Saturday, December 3, 2011

Latif Resources 2011
Benjamin Wittes

Posted by Olivia LaRosa
Any serious effort to analyze this case must be cautious. While I have strong feelings about the decision, they are tentative ones. The number and scope of redactions in critical places is simpy too high to make confident assertions about the merits of the opinion. I am relatively certain that I agree with Judge Tatel. But as I said in an earlier post, this judgment may be influenced to some degree by the fact that Judge Tatel–either intentionally or by luck–did a far better job than did Judge Brown in writing his opinion in such a manner that the government’s redactions would not dismember it. The result is that his argument reads more cohesively–though there are, to be sure, still many pages that are impossible to parse. 
Here is my best effort to unpack the dispute: 
Judge Brown, writing for herself and Judge Karen LeCraft Henderson, declares that Judge Kennedy’s opinion has “three errors [that] require us to vacate that decision. 
First, the court failed to accord an official government record a presumption of regularity. 
Second, the district court failed to determine Latif’s credibility even though the court relied on his declaration to discredit the Government’s key evidence. See Al-Adahi v. Obama, 613 F.3d 1102, 1110 (D.C. Cir. 2010). 
Third, the court’s unduly atomized approach to the evidence is one we have rejected. . . . We remand so the district court can evaluate Latif’s credibility as needed in light of the totality of the evidence, including newly available evidence.” (Judge Henderson also writes separately to say that she would not bother with a remand but would reverse Judge Kennedy outright.)

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