Al Warafi: Letter from Counsel on Burden of Proof

By Larkin Reynolds
Tuesday, February 8, 2011, 4:50 PM

Following yesterday's oral argument in Al Warafi v. Obama, today petitioner's counsel filed a letter with the D.C. Circuit to clarify the petitioner's position on an issue that came up during questioning.  The court had asked who bears the burden of proving an individual's entitlement to the protections of Articles 24 and 28 of the Geneva Conventions. Text below.

Dear Mr. Langer:

Based on a public report on the oral argument held on February 7, 2011 in the above-captioned case, it appears that I may have given an unclear answer in response to a question from Judge Garland with respect to who has the burden of showing that the petitioner was “exclusively engaged” in medical work.

The petitioner’s position is that the Government has the burden of proving that his detention is lawful under the AUMF, and that the Government’s burden includes the burden of proving that he is not covered by Article 24 of the First Geneva Convention. (The Government’s brief did not argue that the petitioner has the burden of proof with respect to the Article 24 issue.)

The allocation of the burden of proof with respect to the Article 24 issue is, we believe, only of academic interest here. The evidence is unrebutted that the petitioner was “exclusively engaged” in medical activities during the two and a half months he worked at clinics and a hospital, and there is no evidence that the petitioner had “other military duties” or performed medical work only “occasionally.” Jean S. Pictet et al., Commentary: I Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 221 (1952). Accordingly, under any allocation of the burden of proof, the petitioner comes within the protections of Article 24 of the First Geneva Convention.

Sincerely yours,

/s/ Roger Ford

Roger A. Ford
Counsel for Petitioner
Mukhtar Al-Warafi