Habeas Litigation

Detainees at Guantanamo: Habeas Litigation in 2013

United States views on international law [1] in relation to Detainees at Guantanamo: Habeas Litigation: (1) Al Warafi v. Obama

On May 24, 2013, the U.S. Court of Appeals for the D.C. Circuit affirmed the district court's denial of a petition for habeas brought by Yemeni citizen Mukhtar Al Warafi. 716 F.3d 627 (D.C. Cir. 2013). The D.C. Circuit had previously remanded the case after the district court's first denial of the petition, directing the lower court to consider Al Warafi's claim that he should have been afforded protection as “medical personnel” pursuant to the First Geneva Convention. On remand, the district court determined that Al Warafi had not proven his status as medical personnel under Article 24 of the First Geneva Convention. The appeals court affirmed in an opinion excerpted below (with footnotes omitted).

Some Aspects of Detainees at Guantanamo: Habeas Litigation

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 water-resistant 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 authority.” (Emphases added.)

Developments

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, 409 Fed.Appx. 360.

Details

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.”

More

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.

More

The law of the case doctrine will not bear the weight Al Warafi places upon it. “The lawof-the-case doctrine bars us from considering only questions decided by this Court in this case.” Coalition for Common Sense in Government Procurement v. United States, 707 F.3d 311 (D.C.Cir.2013) (emphases added) (other emphasis omitted). See also LaShawn 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.

Detainees at Guantanamo: Habeas Litigation in 2013 (Continuation)

United States views on international law [1] in relation to Detainees at Guantanamo: Habeas Litigation: 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.

More about Detainees at Guantanamo: Habeas Litigation

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 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.”

Development

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.

Details

The court recalled that: ” '[O]nce the government puts forth credible evidence that the habeas petitioner meets the enemy-combatant 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, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality opinion)).

More

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.

Detainees at Guantanamo: Habeas Litigation

In relation to the international law practice and Detainees at Guantanamo: Habeas Litigation in this world legal Encyclopedia, please see the following section:

Use of Force, Arms Control, Disarmament, Nonproliferation

About this subject:

Use of Force

Under this topic, in the Encyclopedia, find out information on:

• Detainees
• U.S. court decisions and proceeding

Resources

Notes

1. Detainees at Guantanamo: Habeas Litigation in the Digest of United States Practice in International Law

Resources

Notes

1. Detainees at Guantanamo: Habeas Litigation in the Digest of United States Practice in International Law