Lawfare readers, let my devotion to you never be questioned. To bring you this here summary of today's oral argument in Mahktar Al-Warafi v. Barack Obama, I have had to engage in a mortification of the flesh. As the court was not sticking to schedule today, I had to sit through the entire, extended dance version of an oral argument in a very caricature of D.C. Circuit administrative law drudgery: An actual FERC case. Needless to say, my will to live was flagging by the time Roger A. Ford got up--finally--to argue for overturning Chief Judge Royce C. Lamberth's opinion denying habeas to his client. But I rallied--and tried to take decent notes.
Warafi is a very hard case--hard on both sides. I was absolutely convinced when either side talked that the other side would win. After the argument was over, I can genuinely say that I do not know which way this case will go, and I don't envy the judges who have to decide it.
Ford begins by arguing that his client worked in medical clinics before his seizure by the Northern Alliance. There is no evidence, he says, that these were Taliban clinics, and Judge Lamberth's inference that he was part of the Taliban in his work for them is clearly erroneous. Even if he was Taliban, however, he was a medical worker and thus exempt from detention under the First Geneva Convention--which deals with the treatment of the sick and wounded during wartime and generally forbids the detention of those "exclusively engaged in the . . . treatment of the wounded or sick, or in the prevention of disease" (see Articles 24 and 28).
Judge Stephen Williams cuts him off. Was there no basis, he wants to know, for Judge Lamberth's assumption that Al Warafi went to those clinics on orders from a Taliban superior? Ford responds that these clinics were not run by the Taliban but by a Saudi doctor named Abdullah Aziz. There is no evidence, he says, that Dr. Aziz was part of the Taliban. And there is no basis to assume that just because he and Al Warafi left town when the local Taliban commander negotiated a safe passage agreement that they were leaving as part of the Taliban command structure. It was, he argues, more like an ordered evacuation in response to a hurricane.
Well, says Judge Douglas Ginsburg, he didn't just "leave town." He left with a group of Taliban fighters. Ford is undeterred. He left, he says, with a "stream of people" fleeing a zone of combat. Besides, even if he was part of Taliban forces at the time, that doesn't matter. That fact would put him squarely under the protection of Article 24 of the First Geneva Convention. Medical workers can't be detained, and there's no doubt in the record that he was a medical worker.
There are a number of problems with this apparently straightforward and winning argument. The first, key to Judge Lamberth's ruling below, is that Congress--in Section 5 of the Military Commissions Act of 2006--said rather bluntly that "no person may invoke the Geneva Conventions . . . in any habeas corpus proceeding . . . as a source of rights in any court of the United States." Why does this not preclude your argument, Judge Williams wants to know? Ford says there are four reasons, though he never gets past his first. In this case, he argues, the convention is not a source of rights. The source of rights is habeas itself. Habeas, Judge Williams responds, is a procedure. Are you saying it incorporates the Geneva Conventions? Ford responds that the substantive law of habeas is that one cannot be held in violation of the laws of the United States, and the Geneva Conventions are part of those laws. But if that's right, Judge Williams responds, then is there any habeas context in which the MCA would preclude a claim based on the Geneva Conventions? There is, Ford responds. In Al Adahi and Noriega, appeals courts refused to let the Geneva Conventions be used to create additional rights in habeas. Judge Williams wants to know where he can find the proposition that the rights in question here were already in habeas at the time of the MCA.
Judge Merrick Garland steps in at this point and asks why Ford is arguing his weakest point. The government, Judge Garland points out, has conceded that the detention power given it by the AUMF is to be interpreted in light of law of war of principles--including the Geneva Conventions--so there is no dispute that the conventions are at some level relevant. Ford agrees. But just when an observer might suspect that Judge Garland has Ford's back, he hits him hard. He quotes the commentary on the First Convention to the effect that the burden is on the detainee asserting that he is medical personnel to prove it, that an armband may not be sufficient for this purpose, and that a special identification card may be necessary. Does he accept that the burden is on his client to show that he was a medic and, if so, did he have anything like a card?
Ford acknowledges, in what may be a fateful admission, that his client has to be able to show what he was doing, but he insists a special ID card is not necessary. Judge Garland pursues him. Your client wasn't carrying medical equipment when he was captured, he points out. He was carrying a gun. And the district court said that he was serving as a medic "as needed"--not as a full-time assignment of the sort that would qualify him for exemption from detention under Article 24. Judge Garland says he appreciates that the government has the burden of showing that Ford's client was part of the enemy, but he has the burden of showing that he was a medic. And Judge Lamberth says repeatedly in his opinion that he was a medic only "as needed." Ford says he interprets "as needed" to refer to Al Warafi's having been stationed at the clinics by the Taliban, not to his being a part-time medic. The opinion, he notes, doesn't say whether he was full-time or part-time.
