Crowdsourcing on AQ and Analysis (new title)

[jmm99]

Judge Silberman's brief comment in Esmail v Obama (see Another brick in the wall for the entire court's findings) reinforces the suggestions made above by Ray and me;

SILBERMAN, Senior Circuit Judge, concurring:
......
First, to note that the government at oral argument agreed that even if petitioner could show he resolutely declined to “join” al Qaeda or the Taliban, and thus could not be said to be a part of either, so long as evidence showed he fought along side of al Qaeda, the Taliban, or with associated forces he would be covered by the Authorization for Use of Military Force. District courts, in that sort of case, need not strain to find a petitioner is “a part of al Qaeda.” See Hatim v. Gates, --- F.3d ---, 2011 WL 553273, at *1 (D.C. Cir. 2011); Awad v. Obama, 608 F.3d 1, 9 n.1 (D.C Cir. 2010); Al-Bihani v. Obama, 590 F.3d 866, 871-72 (D.C. Cir. 2010). [1]

[1] Of course, “the purely independent conduct of a freelancer” – one who does not fight alongside of, or actively support, al Qaeda, the Taliban, or an associated force – “is not enough” to justify detention. Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010).

While this is "dicta" in this particular case, it does provide guidance for a plausible argument in a case where a loosely associated group is involved.

Regards

Mike