In the United States Court of Appeals for the District of Columbia Circuit

Transcription

1 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 1 BECRET/lfiOfORPi ORAL ARGUMENT: NOT YET SomoULED ~ No cso: 0FFrc1Dt DATB'.~ In the United States Court of Appeals for the District of Columbia Circuit MUKHTAR YAHIA NAIl AL WARAFI, Petitioner-Appellant, v. BARACK OBAMA, et ai., Respondent~-Appellees. On appeal from the United States District Court for the District of Columbia, Civil Action No , Hon. Royce C. Lamberth, ChiefJudge Reply Brief of Petitioner-Appellant Mukhtar Yahia Naji al Warafi DAVID H. REMFS APPEAL FOR JUSTICE 1106 Noyes Drive Silver Spring, MD (202) phone October 26, 2010 S. WILliAM LMNGSI'ON ROGER A. FORD PHnJp A. SCARBoROUGH COVINGTON & BURLING LLP 1201 PeIUlSylvania Ave., NW Washington, DC (202) phone (202) facsimile Counsel jpr Petitioner-Appellant MukhtarlYahia Naji al Warafi I

2 Case: Document: Filed: 11/19/2010 Page: 2 BECRET~,OfORN Table of Authorities Glossary TABLE OF CONTENTS Introduction and Summary of the Argument... 1 Argument The evidence shows that Mukhtar was not "part of" the Taliban during the relevant period. 3 II. A. Mukhtar's pre-october 7, 2001 activities do not render him detainable... 3 B. Mukhtar worked in civilian medical clinics starting in early September C. The Government's repetitive allegations concerning a "Taliban guesthouse," a Taliban "training camp," a "fighting unit," and third-party witnesses were not accepted by the district court. 11 D. Mukhtar's "surrender" to the Northern Alliance does not render him detainable Mukhtar's detention violates legal principles governing the treatment of medical personnel.. 19 A. Mukhtar is not detainable under the AUMF, and Section 5(a) of the Military Commissions Act of 2006 does not change that. 19 B. Mukhtar's detention is also illegal directly under the First Geneva Convention and under otherwise applicable federal law 24 C. Mukhtar was"exclusively engaged" in medical work and is therefore protected under Article 24 of the First Geneva Convention. 26 Conclusion 33 Certificate of Compliance 34 Certificate of Service 34 ii v 1

3 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: tlSfij~CN8rOIUi TABLE OF AUTHORmES Cases AI-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010) 7, 14 AI-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010), rehearing en bane denied, No , slip op. (Aug. 31, 2010) 3-5, 13 Al Odah v. United States, 611 F.3d 8 (D.C. Cir. 2010) 8, 14 AIbreehtsen v. Bd. ofregents ofthe Univ. ofwise. Sys., 309 F.3d 433 (7th Cir. 2002) Awad v. Obama, 608 F.3d 1 (D.C. Cir. 2010) 8 Barhoumi v. Obama, 609 F.3d 416 (D.C. Cir. 2010) 8, *Boumediene v. Bush, 553 U.S. 723 (2008) 20,22-23 *Hamdan v. Rumsfeld, 548 U.S. 557 (2006) *Hamdi v. Rumsfeld, 542 U.S. 507 (2004) 3, 5, 21 Johnson v. Eisentrager, 339 U.S. 763 (1950) Noriega v. Pastrana, 564 F.3d 1290 (11thCir. 2009), certiorari denied, _ U.S. ---J 130 S.Ct Qan. 25, 2010) 20,22-23 * Authorities upon which the petitioner-appellant chiefly relies are marked with asterisks. SECRE'fHf:lOFOR1, ii

4 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 4 S~CRISThe,IOFOR~J Cases cont'd R.I. Dep't ofenv. Mgmt. v. United States, 304 F.3d 31 (1st Cir. 2002) 25 Constitutional Provision *Suspension Clause, U.S. Const., Art. I, Sec. 9, d. 2 20, 23 Statutes, Rules, and Regulations 28 U.S.C *28 U.S.C Army Regulation 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees (Oct. 1, 1997) 24, 26 *Authorization for Use of Military Force, Pub. 1. No , 115 Stat , 2, 19, 21, 23,24,32 Fed. R. App. P. 28(a)(9)(A) 24 Military Commissions Act of 2006, Pub. L. No , 120 Stat , 29 Treaties and International Law *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 (First Geneva Convention) 2, 21-22, 24, 26-28,30-31 Convention Relative to the Treatment of Prisoners of War, Aug. 12,1949,6 U.s.T (Third Geneva Convention) 22 Yemen Friendship and Commerce Agreement, 60 Stat (May 4, 1946) 24, 26 SECRE'f'/fl,OflORN 111

5 Commentary Case: Document: UNCLASSIFIEOflFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 5 SISCItIS4;$CfiOrOItPJ *Pictet et al., Commentary I: Geneva Convention for the Amelioration ofthe Condition ofthe Wounded and Sick in Anned Forces in the Field (1952) 27-28,31 SF:CRE'i}Yf,OPORt, IV UNCLASSIFIEOflFOR PUBLIC RELEASE

6 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 6 GLOSSARY AUMF JA Authorization for Use of Military Force Joint Appendix SiCRI9';f}~.OFOR'" v

