United States v. Conde Rubio (D.D.C. June 15, 2010)

June 29, 2010

* United States v. Conde Rubio (D.D.C. June 15, 2010)

From an FBI (Washington Field Office) press release:

A former high-ranking FARC 1st Front member and logistical network commander, Nancy Conde Rubio, who had pleaded guilty to providing material support to the FARC on March 17, 2010, was sentenced today to 138 months’ incarceration by the Honorable Royce C. Lamberth, Chief Judge of the U.S. District Court for the District of Columbia, … Rubio, a 37-year-old Colombian national, was extradited from the Republic of Colombia in September 2009.

Rubio was sentenced for the crime of conspiracy to provide material support to a designated foreign terrorist organization, the Revolutionary Armed Forces of Colombia (in Spanish, the “Fuerzas Armadas Revolucionarias de Colombia,” commonly known as the “FARC”). FARC members obtained cash and weapons from drug dealers in exchange for FARC controlled cocaine, and then transferred funds to FARC collaborators who were members of the conspiracy so that they could purchase the materials and supplies needed to operate the 1st Front. Materials and supplies were transported to the FARC in airplanes via clandestine airstrips located in Colombia and elsewhere, in trucks, and in river boats navigating remote jungle rivers that traverse rural areas of Colombia and neighboring countries.

According to evidence introduced during the plea and sentencing hearings, Conde Rubio was the leader of the 1st Front’s logistical supply and communications network. To supply itself, the FARC’s 1st Front relied on a network of individuals with access to Colombia’s metropolitan and commercial centers, as well as to product markets in other countries. It also relied on individuals involved in the trafficking of narcotics, who had access to weapons, foreign currency, and other supplies, such as high technology communications equipment. The 1st Front commander and Conde Rubio directed other members of the logistical support network to obtain and transport materials and supplies. One primary method of communication used to operate the network was by satellite telephones obtained by Conde Rubio from the United States. Radio call centers also were used to patch through high frequency radio calls from FARC leaders operating in the jungle to co-conspirators using conventional telephones in urban areas, who were responsible for obtaining materials and supplies for the FARC guerillas. Because neither land line nor cell phone service was available in the jungle areas controlled by the 1st Front, satellite telephones and high frequency radios were the only methods of electronic communication available. The 1St Front’s communications network was dismantled when Rubio and other members of the logistical and material supply network charged in the Government’s 2007 Indictment were arrested in January and February 2008.

The FARC held three Americans hostage from February 13, 2003, until they were rescued in a dramatic Colombian military operation on July 2, 2008. Beginning in September 2006, the three Americans were held hostage by the FARC’s 1st Front. As alleged in the Indictment, the logistical supply and communications network established by Conde Rubio was used by other FARC leaders to maintain control of and to transport the American hostages while they were being held in captivity by the 1st Front. Because the Colombian law enforcement and military rescue operation was based on a ruse—convincing 1st Front leaders that they had been ordered to release the hostages to a humanitarian group—it was imperative that the 1st Front leaders not be able to utilize their communications network to verify that these orders were indeed issued by the FARC high command, rather than through the Colombian government’s military operation. After Conde Rubio’s arrest became known, the 1st Front leaders no longer had a reliable communications network with which to communicate with other FARC fronts and blocs, or their executive leadership and high command.

Other alleged 1st Front leaders were charged in the Indictment with hostage taking and related offenses, while other alleged members of the network—including narcotics traffickers and weapons dealers—were charged with providing material support or resources to the FARC….


United States v. Chapman, United States v. Metsos (S.D.N.Y. June 27, 2010) (espionage arrests)

June 28, 2010

* United States v. Chapman, United States v. Metsos (S.D.N.Y. June 27, 2010) (espionage arrests)

A number of individuals were arrested this past weekend on charges of serving as undeclared Russian agents. The press release appears below, and the two criminal complaints (forwarded by DOJ along with the press release) are attached.

