[00:00:00] Speaker 01: Case number 23.5251. [00:00:03] Speaker 01: Amar Al-Baluchi, also known as Ali Abdul Aziz Ali, at balance, versus Lloyd J. Austin III, Secretary of Defense at AL. [00:00:13] Speaker 01: Ms. [00:00:13] Speaker 01: Pradhan for the at balance, Mr. Schultz for the at police. [00:00:18] Speaker 05: Morning. [00:00:19] Speaker 05: Good morning, Your Honors, and may it please the court. [00:00:21] Speaker 05: My name is Alka Pradhan. [00:00:23] Speaker 05: I'm here to represent Amar Al-Baluchi, case of Al-Baluchi versus Austin. [00:00:27] Speaker 03: your voice is very quiet and help if you speak up a little bit. [00:00:31] Speaker 03: Of course. [00:00:32] Speaker 05: Is that a little bit better? [00:00:33] Speaker 05: Okay. [00:00:33] Speaker 05: Thank you. [00:00:34] Speaker 05: Of course. [00:00:35] Speaker 05: Mr Albaluchi is a torture victim who's been detained at Guantanamo Bay since 2006. [00:00:41] Speaker 05: His brain is damaged and he suffers from progressing spinal tumor among other complex conditions. [00:00:48] Speaker 05: Regarding the central questions in this case, we're asking the court to find that the secretary of the army does not have the authority [00:00:55] Speaker 05: to unilaterally change a multi-service regulation like AR 190-8. [00:01:01] Speaker 05: And we asked the court to reconfirm the AR 190-8 from its plain language and from nearly every interpretation of the regulation by both the government and by courts supports Mr. Al-Baluchi's right to a mixed medical commission under the regulation. [00:01:18] Speaker 05: Beginning with the Secretary of the Army's memo, [00:01:21] Speaker 06: With regards specifically to- Probably begin with jurisdiction. [00:01:25] Speaker 05: Certainly. [00:01:27] Speaker 06: In question here. [00:01:29] Speaker 05: Certainly, Your Honor. [00:01:30] Speaker 05: So the issue of jurisdiction is, what we're saying is that the denial of the mixed medical commission by the district court had the practical effect of denying an injunctive relief because of the irreparable harm to Mr. Al-Baluchi that can only be effectively challenged by immediate appeal under 1292A1. [00:01:51] Speaker 06: What exactly is the irreparable harm that would be remedied if we heard your appeal and ruled for you? [00:02:00] Speaker 05: Sure. [00:02:00] Speaker 05: So this essentially, this case essentially inverts this court's denial of the government's appeal in the Katani case in September 2020. [00:02:09] Speaker 05: And there are several factors contributing to irreparable harm here. [00:02:13] Speaker 05: The first I recall in Boumediene, the Supreme Court saying that the cost of delay can no longer be borne [00:02:19] Speaker 05: by those who are held in custody. [00:02:20] Speaker 05: And that is the case for Mr. Albaluchi here. [00:02:23] Speaker 05: He has been in custody without trial for nearly 22 years. [00:02:27] Speaker 05: He has serious documented medical conditions that are contained in four expert reports that we've submitted and in the DOD medical records that we've submitted. [00:02:36] Speaker 05: And those are in the joint appendix 183 to 223 and 293 to 324. [00:02:44] Speaker 05: And [00:02:45] Speaker 05: set different from the Katani case. [00:02:48] Speaker 05: Mr Aboluchi has had his habeas proceedings suspended at the district court since 2019 pending a final outcome from his military commission proceedings at Guantanamo Bay. [00:02:59] Speaker 05: And so the this particular issue of the mixed medical commission, this is a final order on the mixed medical commission issue as opposed to his habeas for at large. [00:03:09] Speaker 05: And there is no opportunity for this particular [00:03:14] Speaker 05: finding by the district court to be reviewed until the end, potentially the end. [00:03:19] Speaker 06: It just seems like to get jurisdiction in the district court, you have to say you're not seeking an injunction because you don't have jurisdiction in the district court for injunctive relief. [00:03:35] Speaker 06: And then you turn around here to get us to give you grant jurisdiction [00:03:44] Speaker 06: of an interlocutory or collateral order, you say, well, this is really just like an injunction. [00:03:51] Speaker 05: Well, your honor, there's a little bit more nuance than that. [00:03:54] Speaker 05: And we believe the government in their brief took our statement at the district court a little bit out of context. [00:03:59] Speaker 05: We argued below that we weren't seeking injunctive release in the habeas case itself, because the government was arguing that the request for mixed medical commission was functioning as a request for a permanent injunction on his habeas case writ large. [00:04:13] Speaker 05: The request for a mixed medical commission is different. [00:04:16] Speaker 05: It seeks immediate, specific action under the Army regulation. [00:04:20] Speaker 05: And regardless of labels, the practical effect test, which is what we're relying on here for jurisdiction, focuses on substance. [00:04:27] Speaker 05: Denying the mixed medical commission had the same effect as denying injunctive