Courts Must Apply Presumption of Regularity to Enemy Combatants

By Robyn Hagan Cain on November 11, 2011 | Last updated on March 21, 2019

The D.C. Circuit Court of Appeals ruled against a Guantanamo detainee in a largely redacted case.

The circuit court found three errors in the lower court’s grant of habeas corpus to detainee Adnan Farhan Abd Al Latif. The court vacated and remanded the decision, instructing the district court to “evaluate Latif’s credibility as needed in light of the totality of the evidence, including newly available evidence.”

The D.C. Circuit specifically accused the district court of “overlooking the government’s expert evidence that [redacted]. By that theory, Latif could be any [redacted]. But the district court committed no clear error when, after considering the [redacted], it concluded the [redacted].”

(Sidebar D.C. Circuit: Be honest. Is there anything underneath the redaction, or did you just black out pages of "caselaw" to pique our curiosity? Because it worked.)

Latif was first detained in 2001, shortly after the September 11 attacks. CNN reports that he eventually was transferred to Camp Delta, "the high-security facility at the Guantanamo naval base for enemy combatants in the war on terror," where he was allegedly subjected to enhanced interrogation methods.

The D.C. Circuit Court of Appeals ruled that the district court should not have granted Latif's habeas petition because it did not afford the government a "presumption of regularity," which presumes that public officers properly discharge their official duties absent clear evidence to the contrary.

Latif argued that the presumption of regularity should not be applied in Guantanamo cases -- at least not to reports prepared in stressful and chaotic conditions, through interpreters, subject to transcription errors, and heavily redacted for national security purposes.

Instead, Latif proposed a balancing test of ordinary evidence.

The D.C. Circuit noted that "it is impossible to cure the conditions under which these documents were created, so Latif's proposed rule would render the traditional presumption of regularity wholly illusory in this context." Thus the court upheld the presumption of regularity.

As lawyers, how do you feel about the D.C. Circuit's unrelenting position on the presumption of regularity? With the numerous abuses that have emerged regarding enemy combatant abuse, is it prudent to assume the public officers properly discharge their duties in these camps?

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