Complaint # 2.pdf
Complaint # 1.pdf


Stigall on DPH in the context of the Civilian Response Corps

June 28, 2010

* forthcoming scholarship

The Thickest Grey: Assessing the Status of the Civilian Response Corps Under the Law of International Armed Conflict and the U.S. Approach to Targeting Civilians

Dan E. Stigall (DOJ – Office of International Affairs)
American University International Law Review, Vol. 25, pp. 101-130, 2010

The U.S. approach to armed conflict has recently undergone a profound shift as policymakers and military commanders have been forced to seek solutions to the seemingly intractable problems associated with developing countries and their relative instability. This focus on reconstruction and stabilization has led to the rise of “stability operations” – a relatively new addition to the military lexicon. Moreover, what is now called “stability operations” is a hybrid area that fuses a core military mission with a field of knowledge and experience that is dominated, at least in theory, by civilians. In that regard, there is another grey area surrounding the question of what conduct disqualifies a civilian from the protections and immunity traditionally given to civilians during armed conflict. The resultant lack of clarity can translate into significant legal consequences – both for civilians who are mobilized pursuant to such an effort and for U.S. policymakers who seek to criminalize the conduct of terrorists and insurgents.

This article explores the phenomenon of U.S. government civilians who engage in stability and reconstruction operations in conflict zones and their legal status under the law of armed conflict, paying specific attention to the corps of federal civilians being developed for this specific purpose: the Civilian Response Corps. Because the field of stability operations is a hybrid area that requires both civilian and military resources to attain a common objective, the objectives of each are conflated and, thus, necessarily colors the civilians engaging in such work with a belligerent hue. Ultimately, this article posits that the complex nature of civilian operations is such that neither the military nor civilians can be extricated from it and, as such, U.S. interests are best served by articulating a single, formal, and more restrictive interpretation of what it means to “directly participate in hostilities”.


forthcoming scholarship: Blum and Heymann on Targeted Killings

June 28, 2010

Law and Policy of Targeted Killings

Gabriella Blum and Philip Heymann (Harvard Law)

Harvard National Security Journal

From the conclusion:

Targeted killing operations display more clearly than any other counterterrorism tactic the tension between labeling terrorism a crime and labeling it an act of war. If a terror attack is simply a crime, counterterrorism forces would follow the same laws and rules as the Chicago or Miami police department do in fighting crime, where intentional killing could rarely if ever be lawful, other than where necessary in a situation immediately requiring the defense of self or others, or in making an arrest of an obviously dangerous felon. From the perspective of international peacetime relations, targeted killings face even greater legal constraints when targeting a terrorist outside the state’s jurisdiction.

If a terrorist plan is an act of war by the organization supporting it, any member of any such terrorist organization may be targeted anytime and anywhere plausibly considered “a battlefield,” without prior warning or attempt to capture.

Known or anticipated collateral damage to the innocent is generally prohibited in law enforcement, but is legitimate within the boundaries of proportionality in fighting wars. In fighting crime, the government’s obligation to protect its citizens applies to all citizens—criminals and innocents. In fighting wars, the government’s primary obligation is to its own citizens, with only limited concern for the well-being of its enemies.

Assuming, as we do, that states do have a right to defend themselves against acts of terrorism, targeted killings cannot be always illegal and immoral. But because terrorism is not a traditional war, nor a traditional crime, its non-traditional nature must affect the ethical and strategic considerations that inform targeted killings, the legal justification behind them, and the choice of targets and methods used to carry them out.

