UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FiJed with Classificd ) Infonnation Security Officer MUKHTAR VARIA NAJI AL W ARAFI (ISN 117), ) ) CISO 2/'t2tZ;Z ) Date 9/llll Petitioner, ) ) v. ) Civil Action No. 09-2368 (RCL) ) BARACK OBAMA, et al., ) ) Respondents. ) )
MEMORANDUM OPINION
This case is before the Court on remand from the United States Court of Appeals
for the District of Columbia Circuit. The Court is to consider only one issue here-
whether petitioner was permanently and exclusively engaged as a medic within the
meaning of Article 24 of the First Geneva Convention and § 3-1S(b)(1}-(2) of Army
Regulation 190-8. Upon consideration of the parties' briefs on remand, the replies
thereto, the applicable law, and the entire record herein, the Court will GRANT
respondents' Renewed Motion on Remand for Judgment on the Record and DENY
petitioner's petition for a writ of habeas corpus.
I. PROCEDURAL BACKGROUND
On March 24, 2010, this Court denied petitioner Mukhtar Al Warafi's habeas
petition. Based on its review of the evidence as a whole, the Court concluded that
petitioner was more likely than not part of the Taliban at the time of his capture. See
Unclassified Mem. Op. 12-19 [16]. In reaching this conclusion, the Court found that
petitioner "more likely than not served as a medic on an as needed basis within the
8MiUtI!iT/:SP1WFWllff 1
command structure of the Taliban." ld. at 16. Petitioner argued in the alternative that
even if he was part of the Taliban, he is not detainable because he was permanently and
exclusively engaged as a medic under Article 24 of the First Geneva Convention. The
Court rejected that argument under § 5 of the Military Commissions Act, which provides
that "[n]o person may invoke the Geneva Conventions ... as a source of rights" in a
habeas proceeding. ld at 19 (citing Pub. L. No. 109-366, § 5, 120 Stat. 2600, 2631
(codified at 28 U.S.C. § 2241 Note)). The Court thus held that its determination that
petitioner was more likely than not part of the Taliban ended its inquiry into whether
petitioner's detention is lawful.
On February 22, 2011, the Court of Appeals affirmed this Court's holding that
petitioner was more likely than not part of the Taliban at the time of his capture.
Judgment 1 [39]. The Court of Appeals noted, however. that the Court "did not explicitly
address whether Al Warafi was permanently and exclusively medical personnel within
the meaning of Article 24 of the First Geneva Convention and Army Regulation 190-8, §
3-15(b)(1}-(2), assuming arguendo their applicability." ld The Court of Appeals was
uncertain whether the Court's conclusion that petitioner more likely than not served as a
medic on an as needed basis "was tantamount to finding that Al Warafi served only as
auxiliary medioal personnel within the meaning of Article 25 of the Convention," or
whether that conclusion related only to the Court's determination that At Warafi was part
of the Taliban. ld. at 2. The Court of Appeals thus remanded the case to this Court to
"consider (or reconsider) Al Warafi's argument that he was permanently and exclusively
engaged as a medic and to make a finding on this issue." ld. On August 26,2011, having
received the parties' briefs and reply briefs, this Court held a merits hearing on the issue.
8'@l!MiJ"jlIf8'8I\H 2
UNCLASSIFJEDIIFOR PUBLIC RELEASE
II. RELEVANT FACTUAL BACKGROUND
A. Evidence Previously Submitted to the Court
The Court need not provide a complete factual background here, as such
information can be found in its Memorandum Opinion denying petitioner's habeas
petition. See Unclassified Mem. Op. 2-6 [16]. For the narrow purposes of this opinion, it
suffices to restate the relevant factual findings that the Court made in determining that
petitioner was more likely than not part of the Taliban. The Court of Appeals has
affirmed these findings, and thus they are the law of the case.
