Guantanamo Litigation: District Court

Warafi Habeas Opinion Released

By Benjamin Wittes
Tuesday, November 1, 2011, 4:18 PM

The U.S. District Court for the District of Columbia has released Judge Royce Lamberth's opinion on remand in Warafi. Judge Lamberth first denied Makhtar Al-Warafi’s habeas petition some time back, but the D.C. Circuit remanded the case in part for clearer findings concerning whether Al-Warafi in fact qualifies as full-time medical personnel (and would therefore be exempt from detention) or only served “as needed” as a medic (and would therefore be lawfully detained).

Judge Lamberth now writes:

At the time of his surrender, petitioner carried no form of identification indicating his status as permanent medical personnel. Nor has he presented any other documentation that might put him "in a position to prove that he is a member of the medical . . . personnel, in order that he may enjoy the status accorded to him under the Convention."  . . . Petitioner thus lacks what the Convention regards as the preeminent credential by which a detained individual can validate his protected status under Article 24.

Petitioner argues that Article 24 requires only that medical personnel be "exclusively engaged" in medical work. He contends that nothing in the text requires that medical personnel also receive "bureaucratic designation" for their medical work. Pet.'s Br. on Remand 9. Thus, petitioner argues, the Court should focus only on a functional assessment of whether he was exclusively engaged as a medic. The Court disagrees. Article 24's text is descriptive--it describes those individuals who are eligible for protected status. It cannot be read without reference to Article 40, which sets forth the means by which an individual proves that he is eligible for protected status. As the Commentary to the Protocol Additional to the Geneva Conventions explains:

The principal persons protected by the Conventions and the Protocols, i.e., the wounded, sick and shipwrecked, can be identified by means of their condition ... [but] [t]he same does not apply to the personnel and objects protected in their functional capacity . . . . A soldier with medical duties is actually an ablebodied person who might well engage in combat . . . . Thus it is essential for medical personnel . . . to be identified in order to ensure the protection to which they are entitled.

Commentary to the Protocol Additional to the Geneva Conventions 222 (Int'lComm. of Red Cross) (emphasis added). A functional assessment is therefore insufficient to establish whether petitioner is entitled to protection under Article 24. The inadequacy of a functional assessment is underscored by the fact that the Convention guarantees full immunity only to persons engaged as permanent medical personnel. Consider the following scenario. A soldier comes upon a uniformed individual who is attending to the wounded on the battlefield. Reliance on a functional evaluation would leave the soldier without the means of determining whether the uniformed individual is a permanent medic entitled to full immunity or an enemy combatant who is simply attending to the wounded at that time. Proper identification is thus necessary to enable battlefield participants to readily identify those persons who qualify for protection under Article 24.

Given the regime contemplated by the Convention, petitioner's effort to prove his status through other means must fail. He emphasizes this Court's previous finding that petitioner, after leaving the front line, served as a Taliban medic in two clinics and a hospital in Afghanistan. See Unclassified Mem. Op. 4-5, 16-17 [16]. He further highlights the Court's finding that he "likely did not engage in combat in Afghanistan." Id. at 15. Petitioner argues that these findings, coupled with additional evidence including his own declaration stating that he was a full-time medic--establish that he was permanently and exclusively engaged in medical work. Under the terms of the Convention, petitioner's evidence is insufficient. Nothing in today's opinion ignores or contradicts the Court's previous findings as to petitioner's work as a medic. But neither those findings nor petitioner's additional evidence can replace the proof required by the Convention--that is, official identification demonstrating that he is entitled to protected status under Article 24. Absent such identification, petitioner simply cannot prove that he qualifies as Article 24 personnel.