7 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 7 SECRETHtriOFORU INTRODUCTION AND SUMMARY OF THE ARGUMENT The Government does not dispute the essential facts that demonstrate that the district court erred in holding that the petitioner, Mukhtar al Warafi, was part of the Taliban. Under the Authorization for Use of Military Force (AUMF), the Government is required to show that a detainee was part of a group that fought against the United States. There were no hostilities between the United States and the Taliban until October 7, 2001, when the United States initiated military action in Afghanistan. The Government does not contend, nor did the district court find, that Mukhtar did anything other than work in medical clinics after that date, and there is no basis in the district court's findings or in the record for concluding that those clinics were Taliban clinics. Accordingly, as explained in the petitioner-appellant's opening brief and in part I below, the district court's denial of the writ should be reversed. Moreover, the Government acknowledges that the AUMF must be interpreted in light of the laws of war, including the Geneva Conventions. Under that straightforward concession, Mukhtar's detention is illegal because, even assuming arguendo that he was part of the Taliban, he was exclusively engaged in medical work at the time of his seizure and thus is SECRE't)~40fOR" 1

8 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 8 SECRElHl,OFORt4 covered by the First Geneva Convention's protections for medical workers. This renders his detention unauthorized by the AUMF as well as illegal under the Convention itself. His detention is also illegal under other federal law incorporating the Conventions. The Government's principal argument is that the district court found that Mukhtar was not exclusively engaged in medical work, but the district court made no such finding. The Government points to no evidence that Mukhtar did any non-medical work after he started working in the clinics, and Mukhtar's statement that he was a medical worker during that period is unrebutted. As explained in the petitioner-appellant's opening brief and in part II below, full-time medical workers like Mukhtar who are not needed to care for other prisoners must be released. ii9ciui~10for~j 2

9 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 9 SEeRE'fh~,orOIU, ARGUMENT 1. THE EVIDENCE SHOWS THAT MUKHTAR WAS NOT JJPART OF" THE TALIBAN DURING THE RELEVANT PERIOD. The evidence before the district court, and the facts that the district court found, compel the conclusion that Mukhtar was not part of the Taliban when it fought the United States. In asserting otherwise, the Government relies on the district court's findings concerning conduct prior to the commencement of hostilities between the Taliban and the United States and on unsupported allegations that the district court did not accept in its findings of fact. The facts the district court actually found, and the record before ~e court, do not support the conclusion that Mukhtar was part of the Taliban. A. Mukhtar's pre-october 7, 2001 activities do not render him detainable. In Hamdi v. Rumsfeld, the Supreme Court held that the AUMF authorizes the Government to detain "the limited category" of "individuals whofought against the United States in Afghanistan as part ofthe Taliban, an organization known to have supported the al Qaeda terrorist network responsible for" the September 11 attacks. 542 U.S. 507,518 (2004) (plurality opinion) (emphasis added). Likewise, this Court held in AI-Bihani BECKfiHf,OFOKfrt 3

10 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 10 v. Obama that the Government's detention authority extends to individuals who were part of or substantially supported groups"engaged in hostilities against the United States or its coalition partners." 590 F.3d 866,872 (2010).1 Since the United States and the Taliban were not at war until October 7, 2001, the Government's detention authority, at least with respect to alleged Taliban members, must be limited to those who were part of the Taliban after October 7. The Government's responses - that the Supreme Court"could not have intended" to make pre-war 1/events" irrelevant and that it need not show that a detainee"actually took part in combat against the United States" or IIpersonally fought directly against the United States," Gov't Br. 1 In AI-Bihani, this Court phrased its holding about the Government's detention authority in various ways, but each refers explicitly to the requirement that the enemy force be engaged in hostilities against the United States. See 590 F.3d at 872 (detention authority extends to individuals who were part of or substantially supported groups "engaged in hostilities against the United States or its coalition partners"; to any individual who "engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces)"; to those who "purposefully and materially supported hostilities against the United States or its coalition partners"; and to those who support or are associated with Taliban forces "in hostilities against U.S. Coalition partners"). (519CIU!T$IOfOR~J 4

11 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 11 SECRE'f; NOFORN 36 - miss the point. The petitioner acknowledges that this Court in AI-Bihani held that a cook for a Taliban unit during its war with the United States was detainable even if he never fired a shot, 590 F.3d at , but the petitioner in that case continued to cook for his unit after October 7. Mukhtar, in contrast, worked in a clinic after October 7 and was not part of a Taliban unit. The petition also does not deny the possibility that evidence of pre-war events may in some cases shed light on conduct after the war commences,2 but this does not affect the fact that the relevant issue is whether Mukhtar functioned as part of the Taliban after October 7, The Government actually concedes this point, stating that "the determinative question is whether [Mukhtar] was part of the Taliban forces at the time afhis capture." Gov't Br. 34 (emphasis added). The district court decided that Mukhtar was detainable, and the Government defends that decision, based largely on findings about Mukhtar's activities before October 7, For instance, the Government 2 As noted in the opening brief, however, Mukhtar maintains that the Government's detention authority does not extend to individuals who did notfight the United States. See Pet'r. Br. 26 n.5; Hamdi, 542 U.S. at518 (plurality opinion). SECRE'i.)Yf:iOFORf, 5