After weighing the evidence in the record-namely, reliable statements that
petitioner himself made to his interrogators-the Court found that petitioner more likely
than not traveled to Afghanistan for the purpose of fighting with the Taliban against the
Northern Alliance. Id at 3, 13-14. The Court further found that petitioner went to the
Khoja Khar line--the front line where the Taliban was fighting the Northern Alliance
with the help of officials at a Taliban center in Quetta, Pakistan. Id at 14-15. On the
basis of the record, the Court concluded that petitioner more likely than not went to the
front line to fight against the Northern Alliance and that he more likely than not received
weapons training there. Id The Court also found, however, that "petitioner likely did not
engage in combat in Afghanistan." !d. at 15; see also id. at 4 (stating that petitioner
received weapons training but did not engage in any active combat).
The Court then found that petitioner, after spending one to two weeks on the front
line, volunteered for medic training when a superior asked for volunteers. Id. at 4, 16-17.
The Court found, and respondents did not dispute, that petitioner worked in two clinics
run by Dr. Abdullah Aziz, a Saudi doctor. Id. at 16. Petitioner was first transferred to a
clinic in Dastareshi, located approximately twenty miles from the Khoja Khar line, for
first aid training. Id. at 4,16-17. Dr. Aziz taught petitioner how to clean wounds, draw
blood, and recognize the symptoms of malaria. Id at 4. Petitioner remained there for
approximately twenty-five days and treated six to seven sick or wounded Taliban fighters
per day. Id. When the Northern Alliance advanced toward the Khoja Khar line, he was
transferred to Dr. Aziz's clinic in Konduz. Id at 4, 17. After one month of treating
Taliban fighters there, petitioner left to work at a hospital because the area in which the
clinic was located had become too dangerous as the Northern Alliance advanced toward
Konduz.ld at 4-5.
In making the above findings, the Court considered petitioner's argument that he
immediately went to work for Dr. Aziz in Konduz upon arriving in Afghanistan.
Petitioner claimed that he then worked at the Dastereshi clinic before returning to the
Konduz clinic. Id. at 16. The Court rejected these assertions, finding them contrary to
petitioner's prior reliable statement that he had been stationed on the Khoja Khar line
before serving in a clinic. Id.
In November 2001, the Taliban agreed to surrender to coalition forces. Id. at 5,
18. As part of the surrender, petitioner's Taliban commander, Thakker, negotiated a safe
passage from Konduz to Kandahar via Mazar-e-Sharif for the troops under his command.
Id. at 5, 18. The Court found that both petitioner and Dr. Aziz were with Thakker's troops
when they were captured by the Northern Alliance outside of Mazar-e-Sharif. Id. at 5, 18.
Petitioner was captured with a weapon, which he was forced to surrender, and transported
to Qala-i-Jangi prison with Thakker's troops. Id. at 18. On the basis of the record, the
81ii!@M'flJlffepeMf 4
UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEOIIFOR PUBLIC RELEASE
Court concluded that petitioner more likely than not went to surrender at Mazar-e-Sharif
on Thakker's orders.ld. at 19.
B. Additional Evidence on Remand
Pursuant to the Court's scheduling order on remand, the parties have submitted
additional evidence on the issue of whether petitioner served as permanent and exclusive
medical personnel within the meaning of Article 24 of the First Geneva Convention.
Petitioner has produced a declaration-his second declaration in this case-in which he
states: "Starting before American bombing in Afghanistan and continuing until I was
captured and taken to Mazer-e-Sharif, I was a full-time medical worker under the
supervision of a Saudi doctor, Dr. Abdul Aziz." Pees Br. on Remand Ex. R ("Second
Decl."). Petitioner claims that he "performed no military duties and had no military
responsibilities" during this period. Id. He states that he "worked with Dr. Aziz from
early morning to the afternoon every day," except that he "stopped at noon on Thursdays
and did not work on Fridays." Id. Petitioner further states that he lived with Dr. Aziz
while working under his supervision in Konduz in a house that was "next to the clinic ...
so it was convenient to go to and from work." Id I
The government has produced, among other documents, the declaration o f .
