pniauvncinf "Da'^ilawj* avct-cily tif 3 «i> niocs lh:ii anolhi-r sKilrnicnl this dctiiiiiL'c rcponcdis m.-ulc lo imi-mipitiDrN cimllicicd with itic slgTciiicnts «r strscral Iilhcr d«lainL-.;s suci) dii« lliis Onin Ciiund. in uiioiIilT I'flilioncr's case, ih.il il was nt« crvditilc. AtuMi >: Olximii.
H. .SiiPU, Jil J.s. JOlO 1- -S Otsl. l.h.XI.S 4'4'/. . 3<Hi) Wl. :I2<>II4I. al 'II.

Ex. 122.Pg. 10

SOUTHCOM/000207

 I

I>jge II (It 14
2 0 1 ( 1 U . S . D K t . I . r. X l S 8 . I 5 W. ' 2 0

Khalud "has no dishiiguiNhinj! marks such as scars"): JE 43 {SlU suinmari/ing Oct. 13. 2(X)5 iuicrrogaiiun of ISN 215) ui 2 (reporting tital ISN 215 said Abu Khaiud "was approximately 30years-uld in IIX)!." "was u big guy. well-built, maybe XO or 90 kilos." the ci uiva)cnt of about two

hundred pounds); JE X at i trcporting that ISN 522 said Abu Khalud was twenty-seven years
old. had a "(Ijargc" build, and had a "jrjound scar in middle of forehead from bullet injury); JE

6 at I (reporting that I.SN 223 said Abu Khalud had a "stocky" build hut bad no scars).
According to Laiif. other details counter rcspondcni.s' conieniioii (hat Ibrahim Alawi and Abu
Khalud arc the same person. Several detainees said that Abu Khalud was from I'ai?.. Yemen or was
alTiliaied with a ntOMiuc there, .vcc. JE 5 at 4 (reporting that ISN 193 said Abu Khalud was
a "prayer leader" at a nioMjue 1*30) in Taiz); JE ft at I (reporting that I.SN 223 said Abu Kahlud
was from Taizt; JE X at I (reporting that ISN .522 met Abu Khalud at a mosiiue in Taiz). but
l.atif said Ibrahim was from Ibb. a town near but distinct from Taiz. and was affiliated wiUi hu-

maniiarian organizations, sw JE 25 (SIR of (TEX1 REDACmD BY THE COURT) intcmtpalion of l.alif) ut I (reporting thai I.Miir.saiit "Ibrahim was from a town called Ibb." that he met Ibra

him at "a lociil relief agency" called "Hikinai." and that Ibrahim "ran his own relief type agency
called -Jamiai An-Nur-"); .vce «/.«> JE 65 at I (ntap of Yemen showing the locutions of Ta'iz
iind Ihb). In addition, an interrogation report indicates that a detainee said Abu Khalud had a daugh
ter named (TEXT REDACTED BY THE COURT) PE I at 2. but Lalif told an interrogator that
Ibnihim had a son named jTEXT REDACTED BY THE COURT! imd a daughter named jTEXT
REDACTED BY THE COURT) JE 86 at 4.

Becau.sc. according to Lalif. Ibrahim Alawi was not Abu Khalud. Latifs inicravtion with Ibrahim

docs not make it likely that Lalif traveled for the purpose of put licipating in military training or
fighting or was inclined to do so.
3. lailif nr);ue.s (hat he left Yemen in search of free {*31) medical care.

L l..a {rN explunutinn

As to respondents* allegations that Lalif trained and fought with the Taliban. Laiif argues that
his alternative explanation of his activities between August and December 2001 contradict and dis

prove them." " During the many interrogations in which Uitif has participated {TEXT RE

DACTED BY THE COURT} Laiif has repeatedly said that he left Yemen solely for the purpose
of receiving medical treatment. He as.scrts that he was in a car accident as a teenager and was in
jured severely enough to have been sent to a hospital in .Amman. Jordan for treatment. JE 24 at 1:

JE 25 at I; JE 26 iSIR .summarizing [TEXT REDACTED BY THE COURT) interrogation of
I.alilj at I; JE 27 at I: JE 29 at I: JE .34 'I'j 2-3. The damage to his skull was not fully cor-

meted, liowcver. and he continued to have prohloms with his hearing and other discomfort after ro-

tiirning to Yemen. JE 24 at I; JE 25 at J; JE 33 (summary of Latifs ARB proceedings) at 4-5;
JH 34 'H 4. He eviuld not alTord follow-up medical care. so. he say.s. he sought out assistance from
chariiahlc organi/ations. JE 24 at I: JE 25 at I: JE 27 at 1; JE 29 m I; JE 30 at 6; JE .34 1f 

.5-6. As explained. Laiif asserts that he met 1*32) Ibrahim Alawi in this capacity. JE 24 at I: JH
" II OOl NOTr. RI-IJACTFD l«3.S  BY Till: COUITi   lie Mated Uurinf hie Cuflit^Mant .Status Rcvk-* Trihun.tl rCSlTrt
h.'ariii ! (hat "(l hc infnnnitlloii in ihe uniCissilicd siininwrv" hvlnri; (he Trihiinnl. which inclutlcil Ihd allejfaiiixi lhal ho was "an al

IJaida fnflilo)' jiiO "iiaiiilvd) ol ilw al-i-'iiuiu  iiaiiiiti^ s.'nii)i iii Ar)!lituus«au.' was "inttHTcct" and 'mu ahuw mo." Jti 3ll igndjioil irinso'ipi III C*.SRTpfucccdidfts) al .1.4. In March I(lH5 apparcnllj in prcp.iialii>n rur an AdminisirMivc Review' Buan) l"ARn")

piin-i'cilinj;. and then again al ihc ARR hearing iuell. loilil' cild he liiil mn irasvl li> li^hi iir train. JR .t  at I; Jt- .t.t at I. 'Ilie dec-

lornlutn ho prcptiioil fur use in this lilipaiti<n jssrns thai ilio jlio^alliin dial Ills "puiimsc in  Kiin ! H» Alphanision was in Iti-hl ji.
had" IS'mil tnio." Jli.Wt 10; n-o idwiiW. 1 13 i*l Iiiisv novor rocoiwii ;ioc ucjpnns irainin^. Inmi thcTalihjn. al any trainin; vamp.
i>r anyuhcro olso. I havo never parttcipalcd in iiiiliCir) ti^litinj! in AiehaniMan i<r unywhoio olso 'l

Ex. 122. Pg 11

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 Page 12 III" 14
20IU l\S. Di«. IJiXLS K359ft. *32

25 ai I; JE 27 ai I; JE 29 at J; JE 33 at 2. 5. 7; JE 34 'J 7. Ibrahim told Utif he could arrange
free medical care in PaklMan. so in August 2001. Latif decided to make the iournev. JE 24 ai 1-2:
JE 25 at 1; JE 29 at I; JE 33 at 2: JE 34 n 7-8. Latif Ocw from Yemen m Pakistan and trav

eled to Kandahar. Al'ghaiiislan to End Ibrahim, who was apparently in Kandahar at the time. JE
24 at I; JE 2.5 at 2; im xee JE .141 8 (stating that Latif went dircclly to Kabul to find Ibrahim). Latif

explain."! that he was nm able lo receive care right away—Ibrahim was too busy lo help him im
mediately—so he stayed at an islamic studies center near Kabul while he waited for trcatmenl. JE 25 at 2: JE 48 at I: JE 29 at I; JE 30 at 8, 9: JE 33 at 2: JE .14 1 9. In November

2001. after Kabul became the target of bombing. Latif was advised to flee the area. JE 25 at 2;
JE 29 at i. Latif asserts that he stayed in a village, at the home of ii man named Mohammed, for

upproximutely a month and then found an Afghani guide to lead him to the Pakistani border. JE
25 at 2; JE 48 at 2. There is no dispute that Latif wu.s seized iKtir that border in late 2001.
This version of events is corntboraled. Latif argues, by various pieces of evidence in the record.
First. Latif has submitted to the Court a letter, diitod Augusi 2). 1994. from a doctor at the Is
lamic Hospital in Amman. Jordan confirming [*34] dtai Latif "wa.s admitted" on July 9.1994 "fol

lowing a head injury." JE 32 at 6 (also noting that Latif suffered a "broken .skull" and there was

"blood coiiccmration and hemorrhage above the left eye, and a hole in the left eardnim"). He has
also included in the record before the Coun a Idler dated August 18. 1999 from Yemen's Minis

try of Public Health indicating that "j wjc recommend that [Lalifj return lo the previous center out

side for more tests and thcrapcuiic and surgical procedures al his own cxpcn.sc." hi. at 10 (explain

ing (hat Latif "is hard of hearing" and "a wide circular hold was detected in his left eardrum").