12 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 12 SECRB~}YtJOFOIUi makes much of the district court's detennination that Mukhtar left Yemen for Afghanistan intending to fight with the Taliban. But the court found that Mukhtar traveled to Afghanistan before the September 11 attacks, JA 4, and the Government contends that he did so intending to help the Taliban in a struggle with other Afghanis - not against the United States. See Gov't Br. 6,26. The Government also contends that Mukhtar "was told he was fighting against Afghans, particularly Masood's people (who were part of the Northern Alliance)" - not Americans. Gov't Br. 7; accord, Gov't Br. 29. The Government does not even contend that Mukhtar left Yemen intending to fight the United States. 3 Similarly, the brief weapons training that the district court found Mukhtar received was at a line between the Taliban (which was then the government of Afghanistan) and the Northern Alliance, before any involvement by the United States. See JA 16. Moreover, the record indicates that the line was not an active front at that time - there is no evidence of any fighting, and the evidence the 3 Whatever intent to fight Mukhtar may have entertained at the time he left Yemen (and he insists that he went to Afghanistan to perform medical work, JA 507), it is undisputed that he never acted on it. The court found that he did not engage in combat in Afghanistan, JA 16, yet he surely had numerous opportunities to do so after war broke out on October 7, SECRB:rHNOFOR~ri 6

13 Case: Document: Filed: 11/19/2010 Page: 13 district court found "reliable" states that Mukhtar"did nothing" during the few days that he was at the line. JA 10-11, 343, By October 7, 2001, Mukhtar was working at a clinic"run by a Saudi doctor," Dr. Abdullah Aziz. JA 5; Pet'r Br There is no evidence that the clinic was run by the Taliban. The Government does not assert that Dr. Aziz was anything other than a civilian, and, as the district court found, he "ran" the clinic. Mukhtar worked in a civilian capacity, as is clear from the evidence about his work in the clinics discussed in part LB below. The Government asserts that this Court has upheld the detention of other detainees who came to Afghanistan before the September 11 attacks, but in each of the cases cited by the Government, the detainee remained active in the Taliban or al Qaeda after the war with the United States began: In AI-Adahi v. Obama, the Court observed that the detainee had "voluntarily affiliated himself with al-qaida," which had announced "that every Muslim had a duty to kill Americans," and credited the Government's contention "that AI-Adahi was complying with 'bin Laden's order to persist in the jihad' after the American attacks." 613 F.3d 1102,1108, 1110 (D.C. Cir. 2010). SIS@RIS'fh'N8F8IUJ 7

14 Case: Document: Filed: 11/19/2010 Page: 14 SBCRHT)~JOFOR~J In Barlwumi v. Obama, the Court affirmed the district court's finding "that Barhoumi was 'part of an al-qaida-associated force engaged in hostilities against the United States or its coalition partners." 609 F.3d 416, 418 (D.C. Cir. 2010). InAl Odah v. United States, the Court observed that AI Odah traveled in an armed group that "was attacked by US and allied air strikes" and that AI Odah continued to bear arms after October 7, F.3d 8, 11,15 (D.C. Cir. 2010). Finally, in Awad v. Obama, the detainee"told his interrogators that his purpose in traveling to Afghanistan was to receive weapons training and to fight U.S. and allied forces," and engaged in a firefight against coalition forces in December F.3d 1, 4, 9 (D.C. Cir. 2010). In contrast, as discussed below, Mukhtar was a worker in civilian medical clinics before and after the October 7 invasion; he never fought the United States or intended to fight the United States and was not part of the Taliban. B. Mukhtar worked in civilian medical clinics starting in early September The Government asserts that Mukhtar worked in medical clinics for only 25 days. Gov't Br. 29. Infact, as the district court found, Mukhtar SECRE'fHt,OFORN 8

15 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 15 BECltf'f))Sf;fOfOfU;f worked in two medical clinics and a hospital over a period of approximately two and a half months. 4 See JA 5-6; see also JA 285 (started at clinics by the "end of the summer"), 508 (started in late August), 728 (2 months). Mukhtar was seized by the Northern Alliance on November 24, 2001, and thus must have started working at the clinics well before the UnitedStates invaded AfghanistanonOctober7,2001. See also JA 16 (finding that Mukhtar "was likely not at the Khoja Khar line when the United States invaded Afghanistan on October 7, 2001").5 There is no evidence that Mukhtar did anything while at the clinics other than assist in the treabnent of patients. The district court found that it was "undisputed that petitioner worked at clinics run by Dr. Aziz in Dastereshi and Konduz," and that his work included treatment of sick and wounded Taliban fighters. JA The evidence cited by the court does 4 The district court described Mukhtar as having worked at his first clinic, in Dastareshi, for"approximately twenty-five days," JA 5; at a second clinic, in Konduz, for"one month," id.; and then at a hospital for an unspecified period of time, JA The Government also incorrectly states that Mukhtar had worked for only a "few months" in his brother's clinic in Yemen. Gov't Br. 49 n.17 (citing JA ). In fact, the cited exhibit states that he worked at his brother's clinic over a period of three years. ~icri1)s'j'iofor.i 9

16 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 16 not state that these were the only patients who used the clinic, see JA 730, and the court does not dispute Mukhtar's statement that the clinics were used by non-combatants. See JA The Government does not contend, nor is there any evidence, that Mukhtar did anything while he was at the clinics other than perform medical work. The Government, however, asserts that the clinics "had a substantial connection to the Taliban." Gov't Hr. 39. The district court made no such finding, nor would the record support one. On the contrary, the court found that the clinics were "run by" a Saudi doctor, JA 5, and there is no evidence that this doctor had any relationship with the Taliban. The Government argues that its assertion is supported by evidence showing that Mukhtar was trained to clean wounds, that he treated wounded fighters at the clinics, and that he responded to a call for medical volunteers while at a pre-war line between the Taliban and the Northern Alliance. Gov't Hr These facts do not show a connection between Dr. Aziz's clinics and the Taliban. See Pet'r Hr There is nothing unusual in training medical workers in a war-tom country to clean wounds. This fact is no more incriminating than the fact that Mukhtar was also trained to draw blood and to recognize the symptoms of malaria. JA 5. 8ECRE'f#f,OFOR~U 10