See Resp'ts Renewed Mot., Additional Ex. 1
I Petitioner notes that Dr. Aziz, "[tJhe person in the best position to describe his medical work," was killed by the Northern Alliance in November 2001 after petitioner and Dr. Aziz surrendered. Pet. Br. on Remand 6; see also Unclassified Mem. Op. 5 [16].
UNCLASSIFIEOIIFOR PUBLIC RELEASE
III. LEGAL FRAMEWORK
The President has authority under the Authorization for Use of Military Force
(AUMF), Pub. L. lO7-40, § 2(a), 115. Stat. 224 (2002), to detain individuals who were
part of or substantially supported al-Qaeda, the Taliban, or associated forces engaged in
SE:CltE:'tVIN8F8ltPf 6
hostilities against the United States or its coalition partners. Ai-Bihan; v. Obama, 590
F.3d 866,873-74 (D.C. Cir. 2010). As the government conceded on appeal, its detention
authority under the AUMF is infonned by the laws of war. See Resp'ts Renewed Mot. 12
n.7, 23. For the purposes of this proceeding, the relevant provisions of the First Geneva
Convention and Anny Regulation 190-8, both of which bar the detention of certain
medical workers, are outlined below.
A. The First Geneva Convention
The First Geneva Convention governs, among other things, the treatment and
protection of military medical personneL See Geneva Convention for the Amelioration of
the Condition of the Wounded and Sick in Anned Forces in the Field (Aug. 12, 1949), 6
U.S.T. 3114 ("First Geneva Convention"). It protects two distinct categories of military
medical personnel, defined respectively in Articles 24 and 25. Article 24 personnel are
"[mJedica1 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." fd art. 24 (emphasis
added). The Convention provides that such personnel "shall be respected and protected in
all circumstances." fd Under Article 28, "[p]ersonnel designated in Article[] 24 ... shall
be retained only in so far as the state of health ... and the number of prisoners of war
require." fd. art. 28. If Article 24 personnel are not needed to take care of prisoners of
war, they "shall be returned to the Party to the conflict to whom they belong. as soon as a
road is open for their return and military requirements penn it." fd. art. 30.
It is precisely because Article 24 personnel are assigned exclusively to medical
duties that they are afforded "special immunity, even on the battlefield." First Geneva
Convention Commentary (hGC Commentary") 219 (InC I Comm. of Red Cross).
Although "[i]t is for each power to decide the composition of its Medical Services and to
say who shall be employed in it," only those who are exclusively engaged in the
provision of medical services are "assured of protection." Id. at 218. "The words
'exclusively engaged' indicate that the assignment must be permanent," which-as
discussed below-"is not the case in Article 2S dealing with auxiliary personneL" Id at
219. Indeed, "to enjoy immunity, [Article 24 personnel] must naturally abstain from any
form of participation-even indirect-in hostile acts." ld at 221. The protection to which
they are entitled "ceases ifthey are used to commit acts 'harmful to the enemy.'" [d.
The Commentary to the Convention provides that Article 24 personnel "are to be
furnished with the means of proving their identity provided for in Article 40." GC
Commentary 218. Article 40, in tum, sets forth the manner in which a military authority
must identifY Article 24 personnel. Specifically, such personnel "shall wear, affixed to
the left arm, a water-resistant armlet bearing the distinctive emblem, issued and stamped
by the military authority." First Geneva Convention, art. 40 (emphasis added). Such
personnel "shall also carry a special identity card bearing the distinctive emblem." Id
(emphasis added). These materials are intended to distinguish Article 24 personnel,
providing them with security during hostilities and enabling them to prove their protected
status if captured. See GC Commentary 312-15.