Judge Ginsburg says that it looks to him like Judge Lamberth was saying that Al Warafi served as a medic only on an as needed basis and thus is not covered by Article 24. But Ford disputes this. In the relevant part of the opinion, he notes, Judge Lamberth is attempting to demonstrate that Al Warafi was taking orders from the Taliban, not that he was working part-time as a medic. Judge Ginsburg returns to his absence of an identification card. Isn't that fatal even if Ford's client isn't barred from citing the Geneva Convention? Ford says he doesn't think it is. The convention commentary says it is, Judge Ginsburg reminds him. No, says Ford. It says he has to show that he was medical worker, and here the evidence is uncontested that that is what he was doing. Judge Lamberth found that he treated six or seven people per day. And what if he was part of the Taliban's command structure too, asks Judge Ginsburg? Medical personnel are part of the command structure, Ford responds, and still not subject to detention.
Judge Garland pushes him: Al Warafi went to Afghanistan to fight; he went to the front; he went as needed to be a medic; he was captured with a gun; and he had no card. Why does this not support the district court's finding that he was a medic as needed? Because, Ford responds, such a finding is completely inconsistent with the requirement of Article 25 of the First Convention that he have other responsibilities in order to be detained. Yes, he got a little training--just as U.S. military medical personnel do--but then he went to these clinics for two-and-a-half months as a permanent assignment and did nothing else. And with that, he concludes.
Based only on Ford's argument, I would confidently predict that Al Warafi is toast at the D.C. Circuit. The judges all seemed skeptical, and I couldn't see that he had broken through with any of his arguments. But then Lowell V. Sturgill Jr. rises for the government and things get complicated--not because he stumbles but because the judges seem just as uncomfortable with his arguments as they do with Ford's.
Sturgill begins badly, pompously announcing that he is there representing "the President." Judge Garland teases him that he is actually representing "the President et al"--to general laughter. Sturgill responds by homing in on what he probably thinks, based on Ford's argument, is his strongest point--the distinction between detainable "as needed" medical personnel and exempt permanent medical personnel. Judge Lamberth, he argues, correctly held that Al Warafi provided medical services only as needed.
But if he thinks he's pushing on an open door here, he gets a rude surprise. Judge Williams cuts him off. When Judge Lamberth uses those "magic words" "as needed," he asks, is he really referring to the difference between Articles 24 and 25 of the Convention? He certainly never says that he is, Judge Williams notes. Sturgill argues that he is, but that in any event, he did make a finding of fact that Al Warafi was an "as needed" medic. Judge Williams is clearly unpersuaded. The whole focus of the relevant section of the opinion, he points out, is on a different matter: whether Al Warafi is part of the Taliban's command structure. Sure, the phrase "as needed" was floating around in the record and in the opinion, but Judge Williams says he is not convinced that its presence in the opinion amounts to a citation of the convention's distinction between full-time and occasional medical personnel. Judge Lamberth, he says, seems to be saying that if he supplies medical services as needed by his commander, that would show that he is part of the command structure. That doesn't really answer the question of whether he is exempt medical personnel for purposes of Article 24 or whether he is occasional medical personnel for purposes of Article 25. Sturgill responds that it reflects more than Judge Williams allows. Al Warafi, he says, argued at the district court that he was permanent medical personnel; we argued that he served as needed. The court's finding agreed with us. Even if that's not what Judge Lamberth meant, he goes on, it is a finding of fact that is adequate and complete and not clearly erroneous.
But Judge Williams is not on board. Suppose someone turns up with the Taliban, saying he's here to do what he can. The commander finds out he's got this medical background--as Al Warafi had--and says "Off to medical services with you! We have need in that area." And then that person spends the whole time there. Is that "as needed" or permanent? Sturgill does not really answer this question. He points out that Al Warafi never testified, that he gave a self-serving declaration instead--one that Judge Lamberth reasonably chose not to credit on many points. And he contends that the district court's factual findings support his judgment. But why then, Judge Williams wants to know, does Judge Lamberth go out of his way to reject the petitioner's ability to cite the Geneva Conventions? This point is, after all, totally irrelevant if he had already determined that Al Warafi qualified for no protection under Article 24. He's got Sturgill in a bit of a bind here, and Sturgill responds unpersuasively that it is just a recitation of an important point of law--though he acknowledges that Judge Lamberth didn't need to say it. (In my view, at least, he is almost certainly wrong on this point. Judge Lamberth's opinion clearly attaches more importance to the MCA than that.) Sturgill then comes back to his insistence that the court made a finding and that this finding precludes the argument in question--ground on which he is far stronger. It is a mistake, he says, to try to read Judge Lamberth's mind. If you want to try, the best reading is that he knew what he was doing when he used the words "as needed."