17 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 17 SECRETffNOrORl', The fact that injured combatants came to the clinic is likewise to be expected in such an environment. And there is no evidence that the man who asked for volunteer medical workers on the front line, "Mohammed Ghofran," see JA 730, was affiliated with the Taliban. See Pet'r Br Notably, the Government does not defend the district court's unsupported assertion that Ghofran was Mukhtar's "superior." JA 5. The Government's further argument that the district court was entitled to infer from"the evidence showing that these clinics had a substantial connection to the Taliban" that the Taliban ordered Mukhtar's transfer "from one clinic to another," Gov't Br. 39, must likewise be disregarded because there is no evidence (and no finding) that the clinics were Taliban clinics. C. The Government's repetitive allegations concerning a "Taliban guesthouse," a Taliban "training camp," a ''fighting unit," and third-party witnesses were not accepted by the district court. The Government repeatedly asserts that Mukhtar (a) stayed at a "Taliban guesthouse," (b) had weapons training at a Taliban "training camp," and (c) served in a front-line "fighting unit." Gov't Br. 2, 6, 7, 8, 17, 18,20,21,24,28,29,32,35,51,52. These assertions are repeated so often that the Government must believe them to be crucial to its position in this SI9CRE~Ht,OFOIU, 11

18 Case: Document: Filed: 11/19/2010 Page: 18 appeal. The fact is, however, that they were not adopted by the district court and find no support in the court's findings. The assertions thus must be disregarded, at least absent a showing by the government (and none is attempted) of clear error by the district court. 6 The Government also cites summaries of interrogations of other detainees. The district court likewise rejected this evidence, which in any event has no probative value. "Guesthouse." The district court did not find that Mukhtar ever stayed at any guesthouses, much less at a Taliban guesthouse. The Government's allegation that he did thus must be regarded. The allegation, in any event, is utterly insubstantial. It rests entirely on an assertion that Mukhtar stayed one night at a guesthouse in Spin Buldak, a town near the Pakistan- Afghanistan border, during his bus trip from Pakistan to Afghanistan. Gov't Br. 6. The exhibit cited by the Government for this proposition, 6 As a general matter, the Government's brief relies far more on its own exhibits than on the district court's findings. Its Statement of the Facts contains 93 separate citations to the Government's own exhibits, compared to just 22 citations to the district court's opinion. See Gov't Hr This statistic overstates the Government's reliance on the district court's findings, since most of the Government's citations to the district court's opinion accompany basic descriptions of the opinion itself or the court's legal conclusions rather than any specific findings. See id. i~criit#wopor~i 12

19 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 19 however, does not say IIguesthouse," but says only that the "bus traveled over the border at Spin Balduk[sic], AF and stopped at a rest area overnight before continuing on to Kandahar." JA 259. This obviously provides no support for the guesthouse allegation. Another exhibit tells a different story, that Mukhtar and the group with whom he was traveling "stayed overnight at a Taliban guest house" at "Spin Bullock" [sic] but that Mukhtar "could not remember the name of the house." JA 729. Even if this were true,? and the IIrest area" exhibit false, itwould be meaningless. The Taliban was then the government of Afghanistan, and for a traveler to spend a night in a government house at a border town on his way into the country is hardly incriminating. It certainly does not remotely resemble staying at al Qaeda guesthouses, as has been alleged in other cases. See, e.g., AI-Bihani, 590 F.3d at 873 n.2. 7 This exhibit was based on an interrogation by a man from the Pittsburg Sheriff's department and a New York City detective, JA 729, and has no indicia of reliability. Also, contrary to the Government's contention, Gov't Br. 22, Mukhtar does challenge the reliability of the evidence cited by the district court, including its hearsay nature. The district court, however, relied on this Court's evidentiary rulings in AI-Bihani, which are not subject to reversal by this panel. Mukhtar reserves the right to challenge these rulings en bane or by petition to the Supreme Court. See, e.g., Pet'r Br. 26 n.s; infra n.2.. S CRETHNOFORN 13

20 Case: Document: UNCLASSIFIEDffFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 20 B13ClttJ'if;)FN8f8ItN I/Training Camp." The district court did not find that Mukhtar ever went to a "training camp," "paramilitary training camp," or "paramilitary camp," as the Government alleges. Gov't Br. 2, 7, 17, 21, 28, 32, 52. Rather, it found that Mukhtar had about a week of training on an AK-47 rifle while at "the Khoja Khar line." JA 5, 16-17, One of the exhibits found by the court to be reliable, and which both it and the Government repeatedly cite Goint Exhibit 1), supports this limited finding and does not mention attendance at a training camp. See JA 259. The Government's evident purpose in alleging attendance at a "training camp" is to make this case appear similar to prior cases in which detainees were found to have attended training camps. See Gov't Br. 28, Those cases, however, involved camps where programs of weeks or even months of training were offered, including training by al Qaeda. See, e.g., AI-Adahi, 613 F.3d at 1109 (training at al Qaeda's Al Farouq camp); AIOdah, 611 F.3d at (trainingat Taliban camp); Barhoumi, 609 F.3dat 8 This could hardly qualify as "substantial weapons training," as the Government asserts. Gov't Br. 20. This tendency to exaggerate the record emphasizes the need to look at the court's findings and the evidence, and not to rely on the Government's characterizations. SISC:AtIS'lWJJOfORtl 14 UNCLASSIFIEDffFOR PUBLIC RELEASE