As we have shown, targeted killings may be justified even without declaring an all-out “war” on terrorism. A war paradigm is overbroad in the sense that it allows the targeting of any member of a terrorist organization. For the United States, it has had no geographical limits. When any suspected member of a hostile terrorist organization—regardless of function, role, or degree of contribution to the terrorist effort—might be targeted anywhere around the world without any due process guarantees or monitoring procedures, targeted killings run grave risks of doing both short-term and lasting harm. In contrast, a peacetime paradigm that enumerates specific exceptions for the use of force in self-defense is more legitimate, more narrowly tailored to the situation, offers potentially greater guarantees for the rule of law. It is, however, harder to justify targeted killing operations under a law enforcement paradigm when the tactic is used as a continuous and systematic practice rather than as an exceptional measure. Justifying targeted killings under a law enforcement paradigm also threatens to erode the international rules that govern peacetime international relations as well as the human rights guarantees that governments owe their own citizens.

Whichever paradigm we choose as out starting point, greater limitations than those offered by the Parks memorandum or that are currently operating in the American targeted killings program should be adopted. The limits set by the Israeli Supreme Court—ironically, within the paradigm of wartime operations—are a good place to start.

First, the tactic should not be used unilaterally by the endangered state if the host country of the terrorists is willing and able to act on its own to arrest or disable in a timely manner the source of the threat. Host country cooperation in capture and extradition must be the first alternative considered. That is, targeted killings must only be carried out as an extraordinary measure, where the alternative of capture or arrest is unfeasible.

Second, only those who are actively and directly involved in terrorist activities are legitimate targets; not every member of a terrorist organization is or should be.

Third, the fact that terrorists do not wear uniforms should not give them an unfair legal advantage over soldiers in uniform in the sense of immunity from deliberate attack. But their lack of uniform does raise legitimate concerns about the ability to ensure the correct identification of the target, in terms of personal identity as well as specific culpability. Any targeted killing operation must therefore include mechanisms in its planning and execution phases that would ensure an accurate identification. Such mechanisms need not involve external judicial review; judges are neither well situated nor do they have the requisite expertise to authorize or reject an operation on the basis of intelligence reports. Rather, the system should be based on verified and verifiable intelligence data from different and independent sources, careful monitoring, and safety mechanisms that would allow aborting the mission in case of doubt.

The concern about collateral damage requires specific attention. Unlike ordinary battlefield strikes, the fact that the targeting forces have control over the time, means, and methods of strike mandates that a heightened degree of care should be exercised to choose an occasion and means that will minimize collateral harm to uninvolved individuals, especially where the operations are carried out outside an immediate conflict zone. In those cases, we believe that where innocent civilians suffer collateral damage, those injured should generally be compensated.

Finally, the aggression of the targeted killing tactic mandates its measured use in only the most urgent and necessary of cases. The government’s interest should be to tame violence, not exacerbate it. Where alternatives exist, they should be pursued, not just as a matter of law but also as a matter of sound policy.

This article appears as a chapter in Gabriella Blum & Philip Heymann, Laws, Outlaws, and Terrorists: Lessons from the War on Terrorism (MIT Press, forthcoming Sept. 2010).


forthcoming scholarship: Daly on Deep Packet Inspection

June 25, 2010

The Legality of Deep Packet Inspection

Angela Daly (European University Institute)

Deep packet inspection is a technology which enables the examination of the content of information packets being sent over the Internet. The Internet was originally set up using “end-to-end connectivity” as part of its design, allowing nodes of the network to send packets to all other nodes of the network, without requiring intermediate network elements to maintain status information about the transmission. In this way, the Internet was created as a “dumb” network, with “intelligent” devices (such as personal computers) at the end or “last mile” of the network. The dumb network does not interfere with an application’s operation, nor is it sensitive to the needs of an application, and as such it treats all information sent over it as (more or less) equal. Yet, deep packet inspection allows the examination of packets at places on the network which are not endpoints, In practice, this permits entities such as Internet service providers (ISPs) or governments to observe the content of the information being sent, and perhaps even manipulate it. Indeed, the existence and implementation of deep packet inspection may challenge profoundly the egalitarian and open character of the Internet.

