Detention: Law of: D.C. Circuit Development

Al Warafi's En Banc Rehearing Denied

By Raffaela Wakeman
Thursday, August 29, 2013, 11:00 AM

So writes the D.C. Circuit in this terse per curiam order.  It was issued Monday.

Al Warafi, a Yemeni detainee, had claimed in the District Court that he had not joined the Taliban, but instead worked only in Afghanistan at a medical clinic; and that even if he had affiliated with the Taliban, his service has a medic shielded from detention pursuant to Article 24 of the First Geneva Convention and certain Army regulations. Initially, the District Court denied Warafi's petition, in 2010, concluding that the government had proved that Warafi was more likely than not a member of the Taliban (and thus could detain him pursuant to the AUMF); and that Warafi could not invoke the Geneva Conventions as a source of rights.

The D.C. Circuit remanded the case, and ordered the lower court to consider Warafi's argument that he should receive protected status. Judge Royce Lamberth found on remand that the detainee had not proven that he was guaranteed protection under Article 24, as he lacked required identification.  Here the judge disagreed with Warafi's argument that the First Geneva Convention required only a functional assessment of the petitioner's activity, rather than a more simple, formalistic inquiry as to his possession, or not, of an identification card. The D.C. Circuit affirmed Judge Lamberth's ruling this spring.  Susan summarized the D.C. Circuit's affirmance here.  Warafi then sought en banc review.