21 Case: Document: Filed: 11/19/2010 Page: (Khaldan training camp). The Government's reliance on these cases is misplaced because there is no finding that Mukhtar went to a training camp, and he denies that he did. JA 509. "Fighting Unit." The district court did not find that Mukhtar was part of a "fighting unit" (an allegation repeated more than a dozen times by the Government, see Gov't Br. 2, 7,8, 18, 20, 21, 24,28,29,32,35,51,52), and its opinion does not even use that term. The court found only that Mukhtar "spent approximately one to two weeks at the Khoja Khar line," that he did not engage in combat, and that he had likely gone to work at Dr. Aziz's clinics prior to the commencement of military action by the United States. JA 5, 16. There is no evidence that anyone was fighting at the Khoja Khar line while Mukhtar was there, and the evidence cited by the district court reveals that Mukhtar "did nothing" during his brief stay at that location. JA 343, Other Detainees. The Government asserts that summaries of interrogations of other detainees support detention. Gov't Br. 9, The district court held that these statements were not shown to be accurate or credible, and it refused to rely on them. JA 13. No basis is shown for reversing this holding. SF;CRE"h'1'Ofom~ 15

22 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 22 SECRET~iOFOR~, In any event, the statements had no probative value. For instance, one of them shows only that John Walker Lindh saw Mukhtar at Konduz, or the nearby Khoja Khar line, see JA 266' 22, but Mukhtar admits to having been at both places. Similarly, another said only that the detainee was in the same prison with Mukhtar where they were being held by the Northern Alliance. See JA 367. None of the statements sheds any light on Mukhtar's work at the clinics. None describes Mukhtar's activities after October 7, 2001, other than his imprisonment, or identifies Mukhtar as a member of the Taliban. D. Mukhtar's "surrender" to the Northern Alliance does not render him detainable. The district court also wrongly concluded thatmukhtar was part of the Taliban because he supposedly surrendered to the Northern Alliance, under orders, pursuant to a cease-fire agreement. See JA As explained in Mukhtar's opening brief, the district court ignored inconsistencies in the Government's exhibits, including different names for Mukhtar's supposed Taliban commander. See Pet'r Br The district court also disregarded, without comment, a Government exhibit that expressly said the safe-passage agreement applied to "[a]ll of the Arabs, S~CKE'ff/f~OfOKN 16

23 Case: Document: Filed: 11/19/2010 Page: 23 Pakistanis and Uzbekistanis" in Konduz. JA 730. This would necessarily include non-combatants. See Pet'r Br. 35. The Government does not explain any of these inconsistencies and omissions. In any event, the Taliban was the government of Afghanistan at the time, and Mukhtar was subject to the orders of local officials just like anyone else in the country. See Pet'r Br The evidence relied on by the district court is consistent with the proposition that Mukhtar and Dr. Aziz, who the Govermnent has never asserted was associated with the Taliban, sought to take advantage of what they were told was a safepassage agreement worked out by Taliban authorities. The district court's failure even to consider this possibility was legal error. The fact that two civilian medical workers, both Arabs, were seized along with other foreigners, including foreign fighters, is not surprising given the chaos of the moment, but it did not convert Dr. Aziz and Mukhtar from civilians to combatants. * * * * The Govermnent's evidence consists largely of a finding of youthful intent, in Yemen, to go to Afghanistan and fight for the Taliban, plus approximately two weeks at an inactive "Khoja Khar line," including a Sf:Clt~"h"BI'Bltf" 17

24 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 24 SECRB'fHNOFORN week or so of rifle practice. 9 None of the Guantanamo Bay cases decided by this Court rests on such meager evidence. It perverts the AUMF to conclude that such limited activity, all occurring before the United States military action, justifies what is turning out to be a life sentence. 9 The district court observed that Mukhtar submitted a declaration but did not submit to cross-examination. JA 12. The same, however, was true of the Government. It relied on statements prepared by Government personnel but made none of them available for cross-examination. The Government, moreover, has had Mukhtar locked in a prison for nearly a decade, and could "cross-examine" him at their pleasure. Mukhtar has had no opportunity to cross-examine the Government's witnesses. In these circumstances, it would be tragically unfair to draw adverse inferences against Mukhtar for failing to give live testimony. S CR THP,oFoa" 18

25 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 25 SECRETh'NOFORN II. MUKHTAR'S DETENTION VIOLATES LEGAL PRINCIPLES GOVERNING THE TREATMENT OF MEDICAL PERSONNEL. Even if the district court did not err in finding that Mukhtar was part of the Taliban after October 7,2001, the evidence shows that he was JJexclusively engaged" in medical work and so is not legally detainable. The Government's arguments to the contrary are unpersuasive. A. Mukhtar is not detainable under the AUMF, and Section 5(a) ofthe Military CommissionsActof2006 does notchange that. The Government argues that Section 5(a) of the Military Commissions Act of 2006 prohibits a habeas court from enforcing the Geneva Conventions. This argument has three basic flaws. First, Section 5(a) only prohibits invoking the Geneva Conventions JJas a source of rights," which Mukhtar does not seek to do. The IIsource of rights" that Mukhtar invokes instead is the right not to be imprisoned in violation of the law, as guaranteed by the Suspension Clause of the Constitution and codified at 28 U.S.C The Government responds that 2241 is merely a jurisdictional statute, comparing it to the federalquestion statute, 28 U.S.C See Gov't Br. 41. The Government is wrong: although subsection (a) of 2241 confers subject-matter jurisdiction SECRETHNoroRN 19