The Convention and its Commentary describe a number of criteria regarding the
armlet and identity card that a military authority must provide to Article 24 personnel. As
to the armlet, "[w]hat is above all essential is to ensure the 'bonafides' of the wearer." Id
at 310. Accordingly, the "armlet will have no protective value, and cannot be lawfully
worn, unless it has been stamped and issued by the military authority. This time the
condition is an essential one, admitting of no exception." ld. at 311. The official stamp
"show[s] that the armlet has been issued by, and on the responsibility of, the military
authority," and is thus intended to "prevent abuses" by those not entitled to Article 24
status. ld. The Commentary further provides, however, that the "armlet is not in itself
sufficient to establish the status of the wearer. If he falls into enemy hands, he must be
able to prove that he is entitled to wear it." Id. at 312 (emphasis added). Accordingly, a
"special identity card is . . . necessary" to put a detained individual "in a position to
prove that he is a member of the medical or religious personnel, in order that he may
enjoy the status accorded to him under the Convention." [d. (emphasis added). Article 40
describes the required features of this card-namely, that the card "shall state in what
capacity [the individual] is entitled to the protection of the present Convention." First
Geneva Convention, art. 40. Additionally, the card "shaH be embossed with the stamp of
the military authority." [d. This "condition imposed by the Convention is the most
important [because] . . . Lilt is this stamp which makes the card, like the armlet,
authentic." GC Commentary 315.
Article 25 personnel2-or "auxiliary medical personnel"-are those "[m]embers
of the armed forces specially trained for employment, should the need arise, as hospital
orderlies, nurses or auxiliary stretcher-bearers, in the search for or the collection,
transport or treatment of the wounded and sick." First Geneva Convention, art. 25
(emphasis added). In contrast to Article 24 personnel, who are "permanent staff ...
employed exclusively on medical duties," Article 25 personnel are "only employed for
2The question of whether petitioner qualifies as Article 25 personnel is not before the Court, as he has never claimed such status.
part of their time on such duties." GC Commentary 221. Such personnel "are, when
necessary-that is to say, occasionally--used by their officers" to care for the wounded.
ld (emphasis added). They are otherwise available to be "assigned to other military
duties" for the remainder of their time. ld Article 25 personnel are thus considered
"semi·combatant [and] semi·medical." ld at 223. While Article 24 personnel receive
protection under the Convention at all times, Article 25 personnel receive protection only
if "they are carrying out [medical] duties at the time when they come into contact with
the enemy or fall into his hands." First Geneva Convention, art. 25.
B. Army Regulation 190-8, § 3-15
United States Army Regulation 190-8, § 3-15 describes those enemy personnel
who are eligible to be certified as "retained personnel"-that is, personnel who "will be
retained only insofar as the state of health ... and the number of [enemy prisoners of
war] require. Persons whose retention is not required will be repatriated as soon as
military requirements permit." Army Regulation 190-8, §§ 3-15(b), (w). Two categories
of medical personnel are eligible to be certified as retained personnel:
(1) Medical personnel who are members of the medical services of their armed forces. (2) Medical personnel who are exclusively engaged in: (a) The search for or the collection, transport, or treatment of the wounded or sick. (b) The prevention of disease. (c) Staffs exclusively engaged in administering medical units and establishments.
ld. § 3-15(b)(1 )-(2) (emphasis added). Individuals who are entitled to retained status
"should have on their person at the time of capture a special identity card attesting to
their status . .. [that] state[s] in what capacity the bearer is entitled to the protection" of
8tS@fttS"fJlffepeIUf to UNCLASSIFIEDIIFOR PUBLIC RELEASE
the Geneva Conventions. fd § 3-15(a) (emphasis added). This requirement applies to
both categ?ries of medical personnel described above. See id. § 3-15(a)-(b).
As the government notes, Army Regulation 190-8 merely constitutes the
Executive Branch's implementation the 1949 Geneva Conventions. See fd. § 1-1(b). It
provides the "policy, procedures, and responsibilities" for the treatment of enemy
personnel in the custody of the U.S. Armed Forces, id. § 1-1(a), and expressly states that
"[i]n the event of conflicts or discrepancies between this regulation and the Geneva
Conventions, the provisions of the Geneva Conventions take precedence." ld. § 1-1 (b)(4).
