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UNITED STATESDISTRICTCOURT FORTHEDISTRICTOFCOLUMBIA 

### FiJed with Classificd ) 

### Infonnation SecurityOfficer MUKHTARVARIANAJI ) 

### CISO 

# 2/'t2tZ;Z AL WARAFI(ISN 117), ) ) 

## Date 9/llll Petitioner, ) ) 

### v. ) CivilAction No. 09-2368 (RCL) ) BARACKOBAMA,

### etal., ) ) Respondents. ) ) MEMORANDUM OPINION This case is before the Court on remand from the United States Court ofAppeals for the District of Columbia Circuit. The Court is to consider only one issue herewhether petitioner was permanently and exclusively engaged as a medic within the meaning ofArticle 24 ofthe First Geneva Convention and § 3-1S(b)(1}-(2) ofArmy 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'spetitionfor a 

### writ ofhabeas corpus. I. PROCEDURALBACKGROUND 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 ofthe Taliban at the time ofhis 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


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command structure ofthe Taliban." 

### ld. at 16. Petitioner argued in the alternative that
even ifhe was part ofthe Taliban, he is not detainable because he was permanently and exclusively engaged as a medic under Article 24 ofthe First Geneva Convention. The Court rejectedthat argument under § 5 ofthe Military Commissions Act, whichprovides that "[n]o person may invoke the Geneva Conventions
... as a source ofrights" 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 ofthe Taliban ended its inquiry into whether petitioner's detention islawful. On February 22, 2011, the Court ofAppeals 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 CourtofAppeals noted, however. thatthe Court "didnotexplicitly address whether Al Warafi was permanently and exclusively medical personnel within the meaning ofArticle 24 ofthe First Geneva Convention and ArmyRegulation 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 whetherthat conclusionrelated onlytothe Court's determinationthat At Warafi was part ofthe Taliban. 

### ld. at 2. The Court ofAppeals 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 andto make a finding onthis issue." 

### ld. On August 26,2011,having receivedtheparties' briefs andreplybriefs, this Courthelda merits hearingonthe issue. 8'@l!MiJ"jlIf8'8I\H UNCLASSIFIEDIIFOR PUBLIC RELEASE 2UNCLASSIFJEDIIFOR PUBLIC RELEASE



### II. RELEVANTFACTUAL BACKGROUND A. EvidencePreviouslySubmittedto 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]. Forthe narrowpurposes ofthis 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 affirmedthese findings, andthusthey arethe law ofthe case. After weighing the evidence in the record-namely, reliable statements that petitionerhimselfmade to his interrogators-the Court found that petitionermore likely than not traveled to Afghanistan for the purpose offighting 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 Alliancewith the help ofofficials at a Taliban center in Quetta, Pakistan. 

### Id at 14-15. On the basis ofthe record, the Court concluded 

### that petitioner more likely than not went to the front line to fight against the NorthernAlliance and thathe more likely than notreceived weapons training there. 

### Id The Court also found, however, 

### that "petitionerlikely did not engage in combat in Afghanistan." 

### !d. at 15; 

### see also id. at 4 (stating that petitioner received weaponstraining butdidnotengage inany active combat). The Court then found thatpetitioner, after spendingoneto two weeks onthe 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

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### 3clinic 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 ofmalaria. 

### Id at 

### 4. Petitioner remained there for approximately twenty-five days and treated sixto sevensick or woundedTalibanfighters 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 at4-5. 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 servingin a clinic. 

### Id. In November 2001, the Taliban agreed to surrender to coalition forces. 

### Id. at 5, 18. As part ofthe surrender, petitioner's Taliban commander, Thakker, negotiated a safe passage from Konduz to Kandahar viaMazar-e-Shariffor thetroops underhis command. 

### Id. at 5, 18. The CourtfoundthatbothpetitionerandDr. Aziz were withThakker'stroops whentheywere capturedbytheNorthern Alliance outside ofMazar-e-Sharif. 