Furthermore, there arc indications in the record that when Latif was .seized traveling from Afghanislan to Pakistan, he was in possc-ssion of medical records. JB 46 at 1 (noting that Latif was

sci/cd in a "[bjorder  t own in jPakislanj" wiifi "medical papers"); JE 66 (unidentified govcranwm ducumciu compiling infonnation about LatiO at 2 tsiuting thai "jl-aiifl had mcdival papers

but no passport or weapon" wlicn he "surrendered himself to  Pakistani  authorities"). ''
ii. Respondents* counterarguments

Respondents counter that Latif has lold inlcrrogalors inconsistent stories, which they u.s.seri dem

onstrates that Latif is lying to cover up his true activiiic.s. Tliey highlight two documents to sup
port this comcnlion. First, they poini to the intake form compleicd when Latif came into United
Stalies custody, which reports that l.aiil'"vi'em m [Pakistani for treatment of an car problem."
and that latif "wa.s in Kabul." where he "claims he went just to look around aboul 4-5 momhs

ago" and where he "stayed jforj 3-4 months." JE 46  *36  al 2. Respondents argue that the note

about "lookfingi arountl" i.s un indication that Latif csscntialJy said he wa.s a louri.st in Kabul,
which is di.stinci from the idea that he stayed at the Islamic studie.s center. TTiey also note that the
form contain.s no reference to Ibrahim or a cju- accident. Next. respondcnt.s point to a document la

beled "Knowlcdgahility Brief." which indiciitcs that Latif "travelled [sic  to .Afghani.stan to
help Ibrahim ((Aliwce)j improve the Islamic studies center in Kabul." JE 23 at 1. Respondents ar
gue titat this story is inconsistent with I .atifs contention that he was al the center awaiting irealittcnt and note that it docs not mention a cur accident or injurie.s.

Re.spondcnis also point to smaller inconsistencies in Latifs retelling of hi.s .story. In particular, in
(TEXT REDACTED BY THE COURT). Latif reporicdly told an interrogator that he followx:d
" lto.-p(indcniN arjuc (hai ihc-c iiulicaiion* arv uviili-ntx ih>ii l.aitf hi.- hud nicdiciil  '.X5] wiili liimui ilie
liiiv lie riillivr lhan lliiil he in I'uci liuil Iticin. 'Hit:}  X>iri lu esidcflct: in (lie ivenKl lltiil t.ulil' W'U> in poxsevsiim of nKiney
«lKii eaplured. .\rr Jti S.I at I idiKunteiil reciirilint: ehuiii nt eusuidy uf HalLivlaiii tuneiicyi. lo deiminMruie ihal I,.ilit pi«)CMd
twly iiHincy when Ik was lr:in%l'envd lo L'..S. egHiKly. niii ilial evidence dues not exclude ihe poveiWity that Laiif tud other items
at ihe liiite ! e was xe/ied Beeuuse lespondeiils do not preeeni cvidenee ih.il enuniers the nocilinns (n gnvcmmcnt ilucuine*ils
llMI l.utirhcld iitcdical reenrdv atieii Itikcn inln I'akistsini eustudy. ihe Court dixis nut eredii ilKir u^uinvtii.