IV. DISCUSSION
As noted above, this Court previously held that § 5 of the Military Commissions
Act bars petitioner from invoking the Geneva Conventions as an independent source of
rights in his habeas proceeding. But per the Court of Appeals' instruction, the Court is to
assume for purposes of this remand proceeding that Article 24 of the First Geneva
Convention and Army Regulation 190-8 apply. Respondents, while taking no position on
the extent to which the Geneva Conventions inform the AUMF, see Resp'ts Renewed
Mot. 24,29, argue that petitioner has not shown that he was permanently and exclusively
engaged as a medic within the meaning of Article 24.3 Petitioner argues to the contrary,
and thus contends that Article 24 and Army Regulation 190-8, § 3-15(b)(1)-(2) render his
detention unlawful. Petitioner relies on (1) this Court's factual fmdings in denying his
habeas petition; (2) additional evidence-disclosed by respondents after the Court of
Appeals rendered its decision-which petitioner argues demonstrates that he was
3 Respondents' arguments focus primarily on Article 24 of the First Geneva Convention. As respondents explain, the Geneva Conventions take precedence over Army Regulation 190-8 in the event of conflict between the two documents. See Army Regulation 190-8, § I-J(b)(4). For this same reason, the Court will focus its analysis on Article 24.
engaged as a full·time medic once he began working with Dr. Aziz; and (3) the
declaration he has submitted on remand.
A. Petitioner Bears the Burden of Proving His Status as Permanent Medical Personnel Entitled to Protection under Article 24 or Army Regulation 190-8
In its mandate to this Court, the Court of Appeals suggested in dictum that
petitioner bears the burden of proving that he is entitled to protection under Article 24 or
Anny Regulation 190·8: "Because he did not carry an identification card or wear an
armlet bearing the emblem of the Medical Services at the time of his capture, it appears
that Al Warafi bears the burden of proving his status as permanent medical personnel."
Judgment 2 [39]. Petitioner disagrees, arguing that neither the First Geneva Convention
nor Army Regulation 190-8 address the burden of proof in judicial proceedings.
Petitioner points to the Case Management Order that governs Guantanamo habeas
proceedings, which provides that "[tJhe government bears the burden of proving by a
preponderance of the evidence that the petitioner's detention is lawful." Case
Management Order § ILA, Misc. No. 08~442 (TFH), Nov. 6, 2008 [940]. He argues that
his detention is unlawful if he qualifies as non-detainable medical personnel under Article
24 or Army Regulation 190-8. Thus, petitioner argues, it is respondents' burden to prove
that he falls outside the protection ofthose provisions.
The Court rejects petitioner's contention. There is no question that it was
respondents' burden to prove that petitioner's detention is lawful-that is, "that petitioner
more likely than not was part of the Taliban" at the time of his capture. Unclassified
Mem. Op. 8 [16]; see also Al-Bihani, 590 F.3d at 872 (explaining that the government
may lawfully detain an individual who was part of or supported the Taliban). But this
Court has already held that petitioner was more likely than not part of the Taliban, and
UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE
the Court of Appeals has affirmed that holding. Petitioner now claims Article 24 status
not to contest that holding-indeed, he cannot do so under the law of this case-but to
demonstrate that he is exempt from detention notwithstanding that he was part of the
Taliban. As the Supreme Court has explained in the context of Guantanamo habeas
proceedings:
[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. A burden shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove miJitary error while giving due regard to the Executive once it has put forth meaningful support for its conclusions that the detainee is in fact an enemy combatant.
Hamdi v. Rumsfeld, 542 U.S. 507, 534 (2004) (plurality opinion). Because respondents
have already met their burden of proving that petitioner was part of the Taliban at the
time of his capture, the burden has shifted to petitioner to prove that he is nevertheless 4 exempt from detention under Article 24 or Army Regulation 190-8.