### Id. at 5, 18. Petitionerwas capturedwitha weapon, whichhe was forced to surrender, and transported to Qala-i-Jangi prison with Thakker's troops. 

### Id. at 18. On the basis ofthe record, the



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Court concluded thatpetitionermore likely than not went to surrender at Mazar-e-Sharif
onThakker'sorders.ld. at 19. B.AdditionalEvidenceonRemand Pursuant to the Court's scheduling order on remand, the parties have submitted additional evidence onthe issue ofwhether petitioner served as permanent and exclusive medical personnel within the meaning ofArticle 24 ofthe 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 ofa 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 underhis supervisionin Konduz in ahouse that was "nextto the clinic
... so itwas convenientto go to and from work."Id I The government has produced, among other documents, the declaration of.



### See Resp'ts Renewed Mot., Additional Ex.

I Petitioner notes that Dr. Aziz, "[tJhe person in the bestposition 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].
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### III. LEGAL FRAMEWORK The President has authority under the Authorization for Use ofMilitary Force (AUMF), Pub. L. lO7-40, 

### § 2(a), 115. Stat. 224 (2002), to detain individuals who were part ofor substantially supported al-Qaeda, the Taliban, or associated forces engaged in


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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 underthe AUMF is infonnedby the laws ofwar. See Resp'ts Renewed Mot. 12
n.7, 23. For the purposes ofthis proceeding, the relevant provisions ofthe First Geneva Convention and Anny Regulation 190-8, both of which bar the detention of certain medical workers, are outlinedbelow. A. TheFirst Geneva Convention The First Geneva Convention governs, among other things, the treatment and protection ofmilitary medical personneL See Geneva Conventionfor the Amelioration of the Condition ofthe 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 ofmilitary medical personnel, defined respectively in Articles 24 and 25. Article 24 personnel are "[mJedica1 personnel exclusively engagedinthe search for, orthe collection, transport or treatment ofthe wounded or sick, or in the prevention ofdisease, [and] staffexclusively engagedinthe administration ofmedical units and establishments."fd art. 24 (emphasis added). The Convention providesthat suchpersonnel "shallberespected andprotected in all circumstances."fd UnderArticle 28, "[p]ersonnel designated in Article[] 24
... shall be retained only in so far as the state ofhealth
... and the number ofprisoners ofwar require." fd. art. 28. IfArticle 24 personnel are not needed to take care ofprisoners of war, they "shall be returned tothe Party tothe conflictto whom theybelong. as soon as a road is openfortheirreturnandmilitaryrequirements 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

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Convention Commentary (hGC Commentary") 219 

### (InCI Comm. of Red Cross). Although "[i]t is for each powerto decide the composition ofits 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 ofparticipation-evenindirect-inhostile acts."

### ld at 221. Theprotectionto which they are entitled "ceases ifthey are usedtocommit acts 'harmfulto the enemy.'" 

### [d. The Commentary to the Conventionprovides 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, providingthem with security during hostilities andenablingthem to prove their protected status ifcaptured. See GC Commentary

### 312-15. The Convention and its Commentary describe a number ofcriteria regarding the armlet and identity cardthat a military authority mustprovide to Article 24personnel. As to the armlet, "[w]hat is above all essential is to ensure the 'bonafides' ofthe wearer." 

### Id at 310. Accordingly, the "armlet will have no protective value, and cannot be lawfully

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### worn, unless it has been stamped and issued by the military authority. This time the condition is an essential one, admitting ofno 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 ofthe wearer. Ifhe falls into enemy hands, he must be able toprove that he is entitledto 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 ofthe medical or religious personnel, in order that he may enjoy the status accorded to him underthe Convention." 

