D.C. Circuit's Al Warafi Decision

In just over two weeks following oral argument, the D.C. Circuit today issued its opinion in Al Warafi v. Obama. The panel affirmed Judge Lamberth's decision in part, but also remanded in part. Al Warafi is the habeas merits case that raised, for the first time, questions about the scope of the government's detention authority in light of the Geneva Conventions' protections for medical personnel. Judges Ginsburg, Garland, and Williams agreed with the government that Al Warafi was more likely part of the Taliban at the time of his capture. What remains for Judge Lamberth to do on remand is to make a clearer finding about whether Al Warafi's service "as a medic on an as needed basis" brought him within the scope of Article 24 of the First Geneva Convention (precluding the government's authority to detain him), or rather within that of Article 25, which would not inhibit the government's detention power. The court went on:

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).