Ex. 122. Pg. 12

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 I

13 nf IJ

2D10 U.S. DiM, LliXIS 8.W6. *36

wriitcii instructions to meet Ihrnhim in Kandahar and truveicd to Kabul only uftcr staying with Ibra
him there. JE 25 at 2-X But in {TEXT REDACTED BY THE COURT}. Latif reiwrtcdly told
an interrogator that he traveled directly to Kabul to lind Ibrahim. JE 29 at I. and in his 2<X)9 dec
laration. Latif .stated that he believed he [•37  would meet Ibrahim in Pakistan but went on to Ka

bul to find Ibrahim there. JE .14 '  8. In addition, respondents note that Latif has said that he
stayed tit the hospital in Jordan for three months allcr his car accident. JE 24 at 1; JE .14 '  .1. hut
the evidence in the record demonstrates that he was only there for five days. JE .12 at 6.
Finally. rc.spondcnLs assert that s-ome of Latif s allegations arc unlikely to be true. They argue
that records from his arrival at Guar.tanatno Bay undercut hi.s assertions of being di.sablcd by in

dicating that Latif htid "no significaiu medical illne.s.s or injuries while detained at Kandahar dc-

icniion facility" and "denicldl significant medical [history)." JE 54 at 1. .1. Fuahcmioro. they submii a declaration from a physician who concluded that Latif was ph>'.sicully able to be a fighter.

JE 55 iDcd. of (TEXT REDACTED BY THE COURT} (May 25. 2010)) H 12. " Resptmdcnis also
argue that had Latif been at an Isluinie studies center near Kabul, he would not have stayed
there until November 2001. JE .14 •( 8-9. by which dale civilians have been fleeing for months,
•we JE 91 (LARA HAYES & BORGI.NA BRUNNER. "TIMELINE: THE TALIBAN") at I {indi

cating thiU "Afghans begin Oceing I'JHl Kabul" in mid-Scptcmbcr 2(K)I)). Instead, respon
dents u-sscri. leaving the Kabul area at the lime the Taliban abandoned that city, see hi. at 3 (not
ing that the Taliban had left Kabul by November 1.1. 2001). .suggests that Latif was with
Ta l i b a n f o r c e s .

C. The Court'-s Findings and Conclusioas

The evidence upon which respondents primarily rely, (TEXT REDACTED BY THE COURT) is
not sutTicicntly reliable to support a finding by a preponderance of the evidence that Latif was re
cruited by an Al Qucdu memlKr or (rained and fought with the Taliban. The document contains inronnalion that.  TEXT REDACTED I*39  BY THE COURT] would support a conclusion that
Laill's detention is lawful, and the Court does not take its contents lighily. But the Court cannot
credit that infumiatinn because there is serious tiuc.siion us to whether [TEXT REDACTED
BY THE COURT] aecuruicly rcllecis jTEXT REDACTED BY THE COURT) ilie incriminating
facts (TEXT REDAd'GD BY THE COURT) are not coiroboraicd. and Lulif ha.s prc.scnted a plau
sible alternative story to explain his travel.
[TEXT REDACTED BY THE COURT)

in addition, it is .signillcunt that, ivs Latif cnipha.si/.cs. there is no corroborating evidence foi any
of the incriminating statemcnt.s [TEXT REDACTED BY THE COURT] Accordingly, although die
Court dues not disregard {TEXT REDACTED BY THE COURT) it will not find it more likely
than not that respondents' allcgutioiis that Latif trained and fought with the Taliban arc true.
The Court makes (his ruling having taken into consideration the explanation of events Latif has of
fered. Latifs story is not without inconsistencies and unun.swcrcd questions, hut it is supported
by corrobordting evidence provided by medical professionals and it is not incredible. The Court docs
not accept respondents' contention that Latif must be lying  '*'40  bceau.sc he has told more
thun one cover story. Tliut ihcoiy is based on two isolated siaicnicnts. TIic first, an indication
'' vubmiucil u dccliiriitinn I'riini anulkcr rh>i>tciun nhi) nutcd thai because 'incJical screening fur ininstt-r bjr air or injirnccvsiu)! is utpedieni uitii lime scnsiiivc." suci: scrcciiinji "uficn ii<i e.s  nol idcniUV clinical imihlcnu that Inicr become a)i)Kireiu," Pi:6 itx-cl. ul'SifpItcii N. .Xcnakls. M.t>. (June fi. JlllUill 15. 'Pills  itpstciiin liHikcd al t.aiirs iiictlical rcnirds and foitiid thai
i)ic evidence <il ii "linear skull Inielutc" and linii-erin; "syiiiploms ul headaches, iiii Siirnivnis in iiicint>ry and cimccniraliim. and
lusses in hc.iring and visum" ivtiuld distiualif) Irilif I'tiiin Untied Suies military scisiw. W. 1 19.