### [d. (emphasis added). Article 40 describes the required features ofthis card-namely, 

### that the card "shall state in what capacity [the individual] is entitled to the protection ofthe 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 ofthe armed forces specially trained for employment, shouldthe needarise, 

### 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

2 The question ofwhether petitioner qualifies as Article 25 personnel is not before the Court, as he has never claimed such status. 9 UNCLASSIFIEDIIFOR PUBLIC RELEASEpart of their time on such duties." GC Commentary 221. Such personnel "are, when necessary-that is to 

### say, occasionally--usedbytheir 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 protectionunderthe Conventionat 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 enemyorfall intohis hands." FirstGenevaConvention, art. 25. B.ArmyRegulation 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 ofhealth
... 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 ofmedicalpersonnel areeligibleto be certified as retainedpersonnel: (1) Medical personnel who are members ofthe medical services oftheir armedforces. (2) Medicalpersonnel who are exclusively engagedin: (a) The search for or the collection, transport, or treatment of the wounded orsick. (b) The preventionofdisease. (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 theirperson 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

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the Geneva Conventions. fd § 3-15(a) (emphasis added). This requirement applies to both categ?ries ofmedical 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 ofthe 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,theprovisions ofthe GenevaConventionstakeprecedence."

### ld. § 1-1(b)(4). 

### IV. DISCUSSION As noted above, this Court previously held that § 5 ofthe Military Commissions Act bars petitioner from invoking the Geneva Conventions as an independent source of rights in his habeas proceeding. Butperthe Court ofAppeals' 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 nopositionon the extent to which the Geneva Conventions inform the AUMF, 

### see Resp'ts Renewed Mot. 24,29, argue thatpetitionerhas not shownthat he was permanently and exclusively engaged as a medic within the meaning ofArticle 24.3 Petitioner argues to the contrary, and thus contendsthat Article 24 and ArmyRegulation 190-8, 

### §3-15(b)(1)-(2)renderhis 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 ofthe First Geneva Convention. As respondents explain, the Geneva Conventions take precedence over Army Regulation 190-8 in the event ofconflict between the two documents. See Army Regulation 190-8, § I-J(b)(4). For this same reason, the Courtwill focus its analysis on Article 24.
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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 PermanentMedical PersonnelEntitledtoProtection underArticle

### 24orArmyRegulation 190-8 In its mandate to this Court, the Court of Appeals suggested in dictum that petitioner bears the burden ofproving 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 ofthe Medical Services at the time ofhis capture, it appears that Al Warafi bears the burden ofproving 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 ofproving 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 

### ifhe qualifies as non-detainablemedical personnelunderArticle 24 orArmy Regulation 190-8. Thus, petitioner argues, it is respondents' burden to prove 

### thathefalls outside the protectionofthoseprovisions. The Court rejects petitioner's contention. There is no question that 

### it was respondents' burdento provethat petitioner's detention is lawful-thatis, "thatpetitioner
more likely than not was part of the Taliban" at the time ofhis 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 ofor supported the Taliban). But this Court has already held that petitioner was more likely than not part ofthe Taliban, and

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### the Court ofAppeals has affirmed that holding. Petitioner now claims Article 24 status not to contest that holding-indeed, he cannot do so under the law ofthis case-but to demonstrate that he is exempt 

### from detention notwithstanding 

### that he was part ofthe 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 burdenshifting scheme ofthis sort would meet the goal ofensuring that the errant tourist, embeddedjournalist, 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 thatthe detainee is infact an enemy combatant. Hamdi v. Rumsfeld, 

### 542 U.S. 507, 534 (2004) (plurality opinion). Because respondents have already met their burden ofproving that petitioner was part ofthe Taliban at the time ofhis capture, the burden has shifted to petitioner to prove that he is nevertheless exemptfrom detentionunderArticle 24 orArmy Regulation 190-8.4 

