D.C. Circuit Affirms Habeas Denial in Al Warafi

Judge David Sentelle wrote today's majority opinion in this long-running habeas case, in which Mukhtar Yahia Naji Al Warafi had claimed (among other things) that even if he was a Taliban member, he served the group as a permanent medic only.  This, argued the detainee, brought him within the coverage of Article 24 of the First Geneva Convention---a provision conferring special protections on medical personnel---and exempted him from law of war detention. The gist of the ruling is to affirm the district court's conclusion that, as a matter of fact, Warafi had not demonstrated that he worked as medical personnel under Article 24.  (In an earlier phase of the case, the district court had found that the detainee had twice served as a medic at Talban clinics, and worked at a hospital in Afghanistan.) Specifically, he hadn't carried an official armband and identification card---which the court deemed to be necessary, in order to establish Warafi's protected status as medical personnel.  From Judge Sentelle's opinion:

In the end, the question of whether Al Warafi has met his burden of establishing his status as permanent medical personnel entitled to protection under the First Geneva Convention is one of fact, or at least a mixed question of fact and law. Although the district court believed, and we agree, that military personnel without appropriate display of distinctive emblems can never so establish, it also found facts—e.g., the prior combat deployment—inconsistent with that role. These are findings of fact reviewed by us for clear error. See, e.g., American Soc. for Prevention of Cruelty to Animals v. Feld Entertainment, Inc., 659 F.3d 13, 19 (D.C. Cir. 2011). The evidence in the record gives credence to the view that Al Warafi is unable to provide the proof required under the Convention because he was not a medic.

Judge Janice Rogers Brown wrote a concurrence, regarding the detainee's unsuccessful effort to apply Hamdan v. Rumsfeld's analysis of Common Article 3 to other provisions of the Geneva Conventions.

BROWN, J., concurring: Emphasizing the Geneva Convention’s “strong mandatory language,” Op. 8, the panel’s opinion rejected Al Warafi’s proposed “functional” test in favor of the District Court’s “legal conclusion that the identification requirements of Article 24 constitute a sine qua non for protected status under Article 24,” Op. 7. “Without compliance with the requirements of the Geneva Conventions,” we concluded, “the Taliban’s personnel are not entitled to the protection of the Convention.” Op. 8. I write separately only to draw out the unstated significance of our holding.

In Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the Court interpreted Common Article 3 — so-called because it appears in all four Geneva Conventions — to “afford[] some minimal protection[] falling short of full protection under the Conventions” to members of Al Qaeda, id. at 631, “a transnational terrorist organization whose actions and actors do not fit existing legal norms and sanctions,” Fionnuala Ní Aoláin, Hamdan and Common Article 3: Did the Supreme Court Get It Right?, 91 MINN. L. REV. 1523, 1548 (2007). While it is not clear that the text and purpose of Common Article 3 will bear the weight the Supreme Court assigns to it, that question is now one for the academy, see, e.g., Ingrid Detter, The Law of War and Illegal Combatants, 75 GEO. WASH. L. REV. 1049, 1079–86 (2007), given we are duty bound to apply Hamdan in a manner consistent with its holding.

How Hamdan translates to present facts, however, may not be obvious. This case differs from the majority of detainee cases to have come before this court in one very significant way: the protections invoked emanate not from Common Article 3, but a specific, highly intertwined suite of Articles in the First Geneva Convention. Does Hamdan’s atextual and quixotic reading of the Common Article, we thus ask, provide a coherent framework for addressing and applying the Convention’s supplemental protections to the present detainee context? This point was certainly not lost on Al Warafi. In asking this court to forego the plain language of the Convention to adopt and apply a purely functional test to the “medic” status determination, Al Warafi pressed an interpretation divorced from the text that inures to the benefit of terrorists and other irregular forces. In other words, Al Warafi has effectively argued that the expansive interpretation of treaty language begun in Hamdan should now reverberate through every Article of the Geneva Convention — all protections, not just the minimum protections of Common Article 3, should be made accessible to terrorists and their ilk.1

Hamdan, of course, requires no such thing. The Court’s analysis focused on the specific jurisdictional language of Common Article 3, see Hamdan, 548 U.S. at 630–31, and the Article’s “important purpose,” id. at 631 (observing that “the commentaries also make clear ‘that the scope of application of the Article must be as wide as possible’ ”). This reasoning simply does not extend to Article 24 and the companion provisions.

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.

We'll have more commentary on the case up shortly. [This post was updated at 3:32]