Speaking of Al Warafi, I promised after the oral argument a few weeks back that I would reality-check my summary of the argument on a key point against the transcript of the argument when one became available to me. I had written that Judge Merrick Garland,
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?
[Roger A.] 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.
To my surprise, after the argument Ford filed a letter that suggested his answer had not been clear:
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.
This troubled me, since I had paraphrased what I understood to be a significant concession. When I do these argument summaries, I am writing extremely quickly and trying to reconstruct from a combination of hasty notes and memory very nuanced and detailed arguments. Mistakes are inevitable. In this case, however, I think the concession I reported is pretty clear in the transcript.
For whatever it's worth, here is the relevant section:
MR. FORD: And under that the, it's the Government's burden to demonstrate that his detention is lawful. And if it's --
JUDGE GARLAND: Well, isn't the Government's, on this particular issue, which is on the medical issue, the commentary, I'm going to read two parts of the commentary, and these are both with respect to the insignia and the card that the person is supposed to carry. So, the commentary for Article 40 on distinctive emblems says the armlet is not itself sufficient to establish the status of the wearer, if he falls into enemy hands he must be able to prove that he is entitled to wear it, he must also be in a position to prove that he is a member of the medical or religious personnel in order that he may enjoy the status accorded to him under the Convention and be eligible for repatriation. A special identity card is therefore necessary.
MR. FORD: Well, so what Article 21 says is that the medical protections protected by the Convention do not cease unless the medical personnel acts offensively. I would say that the --
JUDGE GARLAND: But that's a different question. That's a question of if it could be proved that he were a -- correct? You're nodding --
MR. FORD: Yes.
JUDGE GARLAND: -- right?
MR. FORD: No, I agree.
JUDGE GARLAND: So, if you could prove that you were a medical person then you might get it even if you didn't have a emblem. But in the -- or a card. But in the absence of a card, can it be that whenever the military arrest anybody on the battlefield they can simply say I'm just a medic and have no evidence other than their word and not have a card?
MR. FORD: Well, I would say that what the commentaries there are saying is you need evidence of what you were doing, of, you know, to demonstrate that you were exclusively engaged in medical work –
JUDGE GARLAND: Right.
MR. FORD: -- as Article 24 puts it.
JUDGE GARLAND: So, he wasn't carrying --
MR. FORD: But --
JUDGE GARLAND: -- a first aid kit, he wasn't carrying transfusion equipment, he wasn't doing anything, the only -- he was carrying a gun. The only evidence --
MR. FORD: Well, that's --
JUDGE GARLAND: Correct?
MR. FORD: -- disputed in the record. The District Court found that he was.
JUDGE GARLAND: Well, the District Court found it, so --
MR. FORD: Yes.
JUDGE GARLAND: -- we have a clear error question. So, the only -- under these circumstances the District Court said that he was serving as a medic as needed, which puts you in a different article, although I appreciate that the burden is on the Government to prove the person can be detained, the commentary suggests that if you're not carrying a card then you have the burden of showing you are within the category of medical personnel. Is that wrong? Is that wrong?
MR. FORD: I don't think that's wrong, but at the same time the District Court didn't reach the question of whether he was working full time as a medical personnel.
JUDGE GARLAND: Well, he did say repeatedly in words that uncannily parallel the language of, it's Article 25, right?