26 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 26 SECRET#l'~orORN to entertain habeas petitions, other portions of 2241 govern substantively the bounds of courts' habeas power. See, e.g., Noriega v. Pastrana, _ U.S. ---' 130 S.Ct. 1002, 1006 Gan. 25,2010) (Thomas,J., dissenting from the denial of certiorari) (noting that Boumediene v. Bush, 553 U.s. 723 (2008), did not address the constitutional relevance of " 2241's substantive provisions" (emphasis added». In particular, 2241 (c) (3) specifically confers on courts the power to grant the writ when a prisoner is "in custody in violation of the Constitution or laws or treaties of the United States." Moreover, while the one-sentence 1331 is captioned "federal question" and is in a chapter captioned"district courts; jurisdiction," the much lengthier 2241 is in a chapter called "habeas corpus" and is captioned "power to grant writ." Regardless, even if 2241 were purely jurisdictional, the"source of rights" that Mukhtar seeks to invoke is still not the Geneva Conventions. Rather, the source of his right would still be the writ of habeas corpus, which is guaranteed by the Suspension Clause. By its terms, Section 5(a) does not apply to this "source of rights." Notably, the Government does not dispute this proposition. Second, even if Section 5(a) did prohibit consideration of the Geneva Conventions in habeas cases, the Governmentwould still have the burden StiCR:IS~q:fOJ?OR:~l 20

27 Case: Document: Filed: 11/19/2010 Page: 27 SISClUsT;s~,orORP, of proving that Mukhtar's detention is affirmatively authorized by law. The only law under which it claims the authority to detain him is the AUMF, so it must show that his detention is permissible under the AUMF. The Government concedes that the AUMF must be interpreted in light of the laws of war, including the Geneva Conventions. Gov't Br. 43; accord, Hamdi, 542 U.S. at 521 (plurality opinion), (opinion of Souter, J., joined by Ginsburg, J.). The AUMF thus does not authorize detention that violates the Geneva Conventions. See Pet'r Br Section 5(a) does not purport to change the Government's detention authority under the AUMF, so it is irrelevant to the question of whether Mukhtar's detention is authorized. 10 Since the AUMF does not authorize detention in violation of 10 The Government conceded before the district court that Section 5(a) is relevant only II[t]o the extent that Warafi is attempting to invoke directly the First Geneva Convention as an independent source of rights for a private action in this proceeding." Resps.' Opp. To Pet'r Mukhtar Yahia Naji al Warafi's Mot. For Judgm. on the Rec. 15 n.9, D.D.C. Civ. No (Dec. 7,2009); see Pet'r Br. 46 n.13. Itcontrasted that argument with the argument that the Convention is relevant IIas a means of construing the Executive's detention authority under the AUMF," which it agreed would not be blocked by Section 5(a). ld.; see also Gov't Hr. 42 n.13 (arguing that /I[tlo the extent Al Warafi is seeking to invoke the First Geneva Convention as a source ofrights, he is in precisely the same position as the petitioner in AI-Adahi" (emphiasis added)). SISCRE'l)S'iorOR?f 21

28 Case: Document: Filed: 11/19/2010 Page: 28 the Geneva Conventions, there is no need to reach any argument that invokes the First Geneva Convention as a "source of rights" for a private action. Third, if Section 5(a) were construed to block consideration of the Geneva Conventions in this habeas proceeding, it would effect an unconstitutional suspension of the writ of habeas corpus. See Pet'r Br The Government's only argument otherwise is that Congress need not provide the right to enforce all treaty-based rights in habeas, see Gov't Br. 42, relying on Noriega v. Pastrana, 564 F.3d 1290, 1294 (11thCir. 2009).11 The constitutional issue, however, was not decided in Noriega because the parties agreed that no Suspension Clause issues were raised under the facts in that case. See Noriega, 564 F.3dat 1294 (noting that"the parties concede" that "[t]he issues present in Boumediene v. Bush... concerning the 11 Although Noriega goes on to hold that Section 5(a) blocks the relief the petitioner sought, the Government rightly does not rely on that holding. There, the right invoked - the right not to be extradited to France after Noriega had served his criminal sentence - existed solely pursuant to the Third Geneva Convention. Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.s.T The Convention thus was the "source of rights" and Section 5(a) applied. See Noriega, 564 F.3d at Here, in contrast, Mukhtar invokes the right not to be detained illegally, a right that exists independent of the Geneva Conventions. SI9CRI9Th~lOrOIUI 22

29 Case: Document: UNCLASSIFIEOIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 29 SECRETHPtOFOIUt constitutionality of 7 of the MCA[ ] are not presented by 5 of the MCA"). As the Supreme Court observed in Boumediene, the Framers of the Constitution considered the Suspension Clause an "exception" to Congress's power to regulate the courts that"guarantees an affirmative right to judicial inquiry into the causes of detention." Boumediene, 553 U.S. at ---I 128 S.Ct. at IfSection 5(a) means what the Government claims it means, then it would prevent an entire category of illegally detained prisoners from obtaining any relief from their illegal imprisonment. Their detention would remain illegal; the courts would just be prohibited from doing anything about it. This is exactly what the Suspension Clause prohibits. The Government must show that Mukhtar's detention is authorized by law. The only source of law it cites for that authority is the AUMF, which the Government concedes is interpreted in light of the Geneva Conventions. The AUMF does not authorize detention that violates the Conventions. SECRETHNOFORN 23 UNCLASSIFIEOIIFOR PUBLIC RELEASE