This paper will firstly elaborate on what deep packet inspection is and how it works from a technological perspective, before going on to examine how it is being used in practice by governments and corporations. Legal problems have already been created by the use of deep packet inspection, which involve fundamental rights (especially of Internet users), such as freedom of expression and privacy, as well as more economic concerns, such as competition and copyright. These issues will be considered, and an assessment of the conformity of the use of deep packet inspection with law will be made. There will be a concentration on the use of deep packet inspection in European and North American jurisdictions, where it has already provoked debate, particularly in the context of discussions on net neutrality. This paper will also incorporate a more fundamental assessment of the values that are desirable for the Internet to respect and exhibit (such as openness, equality and neutrality), before concluding with the formulation of a legal and regulatory response to the use of this technology, in accordance with these values.


forthcoming scholarship: Nachbar on “Rule of Law” in military doctrine and operations

June 25, 2010

“Defining the Rule of Law Problem”

The Green Bag, Vol. 6, No. 2D, p. 303, 2009
University of Virginia Public Law and Legal Theory Working Paper Series Working Paper No. 125

THOMAS B. NACHBAR, University of Virginia School of Law
Email: tnachbar

This article is based on a chapter written for The Rule of Law Handbook: A Practitioner’s Guide, a handbook used as a text at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia, and as a reference for judge advocates worldwide.

The paper considers the recent explosion in legal development activity undertaken by the U.S. government in the context of the military interventions in Afghanistan and Iraq. Those programs, frequently lumped together under the title ‘rule of law,’ have in turn led to a flurry of activity to define the ‘rule of law’ in order to provide some guidance to those programs.

The paper highlights the need to define the purpose of the definition before seeking a definition and discusses how recently adopted definitions of the rule of law in U.S. military doctrine necessarily affect not only ‘rule of law’ programs but also the full spectrum of operations undertaken by U.S. forces.


forthcoming scholarship: Newton on reprisals

June 25, 2010

Reconsidering Reprisals

Michael A. Newton (Vanderbilt)

Duke J. Comp. & Int’l L. (forthcoming)

The prohibition on the use of reprisals is widely regarded as one of the most sacrosanct statements of the jus in bello applicable to the conduct of modern hostilities. The textual formulations are stark and subject to no derogations. Supporters of the bright line ban describe it as a vital “bulwark against barbarity.” In the words of the International Committee of the Red Cross, the prohibition is “absolute”, despite the fact that the declarations of key states indicate residual ambiguity over the scope of permissible reprisals, particularly in the context of non-international armed conflicts. Reprisals are a recurring feature of state practice, though conducted under varying legal rubrics and shifting rationales. Reasonable reprisals grounded on an empirical assessment of their deterrent value or framed as appropriate punishment for prior acts of terror may be the most morally acceptable and humane strategy for serving a strategic imperative of civilized society. Limited reprisals may in practice be essential to counteract the growing threat of transnational terrorists. Reasonable reprisals may represent the best long term way to erode support for those who would mobilize terrorist actors to willfully ignore the rules protecting innocent civilians thereby violating the most basic human rights of their victims. This is especially true if nations create clear lines of agreed legal authorities supported by independent adjudication of the motives and methods employed in such reprisals. Peace-loving states should seek common ground to enhance efforts to protect innocent citizens from the effects of terrorist violence. Thoughtful and multilateral reassessment of the lawful scope and rationale for reasonable reprisals is overdue.


forthcoming scholarship: Odom on the “Impeccable Incident” and its implications for US and PRC perspectives on international law

June 25, 2010

* Forthcoming Scholarship

The True `Lies’ of the Impeccable Incident: What Really Happened, Who Disregarded International Law, and Why Every Nation (Outside of China) Should Be Concerned

Michigan State Journal of International Law, Vol.18:3, May 2010

Commander Jonathan G. Odom, JAGC, U.S. Navy, jonathan.odom

Many in the international law and foreign affairs communities are concerned about an incident which occurred on March 8, 2009, in the South China Sea, involving the United States Naval Ship Impeccable and five vessels from the People’s Republic of China (“PRC”). Only a small percentage of those communities, however, are familiar with the March 8th incident in substantial detail, both factually and legally.