Es. 122.Pg. 13

SOUTHCOM/000210

 Pat'c IJ ol U
2010

U.S.

I>«.

l.I;X[S

*40

that Lutir said he went to Kabul to "look amutid/' JE 46 al 2. dues nut contradict Latifs version
of event.*, in which he went to Kabul to wail for treaUncnt. Furthermore, the document's refer

ence to an ear problem. Nuggc.stioii that (^aiif arrived in Kabul approximately five month.s earlier,
and indication that he was elsewhere for the month preceding capture arc all consistent with
his -s-iory. The second statement on which respondents rely, an indication that Latif said he was help
ing at the Islutiiic studies center, may he the result of a misunderstanding or mistranslation.
Given the opportunity at his ARB pri>cccdiitg to respond to the contention that he was helping Ibra
him at the Islamic .studies center, as suggested in the Knowlcdgability Brief, JE 23 at I. Latif
Slated that the truth was just the opposite. JE 33 at 7 (rcpuriing that in response to a statement that

"lilt says in the Unclassincd Summary that you traveled to Afghani.stan to help Ibrahim." Latif
said "(hjim tu help inc. not me helping him").
Re.spondcnts' other arguments attacking the credibility of Latifs  *4I  story are similarly uncon
vincing. The smaller inconsistencies to which respondents have ptiinied may be no more than misstatements or mistranslations: even if .some details of Laiil 's .story have changed over time, for

whatever rea.son. ii.s fundamentals have remained the same. The timing of his departure from Ka
bul is not .sulficicm to create an inference that he was involved in fighting. Whether Latif was suf-

[icicnily physically impaired as to make it impossible for him to fight is not a crucial ques
tion: much more important is that the evidence shows that Latif did have an injury thai continued
to aflbci him in 201)1 and for which lie might ihcrefore have sought treatment. Thi.s exculpatory in-

fomiatiun contributes to the Court's finding tliai respondents have not proven by a preponder
ance of tlic evidence that Latif was in Afgluniisiait to train and tight with the Taliban.

Because respondents have not demonstrated by u preponderance of the evidence lhat Latif was

pan of Al Qucdu or an associated force, the Court concludc.s that his detention is not luwfui un
der the AL-MF. Accordinglj. hi.s petition must he granted.
111 . C O N C L U S I O N

For the foregoing reasons. Latifs petitiort Cor a writ of habeas [*42  corpus shall be granted. An ap
propriate order accompanies this memorandum opinion.
/s/ Henry H. Kennedy. Jr

Henry II. Kennedy. Jr.
United Slates District Judge

July 21.2010

Ex.122. Pfl. U

S O U T H C O M / 0 0 0 2 11

 I

^'LexisNexis*
l i M i r N a n * : K RY S TA M A R K U S
D a t e fl l u J T i m e ; ( ) C I m . 2 t ) l 2 ( W : . s s l i S T

Jnh Number: IIII53')
Dacumentt!)
I Ahdali V. Ohanw. 20111 U.S. Disi. LUM.S S.359(S
Clicnl/mutler: -Notic-

L c x I s N c x i s : A 6 q v < \ ' Te r m s 8 1 C o n d i t o n s I C o o v n o h t o 2 0 1 2 I c x i s W c x i s .

Ex. i22.Pg. 15

SOUTHCOM/000212

 UNCLASSIFIED//Fe^

ISN 156 had a long hisTory of psychialr'tc treatment. At the time of h(s death, his diagnosis was:
Axis I: B^otarhiOS with Psychotc fx (-/o Secondary to TBI), r/o Cognitive D'o
Axis II: Oerdsrline PD with Antisoclel traits

Axis III; Hx Moderate-Sever© TBI. Inteimlttent Cx Hunger Striker, Latent TB. Hop B. Bllat LE FolliaJiftis

Axis IV: Legal Prabtems, Long-temn detention, Geographic Separation froti family and country
Axis V: 50-55.
Explanatior:;

A) Bipolar disorder. Axis 1, (a mood Disorder where moods can swing either high
or low). Host recent swing was to the "high" mood (mania) to the point that lost
some touch with reality (at least as oost people would understand reality).