B. Petitioner Fails to Prove His Status as Permanent MedicaL Personnel EntitLed to Protection under Article 24 or Army Regulation J 90-8
The Court finds that petitioner has failed to prove his status as permanent medical
personnel within the meaning of Article 24 of the First Geneva Convention or Army
Regulation 190-8. As described above, Article 24 personnel "are to be furnished with the
means of proving their identity." GC Commentary 218. To that end, Article 40 mandates
that Article 24 personnel "shall wear . .. an armlet bearing the distinctive emblem" and
"shall also carry a special identity card bearing the distinctive emblem." First Geneva
Convention, art. 40. The Convention regards proper identification as a "valuable" means
4 The question of who has the burden of proof here is academic. Even if the burden were on respondents, the evidence in the record and the applicable law would compel the same outcome in this case.
of "prevent[ing] abuses" by persons ineligible for Article 24 status who might otherwise
impersonate medical personnel to exploit the Convention's protections. GC Commentary
311; see id. (stating that there is "no exception" to the requirement that the military
authority stamp and issue the armlets required by Article 40); id. at 315 (setting forth the
"most important" condition that identity cards contain the stamp of the official authority).
Proper identification is thus required not only to protect medical personnel on the
battlefield, but to establish their status if captured. Id. at 310. Notably, the Commentary
provides that an anniet alone is insufficient to prove the wearer's status; rather, an
identity card is "necessary" to put a detained individual "in a position to prove that he is a
member of the medical ... personnel, in order that he may enjoy the status accorded to
him under the Convention." Id. at 312; see also First Geneva Convention, art. 40 ("The
card.... shall state in what capacity [the detained individual] is entitled to the protection
ofthe present Convention.").
Simply put, the First Geneva Convention creates a straightforward regime in
which proper identification is necessary to prove one's protected status as permanent
medical personnel. The Court finds no language in either the Convention or its
Commentary admitting any exception to this requirement. 5 Nowhere does the Convention
suggest other means by which a detained individual can prove his protected status.
Instead, the Convention contemplates that identification is necessary and thus focuses
entirely on the means of ensuring that such identification is authentic. The Convention's
identification requirements are neither surprising nor onerous. Given that' Article 24
S Petitioner argues that the Court of Appeals, in remanding his case to this Court while noting that he "did not carry an identification card or wear an armlet bearing the emblem of the Medical Services at the time of capture," Judgment 2 [39], necessarily found that the lack of such identification does not preclude Article 24 status. But the Court of Appeals made this observation in dicta, and there is nothing in its Judgment to indicate that it considered either the requirements of the First Geneva Convention or the merits of petitioner's claim that he qualifies as Article 24 personnel.
UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE
affords total immunity to permanent medical personnel, see GC Commentary 219, it is no
wonder that the Convention imposes strict conditions designed to prevent manipulation
or subterfuge by ineligible individuals attempting to benefit from an improper assertion
ofprotected status.
At the time of his surrender, petitioner carried no form of identification indicating
his status as permanent medical personne1. Nor has he presented any other documentation
that might put him "in a position to prove that he is a member of the medical . . .
personnel, in order that he may enjoy the status accorded to him under the Convention."
ld. at 313. 6 This comes as no surprise, as the evidence shows that the
Article 24. See ~~ 3, 11. Petitioner thus lacks what the Convention
regards as the preeminent credential by which a detained individual can validate his
protected status under Article 24.7
Petitioner argues that Article 24 requires only that medical personnel be
"exclusively engaged" in medical work. He contends that nothing in the text requires that
medical personnel also receive "bureaucratic designation" for their medical work. Pet.'s
6 Notably, the Commentary recognizes that alternative documentation-which petitioner does not claim to have carried-is likely insufficient to prove one's status under Article 24. Prior to 1949, medical personnel did not carry official identification and thus attempted to prove their status "either from an entry in their pay-book, or by a special document." GC Commentary 313. These attempts often failed-"[m]edical personnel who were taken prisoner were often unable to have their status and their right to repatriation recognized." Id To "eliminate these serious drawbacks," the current system requires a "special identity card" that is "uniform throughout the same armed forces." !d.; see also First Geneva Convention, art. 40. , As indicated above, supra note 3, the Court is focusing its analysis only on Article 24. But the Court's conclusion is nevertheless consistent with Army Regulation 190-8, which provides that individuals entitled to retained status--e.g., permanent medical personnel-"should have on their person at the time of capture a special identity card attesting to their status ... [that] state[s] in what capacity the bearer is entitled to the protection" of the Geneva Conventions. Army Regulation 190-8, § 3-15(a).
