Mukhtar Yahia Naji AL WARAFI, Appellant v. Barack OBAMA, Appellee, 716 F.3d 627

Opinion for the Court filed by SENTELLE, Senior Circuit Judge. Concurring opinion filed by Circuit Judge BROWN. SENTELLE, Senior Circuit Judge: 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. The case began with habeas corpus proceedings in the district court, which concluded with a judgment against Al Warafi reported as Al Warafi v. Obama, 704 F.Supp.2d 32 (D.D.C.2010).

Background facts of Al Warafi’s detention and the district court’s rejection of his habeas claim are set forth in the district court opinion. The district court concluded that “petitioner was more likely than not part of the Taliban,” and “is being lawfully detained.” Id. at 45. 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, 409 Fed.Appx. 360 (D.C.Cir.2011).

We agreed with the district court that “A Warafi was more likely than not a part of the Taliban.” Id. However, we directed the district court on remand to develop a further record on A Warafi’s fallback position that “even if he was a part of the Taliban, the district court should have granted his petition because he served permanently and exclusively as ‘medical personnel’ within the meaning of

Article 24 of the First Geneva Convention and

Section 3 — 15(b)(1)—(2) of Amy Regulation 190-8.” Id. 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, 821 F.Supp.2d 47, 56 (D.D.C.2Ó11). Because we conclude that the’ district court is correct, we affirm the second denial of A Warafi’s petition for habeas corpus. 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. The commentary to the First Geneva Convention declares that

Article 24 personnel “are to be furnished with the means of proving their identity.” GC Commentary

Article 40 of the First Geneva Convention mandates that “[t]he personnel designated in

Article 24 ... shall wear, affixed to the left arm, a water-resistant armlet bearing the distinctive emblem, issued and stamped by the military authority.” In addition to mandating the wearing of the armlet,

Article 40 further declares that“[s]uch personnel ... shall also carry a special identity card bearing the distinctive emblem.” That card “shall be water-resistant and of such size that it can be carried in the pocket.” It further “shall be worded in the national language,” and include the full name, date of birth, rank and service number of the bearer, and “shall state in what capacity he is entitled to the protection of the present Convention.” The

Article further requires that “[t]he card shall bear the photograph of the owner and also either his signature or his finger-prints or both.” Just as the armlet must bear the stamp of the military authority issuing it, the card “shall be embossed with the stamp of the military authority.” (Emphases added.) It is undisputed that Al Warafi wore no such armlet and carried no such card. For that reason, in our remand order, we stated that “it appears that Al Warafi bears the burden of proving his status as permanent medical personnel.” Al Warafi v. Obama, 409 Fed.Appx. 360.

On remand, the district court reviewed the evidence. The court opined that the Convention created “a straightforward regime in which proper identification is necessary to prove one’s protected status as permanent medical personnel.” 821 F.Supp.2d at 54 (emphasis in original). In the end, the court concluded that Al Wara-fi’s petition “will be denied.” 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, 707 F.3d 311 (D.C.Cir.2013) (emphases added) (other emphasis omitted). See also LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C.Cir.1996) (en banc) (“The same issue presented a second time in the same case in the same court should lead to the same result.” (emphases omitted)).

While this is the same question in the same court, we did not decide the question in the unreported order upon which Al Warafi relies. Concededly, the unpublished order is consistent with his

interpretation, but it is also consistent with a court which remained agnostic as to the question at issue. Again, we did not decide the question. We left the question open and remanded the case to the district court for further development. On remand, the district court reinstated its prior decision with further discussion of the determinative question, and an apparent firm conviction that other evidence could not substitute for the indi-cia of medical personnel status recited in the Convention and in the Army Regulation. Upon review, we agree with the district court.

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.” 821 F.Supp.2d at 49. It reiterated its earlier finding that it was more likely than not that A1 Warafi was part of the Taliban.

The court further reiterated the well-established law that in habeas proceedings such as this, the government bears the burden “to prove that petitioner’s detention is lawful.’’ That is, the government must prove “ ‘that petitioner more ; likely than not was part of the Taliban’ at the time of his capture.” 821 F.Supp.2d at 53 (citing Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C.Cir.2010)). The court renewed its conclusion that the government had met that burden.

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.’ ” 821 F.Supp.2d at 53-54 (quoting Hamdi v. Rumsfeld, 542 U.S. 507, 534, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality opinion)).

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., 659 F.3d 13, 19 (D.C.Cir.2011). The evidence in the record gives credence to the view that A1 Warafi is unable to provide the proof required under the Convention because he was not a medic. We would further emphasize that given the strong mandatory language of the Convention, we affirm the district court’s decision. As the district court stated: 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. 821 F.Supp.2d at 56. Without compliance with the requirements of the Geneva Conventions, the Taliban’s personnel are not entitled to the protection of the Convention. 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. .

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.