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

* 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.

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