Rehearing Petition in Obaydullah

Obaydullah, a Guantanamo detainee, today asked the D.C. Circuit to take up his case once more. A three judge panel of that court earlier affirmed the denial of Obaydullah's petition for a writ of habeas corpus.  But the panel's ruling was in error, as the petitioner's lawyers argue both in this release and in this petition for panel re-hearing and/or suggestion for re-hearing en banc.  At the heart of the petitioner's requests---to both the panel and the full court---is a challenge to the presumption of accuracy to which the government's evidence is now entitled under the D.C. Circuit's Latif decision.   (As is well known, the petitioner in that case, Adnan Latif, died last week at Guantanamo.)  Obaydullah's position, in short, is that the panel failed to address the district court's application of Latif, in particular the petitioner's rebuttal of the presumption of accuracy; and that, in any case, the Latif presumption was wrong and should be re-visited by the court of appeals en banc.   Here's how his filing begins: 

I.  Petition for Panel Rehearing Petitioner and appellant Obaidullah asked this Court to decide whether the district court erred by presuming the accuracy of intelligence reports on which the district court relied in allowing the respondents and appellees (“the Government”) to detain Obaidullah indefinitely at Guantanamo Bay, Cuba.  See [Corrected] Brief of Appellant (“Pet.Br.”) 38-41; Reply Brief of Appellant (“Pet.Rep.Br.”) 32-33.  The Court’s August 3, 2012 opinion does not mention or decide this issue.  See FRAP 40(a)(2) (“The petition [for panel rehearing] must state with particularity each point of law or fact that the petitioner believes the court has overlooked . . .”). An opinion by another panel approving such presumptions in Guantanamo cases did not relieve the Court of its obligation to address the issue here.  Latif v. Obama, 677 F.3d 1175, 1178-85 (D.C. Cir.), cert. den., 132 S. Ct. 2741 (2012).  The presumption applied in Latif is a rebuttable one and Obaidullah rebutted any presumption of accuracy by identifying a material contradiction between statements in two intelligence reports whose accuracy the district court presumed.  Pet.Rep.Br. 32-33.  The panel should grant rehearing to address this issue.  II. Petition for En Banc Rehearing  Applying even a rebuttable presumption that statements in Government intelligence reports are accurate conflicts with a decision of the United States Supreme Court and decisions of this Court.  See, e.g., Boumediene v. Bush, 553 U.S. 723, 779 (2008) (detainee is entitled to a meaningful opportunity to challenge his detention); Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010) (requiring district court to assess reliability and probative value of Government’s evidence); Parhat v. Gates, 532 F.3d 834, 849 (D.C. Cir. 2008) (rejecting notion that “whatever the government says must be treated as true”). Therefore, consideration by the full Court is necessary to secure and maintain uniformity of the Court’s decisions.  SeeFRAP 35(a)(1), (b)(1)(A).  In addition, en banc rehearing is needed because the proceeding involves a question of exceptional importance, namely, whether Government intelligence documents – often “produced in the fog of war by a clandestine method that we know almost nothing about” – are entitled to a presumption of accuracy.  Latif, 677 F.3d at 1208 (Tatel, J., dissenting); see FRAP 35(a)(2), (b)(1)(B). Specifically, the Court should grant en banc rehearing to decide whether the presumption of accuracy approved in Latif violates what this Court has repeatedly recognized as a detainee’s right to have a court assess – not assume – the reliability of the Government’s evidence.