Although the episode was reported by the news media, such reporting was merely the “first rough draft of history.” Therefore, much like how a courtroom trial provides a community with an opportunity to step back and dispassionately examine an alleged crime or civil wrong with deliberate consideration, so too is there value in stepping back and reflecting upon this maritime incident in greater depth on its one-year anniversary. Effective reflection on the incident can occur only when detached observers have an opportunity to weigh the actual facts of that day, apply international law to those facts, and reach a well-considered legal judgment-in essence, a “verdict”-on the incident. To reach such an informal verdict, these observers must be presented with detailed perspectives from the two nations involved. This Article provides such a detailed perspective from one of the two nations-in this case, the United States. The discussion focuses on and synthesizes with meticulous detail the official statements and comments and physical documentation (i.e., video and photographs) released by the United States and PRC governments.

Part I of this Article focuses on the facts of the March 8th incident. This includes a factual account of the incident, as provided by the U.S. government one day after the incident actually occurred. The next section introduces the official public statements made by the PRC government about the incident. Then, perhaps most importantly, the discussion of facts identifies objective evidence, which might corroborate or refute the respective factual accounts. Juxtaposing the two governments’ statements on the facts of the March 8th incident with this objective evidence proves quite telling for which side’s account is closer to the truth.

Part II of this Article focuses on the applicable law of the March 8th incident. This legal discussion will examine two bodies of international law: first the international rules of navigational safety, and second, the international law of the sea. Viewing the facts of the incident through the prism of these two distinct, but related bodies of international law will show which nation operated in accordance with its legal rights and responsibilities, and which nation disregarded international law in its actions.

Ultimately, this Article reaches several conclusions. First, the U.S. government was candid, clear, and consistent in its factual account of the March 8th incident. Washington provided detailed corroboration to the international community; in stark contrast, Beijing was cryptic at best, and possibly misleading. Second, the actions of the U.S. Nval vessel during the March 8th incident were consistent with international law; meanwhile, the collection of PRC vessels involved in the incident acted inconsistently with that same body of law. Third, the Article concludes that, since neither the facts of the incident nor the applicable law support the actions and position of the PRC in the March 8 incident, Beijing’s diplomacy and media blitz in the aftermath of the event demonstrate an effort to unilaterally transform international law.

These conclusions raise troubling questions about China’s ability to integrate successfully into the community of responsible nations.

The True Lies of the Impeccable Incident (Odom, MSUJIL, May 2010).pdf


United States v. Shahzad (S.D.N.Y. June 21, 2010) (plea agreement letter)

June 23, 2010

* United States v. Shahzad (S.D.N.Y. June 21, 2010) (plea agreement letter)

The plea agreement letter is attached. Press release appears below:

WASHINGTON – Faisal Shahzad pleaded guilty today in Manhattan federal court before U.S. District Judge Miriam Goldman Cedarbaum to all counts of the 10-count indictment against him, for allegedly driving a car bomb into Times Square on the evening of May 1, 2010, the Justice Department announced.

Shahzad, 30, a naturalized U.S. citizen born in Pakistan, was taken into custody at John F. Kennedy International Airport (JFK Airport) on May 3, 2010, after he was identified by the Department of Homeland Security’s U.S. Customs and Border Protection while attempting to leave the United States on a commercial flight to Dubai. Shahzad was then charged in a five-count criminal complaint. On May 18, 2010, he was presented in Manhattan federal court before U.S. Magistrate Judge James C. Francis IV. Last week, on June 17, 2010, Shahzad was indicted in the Southern District of New York.

“Faisal Shahzad plotted and launched an attack that could have led to serious loss of life, and today the American criminal justice system ensured that he will pay the price for his actions,” Attorney General Eric Holder said. “We will not rest in bringing to justice terrorists who seek to harm the American people, and we will use every tool available to the government to do so.”

