Ever since the D.C. Circuit last week handed down its per curiam opinionlet in Al Warafi, I have been puzzling over this brief, unpublished order. I have begun to think it may be more important that I initially understood—and, specifically, that it may constitute a significant development in the D.C. Circuit’s consideration of the relationship between the AUMF and international law for purposes of detention authority. This is a matter with which the court has struggled very publicly since the Al Bihani panel opinion last year. The following thoughts are preliminary, and I would welcome reader response on whether they are right or wrong.
Al Warafi, you will recall if you read our argument preview and summary pieces, deals with a Guantánamo detainee who claims to have been a medic in Afghanistan and thus to be immune from detention under the First Geneva Convention. The district court rejected this argument, holding that he was “part of” the Taliban and that Section 5 of the Military Commissions Act bars him from citing the Geneva Conventions as a source of rights in habeas proceedings. District Judge Royce Lamberth also strongly suggested—but did not clearly hold—that Al Warafi was not permanent medical staff but served only on an as-needed basis.
The D.C. Circuit opinion reads in its entirety as follows:
This appeal was considered on the record, the briefs, and the oral arguments of the parties. The court has accorded the issues full consideration and has determined they do not warrant a published opinion. See FED. R. APP. P. 36; D.C. CIR. R. 36(d). For the reasons stated below, it is
ORDERED and ADJUDGED that the judgment of the district court denying Al Warafi’s petition for a writ of habeas corpus be affirmed in part and the case remanded in part to the district court. Al Warafi first challenges the district court’s determination he was more likely than not a part of the Taliban at the time of his capture. Alternatively, Al Warafi contends that even if he was a part of the Taliban, the district court should have granted his petition because he served permanently and exclusively as “medical personnel” within the meaning of Article 24 of the First Geneva Convention and § 3-15(b)(1)-(2) of Army Regulation 190-8.
On the first issue, we agree with the district court Al Warafi was more likely than not a part of the Taliban. See Barhoumi v. Obama, 609 F.3d 416, 423 (D.C. Cir. 2010). On the second issue, the district court did not explicitly address whether Al Warafi was permanently and exclusively medical personnel within the meaning of Article 24 of the First Geneva Convention and Army Regulation 190-8, § 3-15(b)(1)-(2), assuming arguendo their applicability. It did find Al Warafi “more likely than not served as a medic on an as needed basis,” Naji Al Warafi v. Obama, 704 F. Supp. 2d 32, 42–43 (D.D.C. 2010), but we are uncertain whether this was tantamount to finding Al Warafi served only as auxiliary medical personnel within the meaning of Article 25 of the Convention and Army Regulation 190-8, § 3-15(d)(2), as the Government contends, or that finding related only to the district court’s determination Al Warafi was a “part of” the Taliban, as Al Warafi argues. We therefore remand the case to the district court to consider (or reconsider) Al Warafi’s argument he was permanently and exclusively engaged as a medic and to make a finding on this issue. 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). The Clerk is directed to withhold issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing. See FED. R. APP. P. 41(b); D.C. CIR. R. 41(a)(1).
The first puzzling thing about this opinion is why the court would assume arguendo the applicability of the First Geneva Convention and Army Regulation 190-8, rather than deciding the question of their applicability. In the lower court, after all, Judge Lamberth clearly held that the Geneva Convention argument was precluded by the MCA. Whether that decision is right or wrong seems pivotal to answer before one reaches the question of whether Al Warafi qualifies as permanent medical personnel under Geneva I. After all, if the argument is not available to Al Warafi, it really doesn’t matter for habeas purposes whether he does, or does not, qualify under the Convention’s terms.
I can think of two possible reasons why the D.C. Circuit panel—consisting of Judges Douglas Ginsburg, Merrick Garland, and Stephen Williams—may have decided to assume this issue away, rather than address it. The first is that an argument under the regulation is presumably not barred, even if an argument under the Convention itself is barred, so the judges may simply be assuming that one way or another, Judge Lamberth needs to determine whether Al Warafi qualifies as a permanent medic.
But there’s a second possibility—which is, if right, potentially more important: The government effectively conceded on appeal that while the MCA bars citation of the Geneva Conventions as a source of rights, the conventions nonetheless have a legitimate role in these cases. The reason is that the government concedes that the scope of detention authority under the AUMF should be construed in light of the laws of war, including the Geneva Conventions. This issue was, of course, the subject of the D.C. Circuit’s fratricidal internal dispute in the Al Bihani non-en banc decision last summer. So the court here may be assuming the relevance in some form of the Geneva Conventions, because there is no dispute between the parties on that point.
But if that’s the case, this little opinion actually becomes pretty significant. It means that the D.C. Circuit has gone from, in the Al Bihani panel opinion asserting that international law has no role in these cases to asserting in the Al Bihani non-en banc that this had been merely dicta to now requiring the district court to make a factual inquiry under one of the conventions. If that’s what’s going on, Section 5 of the MCA means a whole lot less than Congress probably thought when it passed the apparently sweeping bar on any “person[’s] . . . invok[ing] the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action . . . as a source of rights in any court of the United States. . . .” It would seem, rather, that any Geneva Convention argument is now cognizable in the D.C. Circuit to the extent that it purports to inform the interpretation of the AUMF. If this is the D.C. Circuit’s view, I’m not sure what’s really left of Section 5 save perhaps a bar on suits alleging that, say, conditions of confinement violate the conventions’ terms.
That’s a pretty dramatic change, if it’s really what happened—and it’s altogether unexplained in the opinion.