30 Case: Document: Filed: 11/19/2010 Page: 30 SI9CRI9If;S'l'IQF8RN B. Mukhtar's detention is also illegal directly under the First Geneva Convention and under otherwise applicablefederal law. Petitioner's opening brief explained that Mukhtar's detention is unauthorized not only by the AUMF, butalso under three independently enforceable provisions of federal law: the First Geneva Convention itself; Army Regulation 190-8; and the Yemen Friendship and Commerce Agreement. See Pet'r Br The Government appears to contest only the first of these three arguments, asserting that the Geneva Conventions are not self-enforcing. 12 See Gov't Br Its argument is unpersuasive The Government's brief never mentions Army Regulation or the Yemen Friendship and Commerce Agreement, each of which provides an additional basis for granting the petition. The Army Regulation, moreover, is not even arguably affected by Section 5(a) because its provisions for release of medical personnel are stated in its own terms, without citing the Geneva Conventions. 13 The Government makes these arguments only by incorporating by reference a section of a brief it filed in another case, apparently to circumvent the Court's word limit. See Gov't Br. 40; see also id. at n.18 (citing Government submissions in two other cases). Incorporation by reference does not preserve a party's position, so this Court should refuse to consider the Government's arguments. See Fed. R. App. P. 28(a) (9) (A) (providing that the argument section must contain the //appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies"); accord, Albrechtsen v. Bd. ofregents ofthe Univ. ofwzse. Sys., 309 F.3d 433, 436 (7th Cir. 2002) (noting that 1/appellate briefs may not incorporating other documents by reference" 8F!CItE'i)~'f'Of8JU' 24 (footnote continued on next page...)

31 Case: Document: Filed: 11/19/2010 Page: 31 SECftEJ'h't,OFORlv The Governmentcites a footnote in Johnson v. Eisentrager, 339 U.S. 763, 789 n.14 (1950). Eisentrager considered thegeneva Conventions of1929, so its holding does not bind this Court in interpreting the 1948 Conventions. Regardless, whatever persuasive force the Eisentrager footnote may have once had, it has been fatally undermined by Hamdan v. Rumsfeld. In Hamdan, the SupremeCourtheld that, despite Eisentrager, a detainee was entitled to a writ of habeas corpus when the Government's plan to try him before a military commission violated the Geneva Conventions. 548 U.S. at The Hamdan Court noted that the Eisentrager footnote came after the Court had dismissed the Eisentrager petitioners' Geneva Conventions claims on the merits. ld. at 626. Its discussion of the Conventions' enforceability was therefore dicta. The Court then noted that the "curious" Eisentrager footnote was in significant tension with statements in the official Red Cross Commentaries that the Conventions of 1949 exist "first and foremost to protect individuals, [] not to serve State interests" and that "It should be possible in States which are parties to the (footnote continued from previous page...) and reversing a judgment when plaintiff failed to preserve arguments); R.I. Dep't ofenv. Mgmt. v. United States, 304 F.3d 31, 47n.6 (1st Cir. 2002). i i~i1ijs~jqpqr:~j 25

32 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 32 SECItETj}'NOflOKM Convention... for the rules of the Convention.., to be evoked before an appropriate national court by the protected person who has suffered the violation." Id. at nn Eisentrager may have been right that the Conventions of 1929 were enforceable only through international diplomacy, but the same is not true of the 1949 Conventions. Cf Hamdan, 548 U.S. at627 n.57 (notingthat'" [ijt was not... until the Conventionsof that the existence of "rights" conferred on prisoners of war was affirmed'" (ellipses in original; alteration added)). The Conventions employ precisely the kind of rights-creating language that the Supreme Court has repeatedly held makes a treaty enforceable in court. See Pet'r Br The Geneva Conventions are therefore selfexecuting and judicially enforceable, as are Army Regulation and the Yemen Friendship and Commerce Agreement. See Pet'r Br C. Mukhtar was "exclusively engaged" in medical work and is therefore protected under Article 24 ofthe First Geneva Convention. The Government argues that the district court's findings show that Mukhtar is not protected under Article 24 of the First Geneva Convention. The argument is meritless. fsjicrji=qs~lofoiul 26

33 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 33 SECRE't'h'N0fORl, The First Geneva Convention distinguishes between personnel whose duties are exclusively medical and those who only occasionally perform medical functions. Article 24 provides that "[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," among others, are protected"in all circumstances." 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. 3114,3132 (the First Geneva Convention) (emphasis added). Article 25, in contrast, provides that "[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" are protected if they are performing such medical functions when captured. Id., art. 25, 6 U.ST. at 3132 (emphasis added). Medical persormel who are "exclusively engaged" in medical functions may be retained only as needed to treat prisoners of war, while members who only perform medical functions "should the need arise" may be detained as prisoners ofwar. Id., arts , 6 U.S.T. at3134. The Red Cross Commentary to the Convention reinforces this distinction between full-time medical personnel, on the one hand, and BECItFJ"Hf'OfiORf4 27

