On Monday, the Supreme Court handed down a list of cases it would (& would not) review next term. One was noticeably absent from the list: Latif v. Obama.
Perhaps the most closely watched Guantanamo-related case since the Supreme Court confirmed detainees' right to judicial review in Boumediene v. Bush in 2008, Latif raises a critical issue that goes to the heart of whether U.S. prisoners have a meaningful opportunity to challenge their detention.
Must a court presume the accuracy of a government document introduced against a Guantanamo detainee, even if it's not clear how that document was produced? The trial court said no, but the D.C. Circuit Court of Appeals said yes.
While in some cases it might make sense to presume the accuracy of a government document -- say, a tax receipt or a state court decision -- it makes little sense here.
In the case of Adnan Farhan Abd Al Latif, the heavily redacted document purports to summarize his statements to an interrogator after he was captured near the Afghan border with Pakistan in late 2001. The government claims the report supports its position that Latif went to Afghanistan to fight with the Taliban. Latif claims the report is inaccurate due to errors made by the translator; he says he was only in Afghanistan to seek medical care for a head injury from a car accident he'd suffered at home in Yemen.
Whatever Latif's reason for traveling from Yemen to Afghanistan, the order that a court must presume true a government's report of an interrogation by an unidentified interrogator who relied upon an unidentified translator is astounding. It essentially guts the detainee's Constitutional right to challenge the legality of his detention.
As Sabin Willett, a defense lawyer for other Guantanamo detainees, put it after the DC Circuit issued its ruling: "when the circuit lays the thumb of presumption on the scale, there's no more judicial review--not even in the court of appeals. 'Review' is in the anonymous DoD analyst who wrote the report."
The denial of judicial review to suspects imprisoned indefinitely by the U.S. military should be alarming no matter where it happens. But late last year, Congress passed a law that could allow indefinite military detention of suspects not only captured abroad and transported to Cuba, but captured and imprisoned here in the United States as well. The House of Representatives just last week voted down an attempt to change that part of the law.
The Supreme Court is expected to decide as soon as Thursday whether it will hear the Latif case and possibly restore a right to meaningful judicial review for detainees imprisoned in the name of the "war on terror." As the government brings that war closer and closer to home, now is the time for the court to step in.
Follow Daphne Eviatar on Twitter: www.twitter.com/deviatar