### B. Petitioner Fails to Prove His Status as Permanent MedicaL Personnel EntitLedto Protection underArticle24

### orArmyRegulation J

### 90-8 The Court finds that petitionerhas failed to prove his status as permanent medical personnel within the meaning ofArticle 24 ofthe First Geneva Convention or Army Regulation 190-8. As described above, Article 24 personnel "areto be furnished withthe
means ofproving 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 ofwho has the burden ofproofhere is academic. Even ifthe burden were on respondents, theevidence in the record and the applicable law would compel the same outcome inthis case.
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of"prevent[ing] abuses" by persons ineligible for Article 24 status who might otherwise impersonate medical personnel to exploit the Convention'sprotections. GC Commentary 311; see id. (stating that there is "no exception" to the requirement that the military authority stamp and issue the armlets required byArticle 40); id. at 315 (setting forth the "mostimportant"conditionthat identity cards contain the stamp ofthe official authority). Proper identification is thus required not only to protect medical personnel on the battlefield, but to establish their status ifcaptured. 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 adetainedindividual "inapositiontoprove thathe is a member ofthe 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 entitledto the protection ofthepresent 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 exceptionto this requirement.5Nowhere 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 onthe means ofensuring that such identification is authentic. The Convention's identification requirements are neither surprising nor onerous. Given that' Article 24

S Petitioner argues thatthe Court ofAppeals, in remanding his case to this Court while noting that he "did notcarryan identification card or wear an armlet bearing theemblem ofthe Medical Services at the time of capture," Judgment 2 [39], necessarily found that the lack ofsuch identification does not preclude Article 24 status. But the Court ofAppeals 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'sclaim that he qualifiesasArticle24 personnel.
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affords totalimmunityto permanentmedicalpersonnel, see GC Commentary219, 

### itis 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. Atthe time ofhis surrender, petitionercarried no form ofidentification indicating his status as permanent medical personne1. Norhas he presented any otherdocumentation 

### 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 underArticle 24.7 Petitioner argues that Article 24 requires only that medical personnel be "exclusively engaged" inmedical work. He contends

### that nothing in the textrequires that medical personnel also receive "bureaucratic designation" for their medical work. Pet.'s

6 Notably, the Commentary recognizes that alternative documentation-which petitioner does notclaim 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.;seealso First GenevaConvention, 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 atthe time ofcapture a special identitycard attesting to their status ... [that] state[s] in what capacitythe bearer is entitled to the protection" ofthe Geneva Conventions. Army Regulation 190-8, §3-15(a).

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### Br. on Remand 9. Thus, petitioner argues, the Court should focus only on a functional assessment ofwhether 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 Commentaryto the Protocol Additional tothe GenevaConventionsexplains: The principal persons protected by the Conventions and the Protocols, i.e., 

### the wounded, sick and shipwrecked, can be identifiedby means oftheircondition
... [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 ablebodied person who might well engage in combat
. . . . Thus 

### it is essentialfor medical personnel
. . . to be identified in order to ensure theprotection towhich theyare 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 establishwhetherpetitioneris entitledto protectionunderArticle 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 Considerthe following scenario. A soldiercomes 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

11 The necessity ofproper identification to distinguish Article 24 personnel is reinforced by the absence of any identification requirements for Article 25 personnel-whoreceive protection only "ifthey are carrying out [medical] duties at the time when they come into contact with the enemy or fall into his hands." First GenevaConvention, art. 25.
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enable battlefieldparticipants to readily identifythose persons who qualify for protection underArticle 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 evidenceincludinghis owndeclaration statingthathe was afull-time medic-establishthathewas 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 proofrequired by the Convention-that is, official identification demonstrating that he is entitled to protected status under Article 24. Absent such identification, petitioner simplycannotprove that he qualifies as Article 24personnel. 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.

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The Court understands the implication ofits decision here-thatwhere 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. Butuntil they do so, theirmedical personnel 

### will lackthe means by which they canprove theirentitlementto Article 24'sprotections. 

### 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 ofhabeas corpus win be denied. A separate Order consistent with this Memorandum Opinion shall issue this date.

# ~c.~ DATE RO E C. LAMBERTH 

### CHIEFJUDGE

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