(By Benjamin Wittes and Larkin Reynolds) This summary is going to be short--short and obscure. The reason is that Judge Karen LeCraft Henderson opened today's arguments by announcing that almost none of the case could be discussed in open session and that she would thus allow counsel to make only brief presentations in public session. She would then clear the courtroom and have the real argument. The result is that both sides were constrained in what they could say, and had only a few minutes in which to say it. As we posted a summary of the case yesterday, we will assume reader familiarity with the facts--to the extent they are not redacted--in what follows. August Flentje opens for the government by saying that the bulk of what he has to say cannot be said in open session, but there are two points he can make. He never gets beyond the first--which is that District Court Judge Henry Kennedy should have resolved the issue of Latif's credibility in his opinion, which said that Latif's explanation of his conduct was "plausible" but did not make specific findings as to his believability. Latif's credibility is key, Flentje says, because his denial of the allegations contained in an intelligence report was Judge Kennedy's basis for rejecting that report as inaccurate. Judge David Tatel asks him whether it is true that none of the incriminating statements in the report was corroborated and that Judge Kennedy had his own doubts about the reliability of the report for other reasons. Latif's credibility, he points out, was not Judge Kennedy's only reason for rejecting the document. It was, Flentje reponds, his central reason. Judge Tatel does not dispute this claim, but he does reiterate that it wasn't the only one.
Judge Janice Rogers Brown steps in and asks whether it would be sufficient for a judge, confronted by a report on whose reliability he must pass judgment, to simply say that he found the document unreliable and not say more. In other words, if Judge Kennedy had not linked his doubts to Latif's denials, would there still be an issue about the credibility of those denials? Flentje reponds that, in this case, the denial is so central to the reasons to doubt the document's reliability that it is necessary to look into the credibility of the denials. He says he can go into the court's reason for doubting the document, and the reasons Judge Kennedy should have credited it, in closed session. He then argues that the scrutiny that Judge Kennedy gave to the report amounted to raising the government's burden of proof above and beyond the preponderance of the evidence. The judge, he notes, used terms that seemed to require certainty with respect to government evidence, while he used terms merely requiring plausibility and possibility with regard to Latif's statements. Judge Tatel objects to this line of argument. He reads Judge Kennedy, he says, merely as saying that this report is a critical piece of evidence, and the government didn't take steps to ensure its accuracy. That's different from raising the burden of proof. Flentje says he doesn't think it is. But Judge Tatel goes on. The preponderance of the evidence standard, he says, is the standard for the entire case--how much evidence the government has to bring to bear on the question of whether the detainee is part of Al Qaeda. The question here, he says, is whether this specific piece of evidence--which happens to be the government's principal piece of evidence--is reliable or not. Demanding that the government justify it rigorously is not raising the overall burden. Flentje argues in essence that these two points are not really severable, because Judge Kennedy did say that, if the document is reliable, then the government meets its burden. The critical basis for raising questions about that piece of evidence is the detainee's own denial, he continues, and that necessitates an inquiry into the credibility of that denial. But if the court has to evaluate detainee credibility in order to evaluate any piece of government evidence, Judge Tatel asks, doesn't that then shift the burden of proof to the detainee? Flentje says that there are numerous factors supporting the reliability of this document, but Judge Tatel cuts him off, saying that he can't address them in open session. He poses instead a hypothetical: Suppose a piece of evidence about whose reliability a judge has legitimate reasons to doubt. And suppose the court either stays mum about why he discounts the evidence--as Judge Brown had earlier suggested--or lists some of the factors that lead him to disbelieve it. If you require an inquiry into the detainee's credibility whenever the detainee contests facts that this evidence supposedly establishes, you've effectively required him to prove the government's case false. Flentje responds by citing Salahi and Al Adahi for the notion that the detainee's credibility is key and cannot be ignored by a district court. He concludes. Philip Scarborough then rises for Latif and says that the issue in this case is whether Judge Kennedy was clearly erroneous in finding that it was not more likely than not that Latif was a member of the Taliban or Al Qaeda. Judge Kennedy found the report, which the government concedes to be the key piece of evidence, unreliable, and this finding must be reviewed for clear error. This is, he notes, a very deferential standard. But the judgment is, in any event, well supported by facts--some of which he can discuss in open session. Judge Kennedy found, he says, that Latif was injured in a serious car accident. He was hospitalized in both Jordan and his native Yemen and the hospitals recommended ongoing treatment, which he could not afford. He got help from some charitable organizations and finally met someone who suggested that he travel to Pakistan. He did, in fact, travel to Pakistan for medical treatment. All of this, Scarborough says, is corroborated by medical records, by Latif's intake papers when he was taken into American custody, and by a medical doctor and former brigadier general who concluded that this claim that he suffered a head injury and received medical treatment was credible. By contrast, he says, the government came forward with one piece of evidence--the report--that the court found unreliable. At this point, Judge Henderson declares that the argument will continue in closed session, and the courtroom is cleared of uncleared riffraff like us.