Detention: Law of: D.C. Circuit Development

Summary: D.C. Circuit Affirms Habeas Denial in Al Warafi

By Susan Hennessey
Friday, May 24, 2013, 3:33 PM

As Wells reported this morning, the D.C. Circuit has affirmed the habeas denial in Al Warafi. Mukhtar Yahia Naji Al Warafi unsuccessfully argued that even if he was a member of the Taliban, he was entitled to protected status as permanent medical personnel under Article 24 of the First Geneva Convention. The appellate court agreed with the D.C. district court decision that Al Warafi could not prove he qualified as medical personnel because he failed to carry the mandatory credentials---an armband and medical status identification.

The question of Al Warafi’s membership in the Taliban was resolved in February 2011, when the D.C. Circuit concluded that the government met its burden of demonstrating that Al Warafi was "more likely than not" a member. Affirming in part on the question of membership, the D.C. Circuit remanded to the lower court to determine whether Article 24, in fact, applied to Al Warafi. In the remand opinion, the court noted that:

Because he did not carry an identification card or wear an armlet bearing the emblem of the Medical Services at the time of capture, it appears that Al Warafi bears the burden of proving his status as permanent medical personnel. See First Geneva Convention, arts. 40, 41; id. art. 25 commentary; id. art. 40 commentary; Army Reg. 190-8, § 3-15(a).

On remand, the district court found that proper identification was necessary to prove one’s protected status under the Convention. Because Al Warafi did not wear an armband or carry a special identification of his status as medical personnel, he did not and could not meet his burden to prove protected status.

Today's D.C. Circuit decision resolves the question of the relationship between Section 5 of the Military Commissions Act---which bars detainees from invoking the Geneva Conventions in habeas proceedings---and Al Warafi’s claim to Article 24 protections:

In Section 5 of the Military Commissions Act of 2006, Congress provided, among other things, that a detainee may not invoke the Geneva Conventions in a habeas proceeding. However, Army Regulation 190-8 expressly incorporates relevant aspects of the Geneva Convention’s medical personnel protection. Army Regulation 190-8 is domestic U.S. law, and in a habeas proceeding such as this, a detainee may invoke Army Regulation 190-8 to the extent that the regulation explicitly establishes a detainee’s entitlement to release from custody. Therefore, for purposes of determining whether Al Warafi is entitled to release as medical personnel under Army Regulation 190-8, we may and must analyze the relevant aspects of the Geneva Conventions that have been expressly incorporated into Army Regulation 190-8.

On appeal, Al Warafi claimed that because the D.C. Circuit knew at the time of remand that he did not wear an armband or carry identification, by directing the lower court to consider the applicability of Article 24, the appellate court effectively ruled that it was possible to prove medical personnel status by some other means. Therefore, Al Warafi claimed, the district court decision holding that the official credentials were necessary violated the remand opinion. In this morning's opinion, the D.C. Circuit quickly disposed of this argument, stating that its prior opinion was agnostic as to the issue and merely required further development. Upon reviewing the lower court's conclusion on the developed issues, the appellate court now affirms that the Convention speaks in mandatory terms and the commentary expressly provides for identification as a necessary element:

The Geneva Conventions and their commentary provide a roadmap for the establishment of protected status. As the district court found, Al Warafi was serving as part of the Taliban. The Taliban has not followed the roadmap set forth in the Conventions, and it has not carried Al Warafi to the destination. We hold that without the mandatory indicia of status, Al Warafi has not carried his burden of proving that he qualified “as permanent medical personnel."

The decision further affirms the lower court holding that:

Nothing prevents parties like the Taliban from providing medical personnel with the identification materials mandated by Article 40. But until they do so, their medical personnel will lack the means by which they can prove their entitlement to Article 24’s protections.

Judge Janice Rogers Brown wrote a separate concurrence to underscore “the unstated significance of [the] holding.” According to Brown, this case resolves whether the Hamdan v. Rumsfeld opinion finding that Common Article 3 affords some minimal protections to members of Al Qaeda, “should now reverberate through every Article of the Geneva Convention [and require that] all protections, not just the minimum protections of Common Article 3, should be made accessible to terrorists and their ilk.” Brown writes separately to explicitly note it does not:

And therein lies the true significance of today’s holding: in determining how the Convention operates and to whose benefit, courts must run a discrete calculus for each Article (or related series of Articles) that considers the treaty’s language, structure, history, and purpose. For all the reasons outlined in the District Court opinion, see Al Warafi v. Obama, 821 F. Supp. 2d 47 (D.D.C. 2011), I believe the court got it right in adopting a bright-line test. In addition to its “strong mandatory language,” Op. 8, Article 24 reflects an intricate regulatory scheme that implicates a unique balancing of interests; imposes potentially burdensome affirmative obligations; attempts to remedy a particular historical wrong; and, among other things, both implicitly and explicitly recognizes the role that formal military corps must play on both sides of the repatriation. Compliance, it follows, is a necessary condition to invoke Article 24 protections. Hamdan’s willingness to bend the Geneva Convention to favor those who openly disregard the laws of war need not extend past Common Article 3.

For those interested in reviewing the timeline, Ben first discussed the appeal back in October 2010. Links to Judge Royce Lamberth's original opinion in the matter and the various public briefs are available here. Lawfare covered the oral arguments in the first appeal with a preview, summary, and analysis, as well as post-argument maneuvering. The D.C. Circuit's February 2011 partial remand is covered here, with additional analysis as to the implications here.  Judge Lamberth's decision on remand is here, with coverage of the second round of oral arguments here.