B) Another type of psychiatric or psychology diagnosis is the personality

"disorders' sometimes referred to as AXJS II. These are mismatches between the

personality (basic way someone relates to the world) and society. Mcst pcr^le

have personality 'qji"ks' but some people have a personality that docs not fit
well in society and would be considered a disorder, Personality disorders are

long lasting and difficult tc change because they involve a dysfunctional way of

getting through life. ISM 156 was clagnosed wltn Sorderline Persorality
Disorder. These ocople are unstable in how they view themselves and with their

relationships wltn others. They are Impulsive and feel empty insiee. They like

to generate "crises" and may harm themselves, classically by cutting to "feel
something". They are classic 'splitters* that split groups Or teams up anc keep
things in commotion. They tend to view people very concretely: if you are good,
you are a saint a.nd can do no wrorg, if you are bad you are completely bad. They
ere unstable in these relationships so (someone can do no wrong for awhile, then

suddenly they will turn on them ard the fonner saint has become the devil. They

are typically difficult people to live With, always on a roller coaster of

crisis, manipulative, splitting people and setting groups or individuals against
each other. witT medical personnel, this personality disorder can make it
difficult to form a therapeutic relationship. They may start off with "you are

the greatest doctor, -finally 1 found sompone that understands and cares about me"
then suddenly "you are the worst Doctor in the world" evil, out to get me, you
don't care etc. (iocs get suckec into these cycles of being good or bad at times.

Frequent turnover of medical personnel may feed these cycles.
C) In addition to 156's Borderline Perspnality Disorder (PO), he also had some

traits of another personality disorder: "antisocial personality disorder".

Antisocial ?Ds show a "pervasive disregard for the rights of others" they are

Impulsive, reckless, aggressive, and do things that society generally views as
bad, like promiscuity and criminal bebaVior.

D) The Rule Outs ("R/O") are medical factors/diagnoses about the patient that
potentially could also explain cr be a facto- in his/her psychiatric dlag-oses.
It is usually for things that cannot be excluded by a simple test and thus
ironically cannot be easily ruled out. The "R/Os" could serve as possible
alternative explanations for the psychibtric problems that are noted, in this
case, with his history of a car wreck and head Injury, perhaps he could have

brain damage to the part of the brain that controls personality (frontal lobes)
that would make him Impulsive, aggressive etc. Also, the psychiatrist stated

Ex. 128, Pg. 1

UNCLASSIFIED/)Pet^
SOUTHCOM/000213

 I

UNCLASSIFIED//Pd4^

that may have "cognitive disorder" which usually implies pfobletns with basic
thinking and memory, intellectual developnert such as uental retardation or
denentia (such as from Altheiners for example) that also could explain some cf
his behavior. These R/O's are likely why the MF wanted to look at the brain to
look for signs of injury or shrinkage/cell death in certain parts as would be
seen in a dementia process.
Axis III are significant medical diagndses that may or may not impact on the

psychiatric problems. Axis IV are social situations that may Impact the patient's
current state of well-being.

Bottom line: this psychiatric diagnosis pattern would be one O'' a person who is
unstable ir moods, self-view, and relationships with others. He likely would have
been difficult to get along with and prone to manipulation, aggression and may
harm himself or others. The manic phasd oF bipolar disorder would have Inpaired
sleep and judgment. He was likely higlily energetic, Impulsive and irritable.
A review of the record confirms this picture. He had stormy relationships and was
p ro n e to vi o l e n ce . H e h a d a ttempted suicide at least eight times. His behavioral

problems impacted his life severely an<^ therefore, the 3MG psychiatrists over
years hao tried many medications to treat his illness. In the month prior to his
death, he had been transitioned to a newer, expensive, anti-psychotic medication
and was taking another base-line psychiatric medication, in addition to these two

medications, he received a third at least nightly to assist with sleep.

Command Surgeon, US Southern Comoiand
Certain information referenced from Diagnostic and Statistical Manual IV fDSM IV)

Ex. 128, Pg. 2

UNCLASSIFIED/^Feve

SOUTHCOM/000214