34 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 34 SECRE9fHftOFORP, other military personnel with some incidental medical training. It explains that"medical personnel proper," as defined in Article 24, "are the doctors, surgeons, dentists, chemists, orderlies, nurses, stretcher-bearers, etc.~ who give direct care to the wounded and sick." Pictet et al., Commentary I: Geneva Convention for the Amelioration ofthe Condition ofthe Wounded and Sick in Armed Forces in the Field218 (1952) (Red Cross Commentary). Such personnel must be "exclusive employed" on medical duties. ld. Article 25, in contrast, addresses"auxiliary personnel," which it explains are"only employed for part oftheir time on such [medical] d utles" and IIare, when necessary - that is to say, occasionally - used by their officers to search for or look after the wounded." ld. at 221 (emphasis added). Such auxiliary personnel might include, for instance, an infantryman with some first-aid training who tends to a wounded comrade and helps carry him off the field. The district court said that Mukhtar worked in clinics"on an as needed basis within the command structure of the Taliban," JA 17, but there is no indication that the court meant that Mukhtar worked part-time or nonexclusively as a medical worker. The district court's statement was made in the context of concluding that Mukhtar worked in medical clinics "within BECItE'f;)'N8f6ItN 28

35 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 35 8EiCRE'f~vOFOlMJ the command structure of the Taliban," rather than working"on his own volition, free from the Taliban's command." JA 17. The Court explained that Mukhtar "volunteered to serve as a medic when a superior asked for volunteers" and "was transferred from the clinic in Dastereshi to the clinic in Konduz," which showed that he "functioned within the command structure of the Taliban" even as he was working in clinics. JA In this context, the district court's statement that Mukhtar "served as a medic on an as needed basis within the command structure of the Taliban" means only that in serving as a medic, he was doing what the Taliban "needed," such as moving from one clinic to another when directed. The district court did not address the relevant question under the Geneva Conventions: was Mukhtar working exclusively at the clinics or only occasionally "should the need arise"? The district court's ruling that Section 5(a) barred consideration of the Geneva Conventions made it unnecessary for it to deal with this question. The district court had reached the incorrect legal conclusion that Mukhtar was detainable if he "provided medical service within the Taliban's command structure." JA 15. The court therefore made no attempt to determine whether Mukhtar was a full-time or occasional medical worker. None of the court's findings suggest that SECR 'fhnoforn 29

36 Case: Document: UNCLASSIFIEOIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 36 Mukhtar was anything other thana full-time worker. The court never said or implied either that Mukhtar worked only part-time or that he performed any non-medical functions after he went to work in the clinics. There is' no evidence that Mukhtar was anything other than a full-time medical worker, and it is apparent from his declaration that he was a full-time worker. See JA The Government points out that medical personnel protected under Article 24 cannot perform other military functions or do anything harmful to the enemy, see Gov't Br , but there is no evidence that Mukhtar ever performed any non-medical functions after he started at the clinics or that he ever did anything harmful to anyone. 14 The Government argues that the training he received was of the kind that Article 25 addresses, pointing to the Article's limitation of temporary medical personnel to 14 The Government also notes, See Gov't Br. 50, that Mukhtar did not carry a card identifying himself as a medical worker. Nothing in the Convention or the Commentaries says, however, that a medical worker loses his protections if he does not carry an ID card. To the contrary, Article 21 says that the Convention's protections for medical workers"shall not cease" unless the medical workers"are used to commit, outside their humanitarian duties, acts harmful to the enemy" - and even then only after advance warning. First Geneva Convention, art. 21, 6 U.S.T. at SflCltfl!'h'.qOfOltfq 30 UNCLASSIFIEOIIFOR PUBLIC RELEASE

37 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 37 SECRE1»'UOFORU "hospital orderlies, nurses, or auxiliary stretcher-bearers." See Gov't Br. 49. Yet as thered Cross Commentary explains, "orderlies, nurses, stretcherbearers, etc." are protected under Article 24 just like doctors and dentists, so long as they are " exclusively engaged" in medical work. See Red Cross Commentary at 218. There is no evidence that the medical training Mukhtar received from Dr. Aziz, combined with his experience in his brother's medical clinic in Yemen, see JA 3, , was insufficient for a full-time orderly or clinic assistant. The Government also argues that the weapons training found by the district court shows that Mukhtar was not a full-time medical worker. See Gov't Br. 52. The Convention expressly provides, however, that medical. workers remain protected even if they are armed 'or use arms in their own defense. See First Geneva Convention, art. 22, 6 u.s.t. at The Government does not allege, and there is no evidence, that Mukhtar ever performed non-medical functions or did anything "harmful to the enemy," which would render him unprotected. See id., art. 21, 6 U.s.T. at3130. The minimal rifle training that the district court found Mukhtar received, and the finding that he had a weapon when he "surrendered" to the Taliban, does not strip him of Article 24 protections. SECRE'fHtlOFORU 31

38 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 11/19/2010 Page: 38 Because the evidence that Mukhtar was a full-time medical worker is essentially unrebutted, this Court should hold as a matter of law that he is entitled to the protections afforded to those exclusively engaged in medical work at the time of their capture. At worst, the case should be remanded so that the district court can detennine de novo whether Mukhtar was a fulltime medical worker at the time of his capture. 15 * * * * * The Government does not dispute that the Geneva Conventions limit the scope of its detention authority under the AUMF. Even if Mukhtar were a member of the Taliban after October 7, 2001, which he denies, he was a full-time medical worker who cannot be legally detained. He is therefore entitled to a writ of habeas corpus. 15 The Government argues that a remand should consider a variety of issues that it never raised in the district court when it had the chance to do so. Gov't Br Its attempt to assert new issues is untimely and should be rejected. flbcfte'i'ht.ofor1~ 32