Makhtar Al-Wrafie v. Barack Obama

Filing

OPINION filed [1437798] (Pages: 8) for the Court by Judge Sentelle, CONCURRING OPINION (Pages: 3) by Judge Brown [11-5276]

USCA Case #11-5276

Document #1437798

Filed: 05/24/2013

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 21, 2012

Decided May 24, 2013

No. 11-5276
MUKHTAR YAHIA NAJI AL WARAFI,
APPELLANT
v.
BARACK OBAMA,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-02368)

S. William Livingston argued the cause for appellant. With
him on the briefs were Brian E. Foster, Jason A. Levine and
David H. Remes. Alan A. Pemberton entered an appearance.
Lowell V. Sturgill Jr., Attorney, U.S. Department of
Justice, argued the cause for appellee. With him on the brief
were Tony West, Assistant Attorney General, and Douglas N.
Letter and Robert M. Loeb, Attorneys.
Before: BROWN and KAVANAUGH, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by SENTELLE, Senior Circuit
Judge.

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Concurring opinion filed by Circuit Judge BROWN.
SENTELLE, Senior Circuit Judge: Appellant Mukhtar Al
Warafi, a Guantanamo detainee, appeals from a judgment of the
district court denying his petition for a writ of habeas corpus. Al
Warafi argues that the district court erred in not affording him
protection due “medical personnel” under the First Geneva
Convention. Because the district court properly held that
appellant has not established that he was “medical personnel,”
it did not err in denying his petition, and we affirm for the
reasons set forth more fully below.
BACKGROUND
This is our second occasion to consider the habeas petition
of Mukhtar Al Warafi. The case began with habeas corpus
proceedings in the district court, which concluded with a
judgment against Al Warafi reported as Al Warafi v. Obama,
704 F. Supp. 2d 32 (D.D.C. 2010). Background facts of Al
Warafi’s detention and the district court’s rejection of his habeas
claim are set forth in the district court opinion. The district
court concluded that “petitioner was more likely than not part of
the Taliban,” and “is being lawfully detained.” Id. at 45.
Upon review, we affirmed the district court’s judgment in
part, but remanded for further proceedings with respect to a
single question. While our prior decision is brief and not
officially published, it is available electronically: Al Warafi v.
Obama, 2011 WL 678437 (D.C. Cir. 2011). We agreed with the
district court that “Al Warafi was more likely than not a part of
the Taliban.” Id. However, we directed the district court on
remand to develop a further record on Al Warafi’s fallback
position that “even if he was a part of the Taliban, the district
court should have granted his petition because he served

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permanently and exclusively as ‘medical personnel’ within the
meaning of Article 24 of the First Geneva Convention and
Section 3-15(b)(1)-(2) of Army Regulation 190-8.” Id.
Article 24 of the Geneva Convention for the Amelioration
of the Condition of the Wounded and Sick in Armed Forces in
the Field (Aug. 12, 1949), 6 U.S.T. 3114 (“First Geneva
Convention” or “Convention”), directs that “staff exclusively
engaged in the administration of medical units and
establishments . . . shall be respected and protected in all
circumstances.” Article 28 of the First Geneva Convention
declares that “[p]ersonnel designated in Article[ ] 24 . . . who
fall into the hands of the adverse Party, shall be retained only
insofar as the state of health, the spiritual needs and the number
of prisoners of war require.” The cited Army Regulation deals
with the treatment of “retained personnel,” including medical
personnel as described in Article 24. Al Warafi has argued
throughout this proceeding that he is within the category
protected by Article 24. Because the original district court
opinion denying his petition for a writ of habeas corpus did not
explicitly analyze this claim, we remanded in the unpublished
decision cited above.
On remand, the district court reconsidered Al Warafi’s
petition in light of our remanding order and concluded that the
petitioner had not “prove[d] that he qualifies as Article 24
personnel.” Al Warafi v. Obama, 821 F. Supp. 2d 47, 56
(D.D.C. 2011). Because we conclude that the district court is
correct, we affirm the second denial of Al Warafi’s petition for
habeas corpus.
ANALYSIS
Al Warafi has asserted that he qualifies as medical
personnel under the Geneva Conventions and Army Regulation

