I had to restrain myself this morning at the D.C. Circuit from interrupting proceedings with an emergency request for an on-the-spot ruling in Wittes v. FAA---a case which has admittedly does not exist---that the agency’s action with respect to the Lawfare Drone Smackdown is arbitrary and capricious. Restrain myself I did, for the issue of the day was not my travails with aviation regulators but the travails of Mr. Mukhtar Yahia Naji Al Warafi, whose case was before Chief Judge David Sentelle and Judges Brett Kavanaugh and Janice Rogers Brown.
I suspect the panel may have been friendlier to my claim than it was to Mr. Al Warafi’s.
Mr. Al Warafi, you’ll recall, is the Guantanamo detainee who claims to be exempt from detention as a full-time Taliban medic. This is actually the second time his case has come to the Court of Appeals. Judge Royce Lamberth initially denied his habeas petition on grounds that he was part of Taliban forces and, though engaged in some medical activity, not exempt from detention under Article 24 of the First Geneva Convention. The D.C. Circuit affirmed Al Warafi’s Taliban affiliation but remanded the case for clearer findings concerning whether Al Warafi qualified as full-time medical personnel (and was therefore exempt from detention) or only served “as needed” as a medic (and would therefore be lawfully detained). Judge Lamberth then ruled on remand that Al Warafi did not qualify---noting that he carried no identification as a medic and did not wear an armband identifying himself as one either, and that the Taliban did not even have a regular corps of designated medics.
Now the case is back, and S. William Livingston, arguing for Al Warafi, has to convince three skeptical judges that Judge Lamberth got it wrong. He gets off on the wrong foot almost immediately with the ever-grouchy Judge Sentelle, when he starts with a recitation of the procedural history I’ve just outlined. Sentelle lets him go long enough to get annoyed, and then asks him if he can get to this case, rather than the last one.
Livingston notes that the government is making the same argument as it did the first time around---not that Al Warafi wasn’t a medic but that he wasn’t a full-time medic. Sentelle responds that it’s not the same case; there’s a different record. But Livingston does not accept that. Judge Lamberth, he notes, ruled that Al Warafi was a part-timer on grounds that he didn’t have an ID card and didn’t wear an armband. But the first D.C. Circuit panel knew that when it ruled. And it said, based on these same facts, that Al Warafi would bear the burden of proof in demonstrating that he was, in fact, a full-time medic. If those facts disposed of the entire case, as Judge Lamberth now says, there would have been no need for a remand. So that issue, he says, has already been decided. Article 24, Livingston says, does not require an armband or an ID. It requires that the person be exclusively engaged in medical activity.
But, Judge Sentelle asks, how is a detaining nation to know someone is exclusively engaged in medical activity if he doesn’t carry an ID or wear an armband? Livingston responds, there has to be a sorting out process, and the armband and ID normally play a role in that. Here, by contrast, the sorting out process took place by different means---but it did take place. Judge Lamberth found that Al Warafi was a medic working in hospitals and clinics. He found this on the basis of Al Warafi’s statements and his screening form at the time of his capture. He was working as an assistant to one Dr. Aziz. While the armband and ID play an important role in making sure medics don’t get shot, he argues, they do not make the medic.
Judge Kavanaugh here notes that there are a combination of factors undermining Al Warafi’s claim to full-time medic-hood. It’s not just the lack of an ID and the lack of an armband. It’s also the fact that the Taliban didn’t have a designated medical corps at all.
Livingston agrees that the Taliban lacked an established medical corps in the sense that the U.S. military has one, and he agrees that this is in some sense a deficiency of the Taliban. But he rejects the idea that this should be held against his client. The implication, he notes, is that nobody would be entitled to Article 24 protection on the Taliban side---and that can’t be right.
Why not? asks Judge Sentelle. It is possible, isn’t it, that nobody on the Taliban side qualifies for this sort of protection? Livingston unsurprisingly does not accept this. Certainly, he says, the Taliban does not have a medical corps like ours. But Article 24 does not require as a condition of protection that detainees be in a medical corps like ours. It requires only that people be exclusively engaged in medical activity. And the Taliban certainly had people---Al Warafi included---who were doing nothing but caring for the sick and injured. So the Taliban’s lack of a formal medical corps can’t be the end of the story, he says.
But, Judge Kavanaugh pushes, when you add to it the specific facts of this case---that he had no armband or ID---it sure seems to look as though he was not designated as a full-time medic. Livingston says he rejects the notion that Al Warafi was not designated as a medic.
Judge Lamberth, he argues, specifically held that he was part of the command structure of the Taliban. In that capacity, the judge also found that he worked at clinics and in a hospital. If he were not part of the command structure, Livingston goes on, then he would have been a civilian---as we argued. But having found that he was part of the command structure of the Taliban and assigned to work in these facilities, that constitutes a finding that there had been a designation of a person whose job it is to work in a clinic assisting a doctor. Is it a formalistic designation, like we have in the United States? No. But is it established? Yes. If you have workers providing medical services on a full-time basis, they are entitled to protection under Article 24.
