As Ben highlights in his summary of yesterday’s Al Warafi oral argument, a key issue for the D.C. Circuit in this case is the meaning of the district court’s finding that Al Warafi served as a medic with the Taliban on an “as-needed" basis. Petitioners have urged that this statement was made in the context of determining whether the petitioner fell within the command structure of the Taliban, while the government claims it means Al Warafi was a temporary, not permanent, member of the medical corps (and thus not entitled to the protections of Articles 24 and 28 of the First Geneva Convention).
The record of the proceedings in the district court offers some additional context for how the "as-needed" language in Chief Judge Royce Lamberth's opinion might have been intended. Below we've pulled some snippets of the district court proceedings from the publicly available joint appendix. The portions quoted are from the closed session of the January 12 merits hearing, the declassified transcript of which is now available on PACER. Page numbers are those of the appendix.
The government's counsel, Sarah Maloney, argued the issue first:
MS. MALONEY: Now I would like to address petitioner's argument that he is not detainable because he qualifies as quote, medical personnel, end quote, under the first Geneva Convention.
As we showed in our briefs, his argument is meritless. First, to the extent petitioner is attempting to invoke directly the first Geneva Convention as an independent source of rights for a private cause of action, his claim is barred by the Military Act, section five. Second, petitioner's activities with the Taliban forces wouldn't qualify him as medical personnel under analogous circumstances in an international armed conflict.
He can hardly be considered, quote--excuse me. He can hardly be considered medical personnel as contemplated by article 24 of the first Geneva Convention. He was not, quote, exclusively engaged in the search for, or the collection, transport, or treatment of the wounded or sick or in the prevention of disease, end quote. Nor was he a member of, quote, staff exclusively engaged in the administration of medical units and establishments, end quote. That's language from the first Geneva Convention, article 24.
The evidence shows that petitioner more likely than not became a part of the Taliban forces as a fighter, before he went to work for the Al-Ansar Battle Clinic Aid Station. He did not withdraw from those forces. Indeed, not until 'the Taliban fell did petitioner even give up his assault rifle and surrender with his fellow fighters.
As we showed earlier also, petitioner has no real formal medical education, and he has very limited medical experience. He obtained some minor sporadic experience working in health care, when he was employed as a lab assistant and custodian in his brother's medical laboratory. So based on this evidence, petitioner's temporary role at the Al-Ansar Clinic would at best render him akin to a member of the armed forces, served and trained as an orderly should the need arise as contemplated in the first Geneva Convention article 25. The convention specifically contemplates the detention of such member of the armed forces as this.
Articles 25 and 29 state that hospital orderlies or nurses engage in the transport or treatment of the wounded and the sick are detainable. So, petitioner remains on the northern front in Takhar and Konduz provinces from August 2001 until November 24, 2001.
Following the government’s presentation, petitioner's counsel, Philip Scarborough, addressed the Geneva Conventions:
MR. SCARBOROUGH: So Article 24 of the Geneva Convention clearly identifies who medical personnel are. They are those personnel who were exclusively engaged in the search of the sick or the wounded or the treatment. And then also staff exclusively engaged in the administration of medical units and establishments.
If you jump down to article 28, says, "Personnel designated in articles 24 and 26 who fall into the hands of the adverse party shall be retained only insofar as the state of health, the spiritual needs and the number of prisoners of war require." So, this article also very clearly states that in fact medical personnel are not detained in the normal sense. They're retained only as necessary in order to treat the other prisoners of war, the other detainees. Article 30 says "Personnel whose retention is not is indispensable by virtue of Article 28 shall be returned to the party to the conflict to whom they belong as soon as a road is open for their returned and military requirements permit.
So, we've submitted into the record I believe joint exhibit 57 the declaration of the Ambassador of Yemen indicating that country of Yemen is willing to accept petitioner Mukhtar among others back into Yemen. It is very clear that a road is open. So, really the only issue arising out of the -- with respect to Mukhtar is whether or not he was engaged exclusively in.the search for, or treatment of the wounded or the sick in the administration of a medical unit.
Petitioner's counsel then discussed Article 25, which the government has argued more properly applies to the petitioner's activities prior to his capture (emphasis added):
MR. SCARBOROUGH: Article 25, as you will notice, says that members of armed forces specially trained for employment should the need arise as hospital orderlies, nurses or auxiliary stretcher-bearers can be retained although they have to be respected and protected during the time that they are engaged in those activities.
THE COURT: What article with is that?
MR. SCARBOROUGH: This is in article 25. It says--
THE COURT: Right.
MR. SCARBOROUGH: It says "shall likewise be respected and protected if they're carrying out these duties at the time when they come into contact with the enemy or fall into his hands." So, what that establishes is the individuals who are temporarily moved from a fighting position or some other support position into a support role for medical facilities, if they're sent out to the battlefield for example to carry the wounded off the battlefield, they're not law enforcement targets. And they should not be permitted, if you are captured when you are doing that, then you have to be respected but you can still be detained.
THE COURT: You would not have that article 24 protection.
MR. SCARBOROUGH: You would not have article 24 protection.
THE COURT: Therefore article 28 would not apply.
MR. SCARBOROUGH: That is correct. Article 28 would not apply.
THE COURT: If you find they're an orderly, nurse or stretcher-bearer.
MR. SCARBOROUGH: Not just if you find they are an orderly, nurse or stretcher-bearer[;] the clause goes on. It says, "members of the armed forces specially trained for employment should the need arise." So if they're an orderly, sort of as-needed orderly or as-needed stretcher-bearer or as-needed nurse, then article 24 and 28 would not apply.
[As to] Article 29, I won't take the time to read that. But article 29 sort of sets out the fact that that protection would not apply. So, the real question with respect to the Geneva Convention argument here is, is there evidence demonstrating that Mukhtar was engaged in anything other than the medical activities at the clinic once he went to the clinic. And there simply isn't anything.
The government, as Mr. Livingston established with the time line, Mukhtar was at the medical clinic for the vast majority of his time in Afghanistan. He was only there for a very short time, approximately three months before he was taken into custody. Of that three months, about two and a half of those months, give or take a week or so on the margin were spent at the medical clinic. And there is sirrply no evidence that he engaged, that he picked up a weapon or that he engaged in any sort of combat activity or received any orders as part of the command structure once he went to the clinic.
We would also submit that is no evidence that he was ever part of the command structure. But even if you concluded that he did and that this was a Taliban unit, then there is no evidence that he ever left that role and he was exclusively engaged in the search for the treatment of the wounded or the sick.