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190-8 and that he is therefore entitled to release. In Section 5 of
the Military Commissions Act of 2006, Congress provided,
among other things, that a detainee may not invoke the Geneva
Conventions in a habeas proceeding. However, Army
Regulation 190-8 expressly incorporates relevant aspects of the
Geneva Convention’s medical personnel protection. Army
Regulation 190-8 is domestic U.S. law, and in a habeas
proceeding such as this, a detainee may invoke Army Regulation
190-8 to the extent that the regulation explicitly establishes a
detainee’s entitlement to release from custody. Therefore, for
purposes of determining whether Al Warafi is entitled to release
as medical personnel under Army Regulation 190-8, we may
and must analyze the relevant aspects of the Geneva
Conventions that have been expressly incorporated into Army
Regulation 190-8.
The commentary to the First Geneva Convention declares
that Article 24 personnel “are to be furnished with the means of
proving their identity.” GC Commentary 218. Article 40 of the
First Geneva Convention mandates that “[t]he personnel
designated in Article 24 . . . shall wear, affixed to the left arm,
a water-resistant armlet bearing the distinctive emblem, issued
and stamped by the military authority.” In addition to
mandating the wearing of the armlet, Article 40 further declares
that “[s]uch personnel . . . shall also carry a special identity card
bearing the distinctive emblem.” That card “shall be waterresistant and of such size that it can be carried in the pocket.” It
further “shall be worded in the national language,” and include
the full name, date of birth, rank and service number of the
bearer, and “shall state in what capacity he is entitled to the
protection of the present Convention.” The Article further
requires that “[t]he card shall bear the photograph of the owner
and also either his signature or his finger-prints or both.” Just as
the armlet must bear the stamp of the military authority issuing
it, the card “shall be embossed with the stamp of the military

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authority.” (Emphases added.)
It is undisputed that Al Warafi wore no such armlet and
carried no such card. For that reason, in our remand order, we
stated that “it appears that Al Warafi bears the burden of proving
his status as permanent medical personnel.” Al Warafi v.
Obama, 2011 WL 678437.
On remand, the district court reviewed the evidence. The
court opined that the Convention created “a straightforward
regime in which proper identification is necessary to prove
one’s protected status as permanent medical personnel.” 821 F.
Supp. 2d at 54 (emphasis in original). In the end, the court
concluded that Al Warafi’s petition “will be denied.”
On appeal, Al Warafi argues, inter alia, that “the district
court’s holding that Article 24 status is conditioned upon
detainee having ‘official identification’ is inconsistent with this
Court’s remand order . . . .” The argument proceeds that
because this court, in our earlier remand decision, stated that we
knew that Al Warafi had no identification card or armlet at the
time of capture, but nonetheless remanded for further
consideration on the question of whether Mukhtar “was
permanently and exclusively engaged as a medic,” we were, in
effect, establishing the law of the case that the lack of such
identification did not deprive petitioner of the ability to establish
his status by other evidence. We do not accept Al Warafi’s
argument.
The law of the case doctrine will not bear the weight Al
Warafi places upon it. “The law-of-the-case doctrine bars us
from considering only questions decided by this Court in this
case.” Coalition for Commonsense in Government Procurement
v. United States, — F.3d —, 2013 WL 45880 (D.C. Cir. 2013)
(emphases added) (other emphasis omitted). See also LaShawn

