New York Times legal writer Adam Liptak notes an opportunity for the Supreme Court to flesh out what it meant when it ruled in 2008 that the privilege of habeas corpus applies to prisoners at Guantanamo Bay and requires that each detainee be given "a meaningful opportunity to demonstrate that he is being held pursuant to 'the erroneous application or interpretation' of relevant law." The case involves a Yemeni named Adnan Farhan Abdul Latif, who offered what U.S. District Judge Henry H. Kennedy Jr. deemed "a plausible alternative story" explaining why he was in Afghanistan in 2001:
His version is that he was in a bad car accident in Yemen in 1994, suffering a broken skull and a punctured eardrum. He was sent to Jordan at his government's expense for treatment. In the years that followed, he complained of headaches and hearing loss. In 1999, he was told to return to Jordan for treatment, but at his own expense. Mr. Latif said he could not afford that. Instead, he went to Pakistan to seek free medical treatment and then to Afghanistan to meet a Yemeni man who had promised to help him.
We can't be sure what the U.S. government's version is, Liptak says, "thanks to the extravagant redactions" in the ruling by the U.S. Court of Appeals for the D.C. Circuit that overturned Kennedy's decision:
"One need imply neither bad faith nor lack of incentive nor ineptitude on the part of government officers," Judge [David] Tatel wrote [in dissent], "to conclude that [BLACKED OUT] compiled in the field by [BLACKED OUT] in a [BLACKED OUT] near an [BLACKED OUT] that contain multiple levels of hearsay, depend on translators of unknown quality, and include cautionary disclaimers that [BLACKED OUT] are prone to significant errors." Let your imagination run wild. Play with your kids. It is hard to fill in the blanks with words that inspire confidence in a system that places great weight on such a document.
Liptak says "a good guess" is that the document, which "seems to recite Pakistani claims about the prisoners' affiliations with Al Qaeda or the Taliban," was "a C.I.A. intake report prepared as agency officials received prisoners held by Pakistan, probably in exchange for bounties." The D.C. Circuit conceded that the report was "prepared in stressful and chaotic conditions, filtered through interpreters, subject to transcription errors and heavily redacted for national security purposes." It nevertheless concluded that the document was good enough for habeas corpus purposes. "If the justices agree to hear the Latif case," Liptak writes, "they can explain whether their Guantánamo decisions were theoretical tussles about the scope of executive power fit for a law school seminar or whether they were meant to have practical consequences for actual prisoners."
The D.C. Circuit decision is here. I count 268 occurrences of "[Redacted]."
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