nationalsecuritylaw with link this time FW: Almerfedi v. Obama (D.C. Cir. June 10, 2011) (reversing grant of habeas to GTMO detainee)

June 10, 2011

Ah, the link to the opinion would be helpful. Here.

From: Robert Chesney [mailto:rchesney@law.utexas.edu]
Sent: Friday, June 10, 2011 10:43 AM
To: nationalsecuritylaw@utlists.utexas.edu
Subject: [nationalsecuritylaw] Almerfedi v. Obama (D.C. Cir. June 10, 2011) (reversing grant of habeas to GTMO detainee)

* Almerfedi v. Obama (D.C. Circ. June 10, 2011) (reversing grant of habeas to GTMO detainee)

In an opinion by Judge Silberman (joined by Judge Kavanaugh, with Judge Rogers concurring in part and concurring in the judgment), the D.C. Circuit has reversed a grant of habeas to a GTMO detainee and concluded that as a matter of law the government carried its burden of proof. A few points of interest:

– Judge Silberman concludes that whether the government satisfied its burden below is a mixed question of law and fact, with the specific factual determinations subject to clear error review but the ultimate determination of detainability being a legal question subject to de novo review

– Judge Silberman offers the following examples of evidence that would suffice to justify detention:

As an example, if the only evidence the government offered in a particular case was that a petitioner had been apprehended with an AK-47 in rural Afghanistan – which would be at least probative – it would not be sufficient to establish a basis for detention. Possession of a rifle is commonplace in Afghanistan, and therefore does not meaningfully distinguish an al Qaeda associate from an innocent civilian. But the government could satisfy its burden by showing that an individual was captured carrying an AK-47 on a route typically used by al Qaeda fighters. Cf. Al-Odah v. United States, 611 F.3d 8, 11, 16 (D.C. Cir. 2010) (significant that individual captured near Tora Bora in late 2001). And, of course, that a petitioner trained at an al Qaeda camp or stayed at an al Qaeda guesthouse “overwhelmingly” would carry the government’s burden. See Al-Bihani, 590 F.3d at 873 n.2. (slip op. at 10 n.7)

– turning to the evidence against Almerfedi, Judge Silberman concluded that it was enough that Almerfedi (i) had stayed at the Jama’at Tablighi organization’s guesthouse in Pakistan, (ii) traveled in Iran in ways that did not seem consistent with his professed desire to move to Europe, and (ii) had $2000 of unexplained funds on his person when captured. (slip op at 10-11) Judge Silberman notes that the district court did not credit Almerfedi’s explanation for these events, but the district court erred in not holding that conclusion against Almerfedi.

– Judge Silberman concludes that the district judge also erred in dismissing as unreliable the statements of another GTMO detainee to whom Almerfedi allegedly made certain inculpatory statements.

Judge Rogers, in her concurrence, agrees that the government met its burden of proof based on the three factors cited above (his stay in Pakistan, his travel in Iran, and the $2000, plus evidence that al Qaeda did have a guesthouse in Iran). She writes separately, however, because she does not agree with the majority’s conclusion that it was error for the district court to reject as unreliable the statements from the other GTMO detainee repeating what Almerfedi allegedly had said to him. In brief, her objection is that the Circuit should use a clear error standard on review, not something more akin to de novo review.


nationalsecuritylaw Almerfedi v. Obama (D.C. Cir. June 10, 2011) (reversing grant of habeas to GTMO detainee)

June 10, 2011

* Almerfedi v. Obama (D.C. Circ. June 10, 2011) (reversing grant of habeas to GTMO detainee)

In an opinion by Judge Silberman (joined by Judge Kavanaugh, with Judge Rogers concurring in part and concurring in the judgment), the D.C. Circuit has reversed a grant of habeas to a GTMO detainee and concluded that as a matter of law the government carried its burden of proof. A few points of interest:

– Judge Silberman concludes that whether the government satisfied its burden below is a mixed question of law and fact, with the specific factual determinations subject to clear error review but the ultimate determination of detainability being a legal question subject to de novo review

– Judge Silberman offers the following examples of evidence that would suffice to justify detention:

As an example, if the only evidence the government offered in a particular case was that a petitioner had been apprehended with an AK-47 in rural Afghanistan – which would be at least probative – it would not be sufficient to establish a basis for detention. Possession of a rifle is commonplace in Afghanistan, and therefore does not meaningfully distinguish an al Qaeda associate from an innocent civilian. But the government could satisfy its burden by showing that an individual was captured carrying an AK-47 on a route typically used by al Qaeda fighters. Cf. Al-Odah v. United States, 611 F.3d 8, 11, 16 (D.C. Cir. 2010) (significant that individual captured near Tora Bora in late 2001). And, of course, that a petitioner trained at an al Qaeda camp or stayed at an al Qaeda guesthouse “overwhelmingly” would carry the government’s burden. See Al-Bihani, 590 F.3d at 873 n.2. (slip op. at 10 n.7)

– turning to the evidence against Almerfedi, Judge Silberman concluded that it was enough that Almerfedi (i) had stayed at the Jama’at Tablighi organization’s guesthouse in Pakistan, (ii) traveled in Iran in ways that did not seem consistent with his professed desire to move to Europe, and (ii) had $2000 of unexplained funds on his person when captured. (slip op at 10-11) Judge Silberman notes that the district court did not credit Almerfedi’s explanation for these events, but the district court erred in not holding that conclusion against Almerfedi.

– Judge Silberman concludes that the district judge also erred in dismissing as unreliable the statements of another GTMO detainee to whom Almerfedi allegedly made certain inculpatory statements.

Judge Rogers, in her concurrence, agrees that the government met its burden of proof based on the three factors cited above (his stay in Pakistan, his travel in Iran, and the $2000, plus evidence that al Qaeda did have a guesthouse in Iran). She writes separately, however, because she does not agree with the majority’s conclusion that it was error for the district court to reject as unreliable the statements from the other GTMO detainee repeating what Almerfedi allegedly had said to him. In brief, her objection is that the Circuit should use a clear error standard on review, not something more akin to de novo review.


nationalsecuritylaw upcoming event: HPCR live web seminar: “Beyond the attack on Bin Laden: Implications for Regulating Future Military Operations”

June 10, 2011

* upcoming event: HPCR live web seminar: "Beyond the attack on Bin Laden: Implications for Regulating Future Military Operations" (Wed. June 15)

This event looks likely to be quite good. Panelists include Shuja Nawaz (South Asia Center at the Atlantic Council), Mary Ellen O’Connell (Notre Dame), Vijay Padmanabhan (Cardozo/Vanderbilt), and Mike Schmitt (Durham). Details here: http://www.hpcrresearch.org/events/live-seminar-34-beyond-attack-bin-laden-implications-regulating-future-military-operations.


nationalsecuritylaw United States v. Rana; United States v. Love; United States v. Boyd

June 10, 2011

1. United States v. Rana (S.D. Ill. June 9, 2011)

A Chicago jury today convicted Tahawwur Rana of conspiracy to provide material support to a plot to attack a Danish newspaper and one count of actually providing material support to Lashkar e-Taiba. He was acquitted on the charge of conspiring to provide material support in connection with the Mumbai massacre. More details here.

2. United States v. Love (S.D. Cal. June 6, 2011)

A Chicago jury earlier this week convicted Donny Love Sr. on a WMD charge (remember, the WMD statute attaches to just about any explosive device), among other things, in connection with a bombing at the San Diego federal courthouse in 2008. More details from the press release:

SAN DIEGO – Donny Love Sr., was found guilty by a federal jury earlier today in U.S. District Court in San Diego of the use of a weapon of mass destruction and other charges, arising from the bombing of the Edward J. Schwartz Federal Courthouse in San Diego on May 4, 2008, announced U.S. Attorney Laura E. Duffy for the Southern District of California.