“This investigation included a combination of traditional law enforcement techniques and intelligence-based authorities, with men and women from a number of agencies working side-by-side in support of a common goal,” said FBI Director Robert S. Mueller.

“Today, less than two months after his arrest, Faisal Shahzad pleaded guilty to 10 felony charges for attempting to carry out a plot to bomb the heart of New York City,” said Preet Bharara, the U.S. Attorney for the Southern District of New York. “In admitting his guilt today, Shahzad reminded us of the uniquely serious threat that our city faces every single day. I express my gratitude and admiration for the agents and detectives of the FBI and New York Police Department (NYPD) who dedicate their lives to the daily fight to keep this city, its residents and its visitors, safe from harm.”

U.S. Attorney Bharara added that there is no plea agreement between the government and Shahzad, and that the investigation is continuing. Shahzad is scheduled to be sentenced by Judge Cedarbaum on Oct. 5, 2010, at 10 a.m.

According to the indictment to which Shahzad pleaded guilty, statements made during today’s proceeding, and the criminal complaint filed in Manhattan federal court:

In December 2009, Shahzad received explosives training in Waziristan, Pakistan, from explosive trainers affiliated with Tehrik-e-Taliban, a militant extremist group based in Pakistan. On Feb. 25, 2010, Shahzad received approximately $5,000 in cash in Massachusetts sent from a co-conspirator (CC-1) in Pakistan whom Shahzad understood worked for Tehrik-e-Taliban. Approximately six weeks later, on April 10, 2010, Shahzad received an additional $7,000 in cash in Ronkonkoma, N.Y., which was also sent at CC-1’s direction.

On March 15, 2010, Shahzad purchased a semi-automatic 9 millimeter Kel-Tec rifle in Connecticut. This rifle was found, loaded, in Shahzad’s car on the day of his arrest.

In April 2010, Shahzad contacted the seller of a Nissan Pathfinder after seeing an advertisement posted on a website. Thereafter, on April 24, 2010, Shahzad and the seller of the Pathfinder agreed to meet in a supermarket parking lot in Connecticut, where Shahzad paid the seller $1,300 for the Pathfinder. In April 2010, Shahzad also purchased components for the improvised explosive and incendiary devices that he loaded into the Pathfinder on May 1, 2010.

On May 1, 2010, Shahzad drove the Pathfinder, loaded with the improvised explosive and incendiary devices, to Manhattan and parked the Pathfinder in Times Square in the vicinity of 45th Street and Seventh Avenue. After parking the Pathfinder, Shahzad attempted to begin the detonation process of the improvised explosive and incendiary devices. Thereafter, Shahzad abandoned the Pathfinder and returned to his residence in Connecticut.

On May 3, 2010, Shahzad drove from Connecticut to JFK Airport as he attempted to flee to Dubai. He was arrested later that same day at JFK Airport. After his arrest, Shahzad admitted that he had recently received bomb-making training in Pakistan. He also admitted that he had brought the Pathfinder to Times Square and attempted to detonate it.

The indictment filed against Shahzad last week charges him with 10 offenses which carry the following potential penalties:

Count Charge Maximum Prison Term
1 Attempted use of a weapon of mass destruction Life
2 Conspiracy to use a weapon of mass destruction Life
3 Possession of a firearm during and in relation to a conspiracy to use a weapon of mass destruction Life*

4 Attempted act of terrorism transcending national boundaries Life

5 Conspiracy to commit an act of terrorism transcending national boundaries Life
6 Attempted use of a destructive device during and in relation to a conspiracy to commit an act of terrorism transcending national boundaries Life*
7 Transportation of an explosive 10 years
8 Conspiracy to transport an explosive 10 years
9 Attempted destruction of property by fire and explosive 20 years*
10 Conspiracy to destroy property by fire and explosive 20 years*

* Counts Three, Nine, and Ten each carry a mandatory minimum penalty of five years in prison. Because Shahzad pled guilty to Count Three, Count Six carries a mandatory minimum penalty of life in prison.

