* Khalifh v. Obama (D.D.C. made available in unclassified form 6/14/10)) (denying habeas relief to GTMO detainee)
Judge Robertson today released the unclassified version of a previously-reported opinion (previously reported publicly that is, but I don’t think I knew of it or posted about it before on this listserv) ruling for the government on the merits in the case of Omar Mohammed Khalifh, a Libyan citizen held at GTMO. The full 17-page opinion is here. Key points include:
– In proving that a person was “part of” al Qaeda, the Taliban, or associated forces, the government must show that he “received and executed orders” but not that this included actual fighting on behalf of the group.
– The detainee must have been “part of” such a group at the time of capture, and the opinion at first suggests that the burden of proving this lies with the government. The opinion goes on to state, however, that a “petitioner who may once have been part of al-Qaida or the Taliban can show that he was no longer part of such an entity at the time of capture by showing that he took affirmative actions to abandon his membership,” a formulation suggesting that burden of proving vitiation actually lies with the petitioner. The opinion also notes that in some instances vitiation can be demonstrated by the circumstances even absent some affirmative evidence of withdrawal, as Judge Robertson previously held in Salahi. Judge Robertson notes that this requires exceptional circumstances, and that Salahi is on appeal in any event.
– The evidence established that Khalifh was an explosives expert and instructor who worked at al Qaeda’s Jihad Wahl and al Faruq camps in the late 1990s. In 1998 he lost part of a leg in a mine-sweeping accident, and spent much of the next three years recuperating while staying at guesthouses operated by al Qaeda (including guesthouses where senior al Qaeda leadership would stay).
– “While I find that the government has not shown that Khalifh was at Tora Bora or Taloqan or that he personally took up arms against U.S. or coalition forces, it is slicing the law too thin to require such proof. Given the clear proof of his long-standing membership in al-Qaida and the LIFG [a
Libyan Islamist group – note that the court decided it was unnecessary to
determine if LIFG counts as part of al Qaeda or as an associated force], and the absence of any evidence of active dissociation or of a compellingly lengthy lapse in activity (as in Salahi), find that Khalifh was a part of al-Qaida at the time his capture. Accordingly, the petition for writ of habeas corpus is denied. It is SO ORDERBD.”