By David K. Shipler
A strange aura of infallibility still surrounds the gatherers of secrets. Oddly, the false premise of the Iraq war seems not to have damaged public trust in the spy, the interrogator, and the computerized dragnet that captures and sifts petabytes of data. Whatever is hidden, and is ferreted out, carries a presumption of accuracy so seductive as to have beguiled a couple of federal judges, who have issued an unprecedented ruling that unverified intelligence reports deserve unquestioned acceptance. Only the Supreme Court has the power to break this spell, which it will consider doing tomorrow. [Update: The Court on June 11 decided not to review any of the seven habeas corpus decisions by the D.C. Circuit Court of Appeals, letting stand the pernicious opinion in Latif, described below.]
The espionage agencies’ reputations have been bolstered by the spectacular intelligence coups that have led to Osama bin Laden and, most recently, to the foiling of an aircraft bombing plot by a double agent who infiltrated al-Qaeda in the Arabian Peninsula to pose as the bomber himself. Nevertheless, scattered among the dramatic successes are untold numbers of dubious reports, false positives, half-truths, and outright absurdities. Such is the nature of intelligence work, according to those in the business.
“Intelligence is not evidence, and the intelligence community and most thoughtful folks would confess to that,” said Robert Earle, who served as counsel to the Director of National Intelligence during the Bush administration. “It’s not meant to be evidence, the community was not created to produce evidence.” Yet it has been elevated to that status by a pernicious appeals court opinion.
You might think that after the most visible and costly error—the certainty that Saddam Hussein had “weapons of mass destruction” in 2003—consumers of intelligence would be skeptical: If the agencies could get that one wrong--or, as seems likely, the political appointees at the top could cook the analysts' intelligence to justify their policies--how reliable can they be in lesser matters, including an untested assertion here and there that keeps a man locked up in Guantanamo as a terrorist? That is precisely the question that was answered reflexively last summer by two conservative members of a three-judge panel in the Court of Appeals for the D.C. Circuit, who decided that raw intelligence reports cobbled together in the chaos of combat should be given a “presumption of regularity” normally accorded to government records that are transparent and verifiable, such as tax receipts, court dockets, or judicial transcripts.
Tomorrow the Supreme Court is scheduled to decide whether to hear an appeal from this ruling, which is about much more than one man’s fate. The Court’s decision is expected to be announced next week.
The man is Adnan Farhan Abdul Latif, a Yemeni who either went to Afghanistan and then Pakistan for medical treatment, as his lawyers claim, or who received military training and fought with the Taliban, as the government insists. Latif, who resides in the Guantanamo prison, brought a habeas corpus petition—as authorized by the Supreme Court in its 2008 decision in Boumediene v. Bush—to challenge his detention. The Court had ruled that Guantanamo prisoners had the right to a “meaningful opportunity” under the venerable habeas principle to summon their jailers to justify their incarceration, even when they had not been charged or tried.
Since late 2009, all 26 detainees who have availed themselves of Boumediene to petition for their release have lost in the lower courts. In practice, habeas has proved meaningless. In general, the federal district court judges examined the intelligence evidence and found it credible. In the Latif case, however, the judge found the report “not sufficiently reliable to support a finding by a preponderance of the evidence that Latif was recruited by an al-Qaeda member or trained and fought with the Taliban.” The judge raised “a serious question” about whether Latif’s statements were accurately represented in the report, noted that no corroboration existed, and ruled the detention unlawful. He was reversed 2-1 by D.C. Circuit Judges Janice Rogers Brown and Karen Lecraft Henderson, who stampeded over the district judge’s meticulous fact-finding and invented a broad new presumption of accuracy for intelligence reports.
In a deft dissent, Judge David Tatel demolished their argument. While appeals courts give deference to a district court’s finding that government evidence is reliable, he observed, the majority here, “now facing a finding that such evidence is unreliable, moves the goal posts.” In a heavily censored opinion, he noted that intelligence reports “contain multiple layers of hearsay, depend on translators of unknown quality,” and “are prone to significant errors.” This report “was produced in the fog of war by a clandestine method that we know almost nothing about.”
A group of former intelligence officers vigorously agreed. In an amicus brief urging the Supreme Court to hear the appeal, they wrote: “Intelligence reports of the type involved here, and the processes and circumstances of collecting the information they contain, bear no resemblance to the types of documents and processes to which a presumption of regularity plausibly attaches.” They continued: “Early-stage reports are only the first step of an intelligence process in which they are subject to further analysis, comparison with other intelligence, and verification in order to ascertain their reliability. No responsible intelligence officer would presume the reliablility of initial intelligence reports that had not yet undergone such testing. There is no reason why a court should do so.”
As usual in such matters, the Obama administration is on the wrong side, arguing that the Court should not take the appeal of Latif or any other Guantanamo prisoner who has lost his habeas petition.