Lead Opinion
Opinion for the Court filed by SENTELLE, Senior Circuit Judge.
Concurring opinion filed by Circuit Judge BROWN.
Appellant Mukhtar A1 Warafi, a Guantanamo detainee, appeals from a judgment of the district court denying his petition for a writ of habeas corpus. A1 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 A1 Warafi.
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,
Aticle 24 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Amed 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 “[personnel designated in Aticle[ ] 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 Amy Regulation deals with the treatment of “retained personnel,” including medical personnel as described in Ati-cle 24. A Warafi has argued throughout this proceeding that he is within the category protected by Aticle 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opinion denying his petition for-a writ of habeas corpus did not explicitly analyze this claim, we remanded in the unpublished decision cited above.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 A 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,
ANALYSIS
A Warafi has asserted that he qualifies as medical personnel under the Geneva Conventions and Amy Regulation 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, Amy Regulation 190-8 expressly incorporates relevant aspects of the Geneva Convention’s medical personnel protection. Amy Regulation 190-8 is domestic U.S. law, and in a habeas proceeding such as this, a detainee may invoke Amy 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 A 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 Amy Regulation 190-8.
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,
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.”
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 Common Sense in Government Procurement v. United States,
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, A1 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 A1 Warafi to the destination. We hold that without the mandatory indicia of status, A1 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.”
The court recalled that: “ ‘[0]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.’ ”
In the end, the question of whether A1 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.,
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.
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.
Notes
. 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.
Concurrence Opinion
concurring:
Emphasizing the Geneva Convention’s “strong mandatory language,” Op. 632, 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. 631. “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. 632. I write separately only to draw out the unstated significance of our holding. .
In Hamdan v. Rumsfeld,
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
Hamdan, of course, requires no such thing. The Court’s analysis focused on the specific jurisdictional language of Common Article 3, see Hamdan,
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,
. 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.