Judge Sentelle pushes Livingston on this point. Isn’t this really a question of burden of proof, he asks? If U.S. forces go into a hospital and detain a bunch of soldiers, you can’t be suggesting that they simply have to release everyone who announces he’s a full-time medic. What if he’s also available to drive a truck for combat? Whose burden is it to establish whether he’s really working full-time as medical personnel?
Livingston acknowledges that Judge Lamberth placed the burden on Al Warafi. And yet, he notes, he still found that he was engaged exclusively in medical activity. So, Livingston concludes, it really doesn’t matter who has the burden. His client should win either way.
He tries to go on, but Judge Sentelle informs him that his time is up.
Lowell V. Sturgill Jr. rises for the government and declares that Article 24 gives permanent exclusive medics special status and privileges---including limitations on the right of the opposing party to detain them. The quid pro quo for this special treatment, he notes, is that these medics have to be designated as exclusively and permanently medical personnel and trained not to engage in hostile acts.
Judge Kavanaugh asks him whether the Taliban had any such people. Sturgill responds that on this record, the answer is no. Judge Lamberth found that the Taliban had no practice of designating permanent exclusive medical personnel. That is not a clear error, he argues, and it precludes the holding Al Warafi seeks. But what if, Judge Kavanaugh, persists, the evidence pointed to full-time exclusive medical activity in the absence of such a designation? You don’t need to answer that question, Sturgill insists. You can rule more narrowly.
Judge Kavanaugh is amused. Your proposed holding---that no Taliban can ever qualify for Article 24 protection---is hardly narrow, he says. Sturgill agrees, noting that the narrower grounds would be to rule on the basis of the armband and the ID. Judge Kavanaugh corrects him again. The narrowest grounds, he says, is to rule on the basis of the totality of the facts---the specific facts in this case and the general failure of the Taliban to designate full-time medics. Sturgill yields again. He’d clearly be content to win with such a holding.
He notes that protected medical personnel are supposed to be debarred from combat, that they occupy a quasi-neutral status that is above and beyond the conflict. Al Warafi, by contrast, received weapons training, was assigned to a combat unit, and was picked up with other Taliban fighters after surrendering on orders from a Taliban commander. Does this sound like someone who is above and beyond the conflict? On the other side, all the court has is his own declaration that he was a full-time medic, but even that doesn’t suggest a formal declaration that he was exclusively and permanently medical personnel. Al Warafi is urging, Sturgill goes on, the court to adopt a functional analysis of the role that he played. But that approach would obliterate the distinction between a full-time medic and an as-needed medic. A full-timer and a part-timer, after all, might work side by side. How could you know in detaining them both who was protected and who was not?
Judge Brown now speaks up for the first time, asking whether it’s possible to translate these provisions---which were clearly written with conventional state-to-state conflict in mind---for circumstances of non-traditional, asymmetric warfare. Sturgill does not want to go there. Even if you take the requirements of Article 24 verbatim, he says, and apply them, Al Warafi can’t qualify.
Judge Sentelle notes that this statement does not answer Judge Brown’s question. And Sturgill good-naturedly says that it was a roundabout way of saying that he does not think the court should address that question in this case. Judge Sentelle responds that the application of the laws of war to asymmetric conflict is a difficult area. And Sturgill says that’s precisely why he doesn’t think the court should dive into the general subject unnecessarily.
Judge Kavanaugh comes back with a question that could not have been better designed to warm the hearts of Marty Lederman and Steve Vladeck. Isn’t it now clear, he asks, after the NDAA that the laws of war not only inform U.S. detention authority but constrain it in a judicially enforceable fashion? Sturgill avers that this too is a question the court should not reach. But, Kavanaugh pushes, do you have a position on it? Sturgill says that the government hasn’t taken one yet.
Judge Sentelle responds that if the court doesn’t address it in this case, it will have to address it soon. But Sturgill pushes back. The matter is not briefed here. The court should wait for a case in which it is briefed.
Judge Kavanaugh notes that the NDAA language seems pretty clear on its face. And this prompts Sturgill to show a little leg: One way to understand it, he says, is that it codifies the pre-existing detention authority. Or, at least, Kavanaugh says, it was intended to. Sturgill reverts to his prior statement that the government hasn’t taken a position on this yet---and asks the court not to either. Responds Judge Sentelle: In other words, you’re not authorized to give an answer.
Livingston rises for a brief rebuttal. This is not asymmetric warfare, he notes. The Taliban was the government of Afghanistan, which is a signatory to the Geneva Conventions.
Judge Sentelle concedes the point. But given that it’s not asymmetric war, he notes, it’s not unreasonable to expect Taliban medics to be carry ID cards and wearing armbands.
That’s not a requirement of the treaty, Livingston reiterates. There is no evidence that contradicts our evidence that Al Warafi was exclusively engaged in medical service. There is nothing in the convention requiring that a country have a designated medical corps.
My client, he concludes, has been in jail for more than ten years. And he is in jail now because he did not have a piece of paper in his pocket or a piece of cloth on his arm. Law and justice, he concludes, require that the writ be granted in this case.