FBI New York Acting Assistant Director-in-Charge George Venizelos stated: “Today’s guilty plea is right on the mark. Faisal Shahzad was poised and ready to terrorize the citizens and visitors of New York City, and threaten the security of our nation. He set out to act on radical ideologies, but his evil plans were thwarted. The vigilance on behalf of ordinary citizens who alerted law enforcement of suspicious activity, and strength and swift actions taken by the FBI’s Joint Terrorism Task Force (JTTF), diverted this intended attack on our homeland. It’s the hard work of the FBI team along with our partnerships with law enforcement and the intelligence community that enables us to fight terrorism every day.”

Police Commissioner Raymond W. Kelly said, “The plea reflects outstanding and timely work by NYPD detectives and FBI agents in the immediate aftermath of the discovery of the car bomb in Times Square, as well as that of the accomplished team of prosecutors headed by United States Attorney Preet Bharara. We remain alert to and concerned by the threat of home grown terrorism aimed at New York City.”

The indictment was the result of the investigative efforts of the FBI’s Joint Terrorism Task Force (JTTF) in New York, Connecticut and Massachusetts, especially those JTTF members from the FBI and the New York City Police Department. U.S. Customs and Border Protection also made significant contributions to the case. Substantial assistance was also provided by the Justice Department’s National Security Division, as well as the U.S. Attorney’s Offices for the Districts of Connecticut and Massachusetts.

The prosecution is being handled by Assistant U.S. Attorneys Brendan R. McGuire, Randall W. Jackson, John P. Cronan and Jeffrey A. Brown of the Terrorism and International Narcotics Unit in the U.S. Attorney’s Office for the Southern District of New York.

Shahzad, Faisal – Government’s Letter Regarding Maximum Penalties.pdf


Barhoumi v. Obama (D.C. Cir. June 22, 2010) (affirming denial of habeas)

June 23, 2010

* Barhoumi v. Obama (D.C. Cir. June 22, 2010) (affirming denial of habeas)

A D.C. Circuit panel (Tatel, joined by Ginsburg and Kavanaugh) has affirmed denial of habeas relief to GTMO detainee Sufyian Barhoumi. The opinion is posted here. Key aspects of the opinion include:

– affirmation that hearsay is admissible in the habeas proceedings

– affirmation that the preponderance standard is constitutionally permissible

– Barhoumi on appeal did not contest the detention standard advanced by the government, nor the claim that the group in question – Abu Zubaydah’s “militia”—constituted an “associated force” within the meaning of that standard. The question was whether the district court erred in finding that the government had sufficient evidence that Barhoumi was “part of” that group.

– Whether a person’s alleged conduct is of the kind adequate to justify a showing of membership is a question of law (e.g., whether training camp attendance or guesthouse residence = proof of membership); whether the evidence suffices to prove the particular person actually engaged in that conduct is, of course, a question of fact.

– Barhoumi argued for adoption of the Hamlily standard, developed by Judge Bates in 2009, pursuant to which the government should have to show that a person was part of a command structure taking orders/directions from a group, in order to prove membership in that group. The panel responded that “this court has yet to delineate the precise contours of the ‘part of’ inquiry—a legal issue,” but also that “we need not do so here because we conclude that even under the test espoused by Barhoumi, the district court committed no error” in finding that Barhoumi was part of Zubaydah’s militia.

– The evidence showed that Barhoumi had trained at the Khaldan camp, that Khaldan was a Zubaydah-run facility, and that Barhoumi was captured alongside Zubaydah at a guesthouse in Pakistan. The panel described as particularly important a diary belonging to a member of Zubaydah’s organization that identified Barhoumi (under an alias) as a permanent member of Zubaydah’s militia, and indicated that Barhoumi was providing explosives training to others in the group with an eye toward fighting against US forces in Afghanistan.