According to evidence presented at trial, Love was the person who instructed Rachelle Lynette Carlock and Ella Louise Sanders to purchase explosive powder and to steal bomb-making materials. Love and others constructed pipe bombs at Love’s residence in Menifee, Calif., and then Love instructed and caused other persons to test pipe bombs by exploding and attempting to explode the devices. According to testimony presented at trial, on the night of the courthouse bombing, Carlock and Eric Reginald Robinson drove from Love’s residence to San Diego with a backpack containing three pipe bombs, and Carlock then detonated the bombs at the front doors of the federal courthouse.

The evidence further showed that Love was the mastermind and driving force behind the federal courthouse bombing. At the time of the bombing, he was in dire financial straits and faced significant jail time arising from two pending state criminal cases. The evidence showed that he directed the May 4, 2008, bombing for the purpose of obtaining reward money and a break on his state charges by providing information about the bombing to law enforcement. The success of this fraudulent scheme required that he provide false and misleading information about the bombing and induce others to do the same in order to conceal his own involvement and collect a reward and other benefits from the government.

Carlock, Sanders and Robinson have each previously pleaded guilty in federal court in San Diego for their participation in the bombing plot. Robinson and Sanders pleaded guilty in 2008 to one count of possession and use of a destructive device to commit a crime of violence, to wit: conspiracy to use a weapon of mass destruction, in violation of Title 18, United States Code, Section 924(c). In September 2009, Carlock pleaded guilty to the same charge. All the defendants are pending sentencing later this year before Judge McKeown.

3. United States v. Boyd (E.D. N.C. June 7, 2011)

And a guilty plea, also earlier this week, by Zakariva Boyd on one count of conspiracy to provide material support in violation of 2339A, as explained below (from the press release):

Zakariya Boyd, aka “Zak,” pleaded guilty today in federal court in New Bern, N.C., to one count of conspiracy to provide material support to terrorists, announced Todd Hinnen, Acting Assistant Attorney General for National Security; George E.B. Holding, U.S. Attorney for the Eastern District of North Carolina; M. Chris Briese, Special Agent-in-Charge of the FBI Charlotte Division; and John F. Khin, Special Agent-in-Charge, Southeast Field Office, Defense Criminal Investigative Service (DCIS).

Boyd, 22, a U.S. citizen and resident of North Carolina, was first charged along with seven other defendants in a federal indictment returned on July 22, 2009. He was arrested on July 29, 2009 and the indictment was unsealed. On Sept. 24, 2009, a federal grand jury returned a superseding indictment in the case.

According to the superseding indictment, from before November 2006 through at least July 2009, Boyd conspired with the other named defendants and others to provide material support and resources to terrorists, including currency, training, transportation and personnel. The object of the conspiracy, according to the indictment, was to advance violent jihad, including supporting and participating in terrorist activities abroad and committing acts of murder, kidnapping or maiming persons abroad.

The indictment alleges that, as part of the conspiracy, Boyd and other defendants prepared themselves to engage in violent jihad and were willing to die as martyrs. They also allegedly offered training in weapons and financing, and helped arrange overseas travel and contacts so others could wage violent jihad overseas. In addition, as part of the conspiracy, the defendants raised money to support training efforts, disguised the destination of such monies from the donors, and obtained assault weapons to develop skills with the weapons. Some defendants also allegedly radicalized others to believe that violent jihad was a personal religious obligation.

At sentencing, Boyd faces a potential 15 years in prison followed by three years of supervised release for conspiring to provide material support to terrorists.

Boyd’s father and co-defendant, Daniel Patrick Boyd, pleaded guilty on Feb. 9, 2011, to one count of conspiracy to provide material support to terrorists and one count of conspiracy to murder kidnap, maim and injure persons in a foreign country. Trial for the remaining co-defendants in custody is scheduled for September 2011.