Br. on Remand 9. Thus, petitioner argues, the Court should focus only on a functional
assessment of whether he was exclusively engaged as a medic. The Court disagrees.
Article 24's text is descriptive-it describes those individuals who are eligible for
protected status. It cannot be read without reference to Article 40, which sets forth the
means by which an individual proves that he is eligible for protected status. As the
Commentary to the Protocol Additional to the Geneva Conventions explains:
The principal persons protected by the Conventions and the Protocols, i.e., the wounded, sick and shipwrecked, can be identified by means of their condition ... [but] [t]he same does not apply to the personnel and objects protected in their functional capacity . . . . A soldier with medical duties is actually an able bodied person who might well engage in combat . . . . Thus it is essential for medical personnel . . . to be identified in order to ensure the protection to which they are entitled
Commentary to the Protocol Additional to the Geneva Conventions 222 (Int' J Comm. of
Red Cross) (emphasis added), A functional assessment is therefore insufficient to
establish whether petitioner is entitled to protection under Article 24.
The inadequacy of a functional assessment is underscored by the fact that the
Convention guarantees full immunity only to persons engaged as permanent medical
personneL Consider the following scenario. A soldier comes upon a uniformed individual
who is attending to the wounded on the battlefield. Reliance on a functional evaluation
would leave the soldier without the means of determining whether the uniformed
individual is a permanent medic entitled to full immunity or an enemy combatant who is
simply attending to the wounded at that time. s Proper identification is thus necessary to
The necessity of proper identification to distinguish Article 24 personnel is reinforced by the absence of 11 any identification requirements for Article 25 personnel-who receive protection only "if they are carrying out [medical] duties at the time when they come into contact with the enemy or fall into his hands." First Geneva Convention, art. 25.
enable battlefield participants to readily identify those persons who qualify for protection
under Article 24.
Given the regime contemplated by the Convention, petitioner's effort to prove his
status through other means must fail. He emphasizes this Court's previous finding that
petitioner, after leaving the front line, served as a Taliban medic in two clinics and a
hospital in Afghanistan. See Unclassified Mem. Op. 4-5, 16-17 [16]. He further
highlights the Court's finding that he "likely did not engage in combat in Afghanistan."
Id. at 15. Petitioner argues that these findings, coupled with additional evidence
including his own declaration stating that he was a full-time medic-establish that he was
permanently and exclusively engaged in medical work. Under the terms of the
Convention, petitioner's evidence is insufficient. Nothing in today's opinion ignores or
contradicts the Court's previous findings as to petitioner's work as a medic. But neither
those findings nor petitioner's additional evidence can replace the proof required by the
Convention-that is, official identification demonstrating that he is entitled to protected
status under Article 24. Absent such identification, petitioner simply cannot prove that he
qualifies as Article 24 personnel.
Were the Court to hold otherwise, it would afford the Convention's protections
beyond their intended scope. And in doing so, it would endorse an unworkable
standard-one that allows a detained individual to establish Article 24 status through
means other than those set forth in the Convention. The Court need not expound on the
evidentiary difficulties this would entail; they are easy to imagine. The Convention is
designed to avoid such uncertainty, and this Court is not in a position to circumvent its
express conditions.
UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE
The Court understands the implication of its decision here-that where a warring
party provides no identification to its medical personnel, such personnel cannot establish
protected status under Article 24. But this result, while unfortunate, is not absurd. The
Convention requires proper identification precisely because Article 24 affords total
immunity to qualifYing personnel. 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.
V. CONCLUSION
For the reasons set forth above, respondents' Renewed Motion on Remand for
Judgment on the Record will be granted and petitioner's petition for a writ of habeas
corpus win be denied. A separate Order consistent with this Memorandum Opinion shall
issue this date.
DATE ~c.~ RO E C. LAMBERTH CHIEF JUDGE