What's more, he goes on, circling back to the point Judge Garland made to Ford, the government doesn't carry the burden on this point. Al Warafi's status as a medical worker is in the nature of an affirmative defense, and Al Warafi needs to establish it. It's not even clear that the Taliban had a permanent medical core. If it did, its members were not supposed to resist capture or to fight. Judge Ginsburg points out that there is no evidence that Al Warafi did resist capture. And Judge Williams asks whether there is any evidence that, after being assigned "as needed" to the clinics, he violated any of his obligations under the Convention. Sturgill says he is aware of none, though he did flee the battlefield as part of Taliban forces. Isn't accompanying their forces on retreats what medics are supposed to do, Judge Williams asks? Sturgill responds that it supports the finding that he was part of Taliban forces, but the court seems to have little doubt on that point. And Judge Williams is evidently unpersuaded that it shows anything about the point on which it clearly has great doubt: Whether Al Warafi is a permanent medic or an as-needed medic within those forces.
Judge Ginsburg asks Sturgill to clarify who has the burden of proof, and Sturgill responds that the government has the burden of proving that Al Warafi is part of enemy forces but that he has the burden of proving that he was a full-time medic. Is there any evidence that any Taliban has ever carried a medical ID card, Judge Ginsburg asks? Sturgill says he doesn't know, in response to which Judge Ginsburg quips that he thinks it would be a good idea for the Taliban to give everyone such cards. The joke has a serious side: The case raises the question of how manipulable the generosity of the laws of war should be by forces that do not observe their terms.
Judge Williams then asks Sturgill how exactly the Geneva Conventions inform the interpretation of the AUMF--and whether the government's position on this point has been waived, having not been raised in the lower court. He and Sturgill have an exchange on this point, which is a sticky one for the government. At the time Judge Lamberth issued the lower court opinion, after all, the D.C. Circuit had said very clearly that international law played no role in these cases (a point to which Judge Williams never signed on). U.S. statutory law was all that mattered. In the months since, however, the full court--in the Al Bihani non-en banc en banc--has backed away from that position, which the government never embraced anyway. So the point is much muddier today than it was when Judge Lamberth ruled. This ambiguity and shifting ground, combined with factual uncertainty as to what Judge Lamberth meant when he used the words "as needed," might legitimately provoke a remand here--an outcome that might make a good bit of sense.
Judge Garland then steps in and asks whether the government accepts that someone who qualifies as a medical worker must be returned to the other side in this conflict. Sturgill says that the rule applies, but it may not apply in quite the same way as it would in a normal conflict. Judge Garland asks him how it differs. It's an asymmetric conflict, he says, and there are enough differences that the Convention's requirements may apply in different ways. For example, the return of medical personnel can be contingent on military necessity, he says, and someone may have information it would be important to get before releasing him. Judge Garland gently points out that the government has had a lot of time with Al Warafi in custody. Another example, Sturgill offers, is that Al Warafi wants to be repatriated to his home country, Yemen, whereas the Convention requires that he be returned to his own forces--which are in Afghanistan.
Judge Garland then wraps up Sturgill's argument by asking him about Army regulations implementing the First Convention. These clearly are a source of law, he points out, even if the Convention cannot be cited in habeas. Sturgill responds that the Army regulations in question don't get Al Warafi any further than the Convention itself does. They require that in order to be certified as a medic, one has to have a card. Judge Williams notes that there seems to be a little give in the regs on that point, but Sturgill holds his ground and turns the floor over to Ford for his rebuttal.
Ford begins by asserting that every medical worker works as needed. That, he says, is not the question. The question is whether medical personnel work exclusively as medical personnel or whether they do anything else as well. Here, he says, the record shows two-and-a-half months of nothing but medical work on Al Warafi's part. Judge Lamberth used the phrase "as needed" only to describe whether or not his client was part of the Taliban, not to describe a finding concerning the exclusivity of his medical work.
Judge Garland here picks up on his earlier exchange with Sturgill and asks to whom the U.S. government should return Al Warafi if the Convention applies. Ford responds that it is impossible to send him back to Afghanistan. Judge Garland points out that this would be an atextual application of the convention, to which Ford responds that the convention requires medical workers to be repatriated--the assumption being that they would be fighting for their own country.
Judge Ginsburg ends the hearing by thanking Ford and thanking as well "counsel for the President."
UPDATE: A great many typos removed, and apologies for them inserted.