United States Court of Appeals, District of Columbia Circuit
BEFORE: Garland, Chief Judge; Henderson, Rogers, [**] Tatel, [***] Griffith,
Srinivasan, Millett, Pillard, Wilkins, and Katsas, Circuit
consideration of appellant's petition for initial hearing
en banc, the response thereto, and the reply; appellees'
motion for leave to file a surreply and the lodged surreply;
and the absence of a request by any member of the court for a
vote on the petition, it is
that the motion for leave to file a surreply be granted. The
Clerk is directed to file the lodged document. It is
ORDERED that the petition for initial hearing en banc be
Rogers, Circuit Judge, concurring in the denial of initial
hearing en banc:
seeks initial en banc review contending that since
the Supreme Court's decision in Boumediene v.
Bush, 553 U.S. 723 (2008), holding that detainees in the
military prison at Guantanamo Bay are "entitled to the
privilege of habeas corpus to challenge the legality of their
detention," id. at 771, and that a "habeas
court must have the power to order the conditional release of
an individual unlawfully detained," id. at 779,
opinions by this Court have "effectively nullified
Boumediene," Pet. 4. Petitioner states that he
seeks initial en banc review because "panel
decisions have created a hollow habeas regime that leaches
all substance out of the Supreme Court's governing
precedents and effectively shuts down habeas corpus as a
remedy for any Guantanamo detainees." Pet. 4-5. Indeed,
members of the Court have expressed concern that the law of
this circuit has "compromised the Great Writ as a check
on arbitrary detention," Kiyemba v. Obama, 555
F.3d 1022, 1032 (D.C. Cir. 2009) (Rogers, J., dissenting in
part and concurring in part), and "has stretched the
meaning of the [Authorization for Use of Military Force] and
the [National Defense Authorization Act] so far beyond the
terms of these statutory authorizations that habeas
proceedings . . . afforded [to detainees] are functionally
useless," AH v. Obama, 736 F.3d 542, 553-54
(D.C. Cir. 2013) (Edwards, J., concurring in the judgment);
see also Hussain v. Obama, 718 F.3d 964, 972 (D.C.
Cir. 2013) (Edwards, J., concurring in the judgment);
Latif v. Obama, 677 F.3d 1175, 1206 (D.C. Cir. 2012)
(Tatel, J., dissenting); Abdah v. Obama, 630 F.3d
1047 (D.C. Cir. 2011) (statement by Griffith, J., joined by
Rogers, J., Tatel, J., dissenting from the denial of
rehearing en banc). Because a panel is bound by existing
circuit precedent, see LaShawn A. v. Barry, 87 F.3d.
1389, 1397 (D.C. Cir. 1996), petitioner's initial en
banc request is not unreasonable. Nonetheless, in the
ordinary course, initial panel review would assist the Court
in evaluating the merits of the habeas petition. See,
e.g., infra Concurring Statement by Judge Tatel.
Circuit Judge, concurring in the denial of initial hearing en
Boumediene v. Bush, 553 U.S. 723 (2008), the
Supreme Court held that the Suspension Clause guarantees
detainees held under executive authority at the United States
Naval Station at Guantanamo Bay the right to petition federal
courts for "meaningful review of both the cause for
detention and the Executive's power to detain,"
id. at 783. Observing that some detainees had
"been in custody for six years with no definitive
judicial determination as to the legality of their
detention," id. at 797, the Court declared that
"the costs of delay [could] no longer be borne by those
who are held in custody," id. at 795. Six years
have become sixteen, and the prospect of relief remains
largely illusory. As petitioner here points out, when it
comes to Guantanamo, this court has reversed each and every
recent grant of habeas relief it has considered on the
merits. See Pet. 4. Petitioner believes something
has gone awry in this court's jurisprudence, and I agree
that the en banc court has reason to consider whether we have
faithfully implemented Boumediene's holding.
case, however, gives us no occasion to do so at present.
Petitioner asks us to take the extraordinary step of
revisiting several circuit precedents before either the
district court or an appellate panel has had an opportunity
to consider how those precedents apply to the evidentiary
record in this case. Indeed, petitioner has attempted to
short-circuit the factfinding process altogether by
stipulating that at least three circuit precedents
mandate the denial of habeas relief when applied to
to petitioner, two of these cases, Al-Adahi v. Obama,
613 F.3d 1102 (D.C. Cir. 2010), and Al-Bihani v.
Obama, 590 F.3d 866 (D.C. Cir. 2010), divest
the district court of its role as factfinder by
requiring that "certain government evidence . . . be
given decisive weight." Pet. 12; see also id.
at 14 (reading these cases to establish that "the
government's 'reasonable belief that a detainee
visited a guest house frequented by Al Qaeda or the Taliban,
or attended a training camp, is sufficient by itself to
justify continued detention" and that "[n]o further
inquiry by the district court is . . . permitted").
Petitioner is mistaken. As the government itself concedes,
those decisions "speak only to the probative value"
of certain evidence, and nothing in them treats "the
government's reasonable belief alone ... as decisive or
conclusive." Resp. 6. Whatever else Ai-Adahi
and Al-Bihani might stand for, in other words, they
do not create a perse rule that the presence of any
particular evidence-let alone the specific mix of record
evidence presented here-requires any particular factual
finding or legal conclusion.
sure, the third case, Latif v. Obama, 677 F.3d 1175
(D.C. Cir. 2012), which affords a presumption of regularity
to an intelligence report despite the district court's
finding "a serious question as to whether [it]
accurately reflect[ed] [the subject's] words,"
presents a more formidable obstacle, id. at 1206
(Tatel, J., dissenting) (quoting Abdah (Latif) v.
Obama, No. 1:04-cv-01254, 2010 WL 3270761, at *9 (D.D.C.
July 21, 2010)). But this is not, as petitioner seems to
believe, because Latif requires courts to
"defer to the Executive's ... version of the
facts." Pet. 14. Indeed, as the government recognizes,
"Latif emphasized that the presumption
'implies nothing about the truth of the underlying
non-government source's statement' and 'does not
compel a determination that the record establishes what it is
offered to prove.'" Resp. 8 (quoting Latif,
677 F.3d at 1180-81). What the government leaves
unacknowledged, however, is the central problem with
Latif. it requires courts to presume the accuracy,
albeit not the truth, of documents "produced in the fog
of war by a clandestine method that we know almost nothing
about"-just as they presume the accuracy of, say,
ordinary "tax receipts"-and thus unjustifiably
shifts the burden of proof to the detainee. Latif,
677 F.3d at 1208 (Tatel, J., dissenting). Given that we know
so little about the "highly secretive process" for
producing such documents and that "we have no basis on
which to draw conclusions about the general reliability of
its output," id. at 1209, this court should, at
the appropriate time, reconsider whether these documents
merit the presumption that Latif affords them,
especially given the potentially grave consequences of
inaccuracy, see Al Mutairi v. United States, 644 F.Supp.2d
78, 84 (D.D.C. 2009) (noting that the government maintained
"for over three years" that a detainee
"manned an anti-aircraft weapon in Afghanistan based on
a typographical error in an interrogation report").
however, Latif s implications for petitioner's
case would also benefit from initial review by a panel of
this court and, likely, factfinding by the district court.
Although the record contains documents that I believe, for
the reasons I gave in Latif, merit no presumption of
accuracy, the district court might yet conclude "after
careful scrutiny" and after consulting corroborating
evidence present here but lacking in Latif that some
of those documents "are reliable," regardless of
any presumption. Latif, 677 F.3d at 1209 (Tatel, J.,
dissenting). Until the ...