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A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en banc)
(“The same issue presented a second time in the same case in the
same court should lead to the same result.” (emphases omitted)).
While this is the same question in the same court, we did not
decide the question in the unreported order upon which Al
Warafi relies. Concededly, the unpublished order is consistent
with his interpretation, but it is also consistent with a court
which remained agnostic as to the question at issue. Again, we
did not decide the question. We left the question open and
remanded the case to the district court for further development.
On remand, the district court reinstated its prior decision with
further discussion of the determinative question, and an apparent
firm conviction that other evidence could not substitute for the
indicia of medical personnel status recited in the Convention and
in the Army Regulation. Upon review, we agree with the
district court.
As we noted above, the Convention speaks in mandatory
terms. As relevant to this case, and as noted by the district
court, the First Geneva Convention protects personnel who are
“[m]edical personnel exclusively engaged in the search for, or
the collection, transport or treatment of the wounded or sick, or
in the prevention of disease, [and] staff exclusively engaged in
the administration of medical units and establishments.” The
commentary to the Convention expressly provides for the
identification elements we set forth above. It does so in
mandatory terms. See First Geneva Convention Commentary
219. Neither the Convention nor the commentary provide for
any other means of establishing that status.
The Geneva Conventions and their commentary provide a
roadmap for the establishment of protected status. As the
district court found, Al Warafi was serving as part of the
Taliban. The Taliban has not followed the roadmap set forth in
the Conventions, and it has not carried Al Warafi to the

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destination. We hold that without the mandatory indicia of
status, Al Warafi has not carried his burden of proving that he
qualified “as permanent medical personnel.”
While not necessary to its decision, the district court, in
addition to its legal conclusion that the identification
requirements of Article 24 constitute a sine qua non for
protected status under Article 24, found as fact that petitioner
had been stationed in a combat role before serving in a clinic.
The court further found that “[p]etitioner was captured with a
weapon.” 821 F. Supp. 2d at 49. It reiterated its earlier finding
that it was more likely than not that Al Warafi was part of the
Taliban. The court further reiterated the well-established law
that in habeas proceedings such as this, the government bears
the burden “to prove that petitioner’s detention is lawful.” That
is, the government must prove “‘that petitioner more likely than
not was part of the Taliban’ at the time of his capture.” 821 F.
Supp. 2d at 53 (citing Al-Bihani v. Obama, 590 F.3d 866, 872
(D.C. Cir. 2010)). The court renewed its conclusion that the
government had met that burden.
The court recalled that: “‘[O]nce the government puts forth
credible evidence that the habeas petitioner meets the enemycombatant criteria, the onus could shift to the petitioner to rebut
that evidence with more persuasive evidence that he falls outside
the criteria.’” 821 F. Supp. 2d at 53–54 (quoting Hamdi v.
Rumsfeld, 542 U.S. 507, 534 (2004) (plurality 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

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—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.
We would further emphasize that given the strong
mandatory language of the Convention, we affirm the district
court’s decision. As the district court stated:
Nothing prevents parties like the Taliban from providing
medical personnel with the identification materials
mandated by Article 40. But until they do so, their medical
personnel will lack the means by which they can prove their
entitlement to Article 24’s protections.
821 F. Supp. 2d at 56. Without compliance with the
requirements of the Geneva Conventions, the Taliban’s
personnel are not entitled to the protection of the Convention.1
CONCLUSION
Because appellant has not established that he was “medical
personnel” as defined in the Geneva Conventions, and because
all other issues have been determined in the previous
proceedings, we affirm the judgment of the district court
denying the petition for writ of habeas corpus.
So ordered.

1

We note that we are not addressing the conceivable
circumstance in which a detainee claiming medical personnel status
offers evidence that he had been issued the necessary identifiers but
was deprived of them by his captors or inadvertence.

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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 dutybound 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

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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
1

There was a suggestion at oral argument that as the de facto
government of Afghanistan, a signatory to the Geneva Convention,
the Taliban should also be accorded signatory status. Because Al
Warafi has failed to produce the requisite indicia of protected
status, however, we need not reach the vexing questions whether Al
Warafi was a member of a transnational terrorist organization or the
armed forces of a High Contracting Party, and if the former,
whether he is categorically barred from invoking the supplemental
protections of Article 24.

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(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.

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