Tomorrow morning the D.C. Circuit will hear oral argument in Al Warafi v. Obama, a Guantánamo merits appeal that challenges Judge Lamberth’s March 2010 decision denying habeas relief to petitioner Mukhtar Yahia Naji Al Warafi. In addition to fairly typical clear-error factual questions, Al Warafi presents a few new legal questions for the D.C. Circuit. In fact, the court may need to decide whether and how international law limits the AUMF’s detention authority. The court may also have to delve into Salahi-like issues relating to how the scope of detention authority is affected when an individual’s role within a terrorist organization and activities on its behalf change over time.
In Al Warafi's case at the district court, Judge Lamberth found that the petitioner “more likely than not went to Afghanistan to fight with the Taliban; received weapons training while stationed at the Khoja Khar line; volunteered to serve as a medic when the need arose; and surrendered on his commander's orders.” Al Warafi appeals Judge Lamberth's conclusion that these facts, viewed under Congress's Authorization for Use of Military Force (AUMF) and relevant precedent, render Al Warafi's detention lawful.
In his opening brief, Al Warafi argues, first, that the district court erred in concluding that the government’s evidence was sufficient to show that he was “part of” the Taliban. Al Warafi argues, second, that the district court erred as a matter of law by “disregarding limitations on the government's authority to detain medical workers if they were part of the Taliban.” Because he was “exclusively engaged" in medical work, his lawyers argue, he is protected by Article 24 of the First Geneva Convention, which provides protections for medical workers and prohibits their indefinite detention.
In support of the first argument, Al Warafi focuses on his activities in the period subsequent to October 7, 2001 and before his capture, which he argues was the “relevant time period” for determining if he was “part of” the Taliban. October 7 was the date that U.S. military action began in Afghanistan; in the period that followed, he claims, he was “a full-time worker at medical clinics run by a Saudi doctor, which were not shown to be run by or affiliated with the Taliban.” Al Warafi relies on the statement in Hamdi that "individuals who fought against the United States in Afghanistan as part of the Taliban ... are individuals Congress sought to target in passing the AUMF" to support his argument on this issue.
The brief continues:
There was no evidence that the clinics where Mukhtar [Al Warafi] worked were owned or operated by the Taliban, nor did the court so find. To the contrary, the court specifically found that the clinics where Mukhtar worked were "run by" Dr. Aziz. There was likewise no evidence nor findings that Dr. Aziz or any of his staff were affiliated with the Taliban.
In response, the government points to the district court’s findings about Al Warafi’s activities prior to the U.S. military operation, emphasizing that all of the evidence of his involvement with the Taliban is relevant to the ultimate question of his membership:
Al Warafi attempts to avoid [his pre-U.S. intervention activity] by arguing that the Court should focus solely on the medical services he provided after the United States military operation began (on October 7, 2001), and ignore all the evidence regarding how he became part of Taliban forces earlier in 2001 around the time of the September 11 attacks. But under this Court's decisions, all of the evidence of his involvement with Taliban forces is relevant to whether he was part of those forces.
In his reply brief, Al Warafi focuses on his contention that “relevant issue is whether Mukhtar functioned as part of the Taliban after October 7, 2001.” He writes that the cases in which the D.C. Circuit upheld the detention of a detainee who came to Afghanistan before the September 11 attacks are distinguishable from his own; in those cases, he writes, the "detainee remained active in the Taliban or al Qaeda after the war with the United States began."
Al Warafi’s second main argument is that the district court erred as a matter of law by “disregarding limitations on the government's authority to detain medical workers if they were part of the Taliban.” On this point, Al Warafi refers to Judge Lamberth’s holding that “[a]n individual is part of the Taliban if he operates within its command structure. If petitioner provided medical service within the Taliban's command structure--i.e., provided service where the Taliban ordered him to--he would be part of the Taliban, and therefore detainable.” In the district court, Al Warafi argued that the Geneva Conventions—particularly the First Geneva Convention—prohibited his detention because he was “exclusively engaged in ... the treatment of the wounded or sick.” Chief Judge Lamberth rejected this argument, quoting from the D.C. Circuit’s January 2010 ruling in Al Bihani to say that courts could only look to “the text of the relevant statutes and controlling domestic case law” to determine whether petitioner's detention is lawful.
In his opening brief on appeal, Al Warafi writes that the district court “incorrectly ruled that these Geneva provisions must be ignored.” Specifically, he argues that Section 5(a) of the Military Commissions Act of 2006 does not render the Geneva Conventions irrelevant and, if it did, it would affect an unconstitutional suspension of the writ of habeas corpus.” Emphasizing that “the AUMF incorporates recognized ‘law of war’ limitations on the detention of medical personnel,” he goes on: “If the Geneva Conventions render detention unlawful, then the Government cannot meet that burden by disregarding that law.” The petitioner emphasizes that the “district court found that it was ‘undisputed’ that Mukhtar [Al Warafi] worked at clinics run by Dr. Aziz," and that:
[w]ithin two to three weeks of Mukhtar's arrival in Afghanistan--by the middle of September 2001 at the latest--he had visited and then left the front area and that thereafter he was working exclusively at a medical clinic operated by Dr. Aziz. It is also clear, and the district court found, that Mukhtar never engaged in any military combat in Afghanistan.
The government does not dispute Al Warafi's contention that the Geneva Conventions are relevant in interpreting the AUMF. Rather, the government argues, the argument about the Geneva Conventions is superfluous as applied to these facts:
[T]here is no need to engage Al Warafi's argument based on the AUMF because the district court found that he served as a medic on an as-needed basis, rather than having been permanently and exclusively so engaged. That finding, which is not clearly erroneous, necessarily defeats any claim that Al Warafi may seek to advance that he is not detainable because he was exclusively employed as medical personnel within the meaning of Article 24 of the First Geneva Convention. Article 24 is limited to persons who are assigned to the medical service of a party to the conflict on a permanent basis. As detailed below, the district court's finding that Al Warafi was engaged as a medic on an as-needed basis is fully supported by the record.”
The government then emphasizes its claim about Article 24 by distinguishing it from Articles 25 and 29, which apply to individuals who provide medical care as part of a force only "should the need arise." Articles 25 and 29, the government urges, “confirm that persons who are not permanently assigned to the medical service need not be returned to the enemy,” and their obvious fit with the facts in Al Warafi’s case make clear that Al Warafi is in fact lawfully detained.
In reply here, the petitioner quotes the district court’s statement that Al Warafi worked in clinics “on an as needed basis within the command structure of the Taliban,” but emphasizes an alternative meaning of that finding: that the court's language gave “no indication that the court meant that Mukhtar worked part-time or nonexclusively as a medical worker.” The petitioner goes on to say that, in context, the district court’s finding meant “only that in serving as a medic, he was doing what the Taliban 'needed,' such as moving from one clinic to another when directed."
We will have an account of the oral argument, which takes place tomorrow before judges Douglas Ginsburg, Merrick Garland, and Stephen Williams. It is listed as the third of three cases argued before the panel starting at 9:30.
Lowell V. Sturgill Jr. will be arguing for the government. Roger A. Ford will argue Al Warafi's case.
(Note that there are some alternative spellings of Al Warafi, including Al Wrafie. We have opted to spell petitioner's name as in the D.C. Circuit's case style.)