relief. [00:04:32] Speaker 05: And it foreclosed medical evaluation. [00:04:35] Speaker 05: It caused irreparable harm in the manner that I've just described. [00:04:38] Speaker 05: I'm happy to talk about that in more detail. [00:04:40] Speaker 06: But I guess, just to get down to brass tacks, I'm very much kind of like a realist. [00:04:46] Speaker 06: Yes, sir. [00:04:48] Speaker 06: The mixed medical commission does not, those doctors aren't treating your client. [00:04:57] Speaker 06: So to the extent that there's any damage or injury or treatment that he's not receiving, they're not going to give that to him. [00:05:09] Speaker 06: So, so what is the how is he make a plane for me how he is irreparably harmed if he does not get this mixed medical commission review right now as opposed to after the proceedings have completed. [00:05:33] Speaker 05: Sure, I have two points for that judge Wilkins. [00:05:36] Speaker 05: speaking practically, although the United States itself has not convened mixed medical commissions previously, mixed medical commissions are something that have been convened under international law in several different armed conflicts. [00:05:50] Speaker 05: And the practical reality of the mixed medical commission is that because they are convened by three physicians, those physicians, there are actually three possible outcomes of a mixed medical commission. [00:06:02] Speaker 05: The first is that [00:06:03] Speaker 05: They can decide that the status quo is fine. [00:06:06] Speaker 05: This person is fit to remain detained. [00:06:08] Speaker 05: No notes. [00:06:09] Speaker 05: The second is that they can find that the person is currently fit to remain detained, but that they may have, as Mr. Valvalucci does, serious medical conditions that require perhaps some adjustments or require some treatment. [00:06:22] Speaker 05: And third, they can order release. [00:06:23] Speaker 05: And that is the way in which medical commissions have, in fact, functioned when convened by the RCRC. [00:06:29] Speaker 05: So that's the first note is that, yes, they are not directly treating Mr. Al-Baluchi, but the findings of the Mixed Medical Commission do bind the US government under AR- They can't order release. [00:06:40] Speaker 06: They can't, under the Army regulation, they can't, Mixed Medical Commission can't say, let him out of Guantanamo today. [00:06:48] Speaker 06: And the Army has to let him out of Guantanamo today. [00:06:53] Speaker 05: Well, first of all, it would be the Joint Task Force at Guantanamo [00:06:56] Speaker 05: that is ultimately in charge of detaining him, not the army per se. [00:07:02] Speaker 05: But with regards to the provisions of AR 190-8, the findings of the Mixed Medical Commission, if they were to order the release of Mr. Albaluchi, they can in fact order that he is no longer fit to remain detained. [00:07:15] Speaker 05: And that finding does bind the government to carry out his release within three months. [00:07:23] Speaker 07: I believe the government points out, at least in Article 115 of the convention, it says, seems to say, no, actually, it is only binding and is required to be carried out once the military commission proceedings conclude. [00:07:39] Speaker 07: And that's the one issue I'd love to hear your response to. [00:07:43] Speaker 05: Certainly, Your Honor. [00:07:44] Speaker 05: And the government includes this as sort of a non-legal non-sequitur. [00:07:48] Speaker 05: It is actually, I hesitate to say this, but it is actually [00:07:53] Speaker 05: that is what Article 115.1 says. [00:07:57] Speaker 05: The government cites Article 115.1 and then cites the ICRC commentary on that article. [00:08:03] Speaker 05: And the ICRC commentary makes clear the very opposite, and that's at page 4398 to 4399 of the ICRC commentary. [00:08:10] Speaker 05: I'd be happy to submit it in a 28-J letter. [00:08:13] Speaker 05: It says, and I quote, it is not, Your Honor. [00:08:18] Speaker 06: What is the page site? [00:08:20] Speaker 05: Page site is 4398 to 4399 of the ICRC commentaries, specifically on Article 115.1. [00:08:27] Speaker 05: And it says, and I quote, Article 115.1 does not permit wounded and sick prisoners to be kept back on the plea that they are undergoing disciplinary punishment. [00:08:37] Speaker 05: They must also be examined by a mixed medical commission if they are so entitled. [00:08:41] Speaker 05: And the detaining power must carry out the MMC decision within three months, even if entire disciplinary punishment cannot be executed. [00:08:49] Speaker 05: The Geneva Conventions make very clear the prioritization of medical care of detainees over prosecution and, in fact, serving of sentences. [00:08:59] Speaker 05: And this is in keeping with the overall point of the Geneva Conventions, which is to ensure the safety and security of detainees, of all detainees under international law. [00:09:08] Speaker 03: The commentary that I'm looking at says it's Article 115, [00:09:16] Speaker 03: 4402, the repatriation or accommodation in a neutral country convicted and detained prisoners of war who are wounded or sick is conditioned on the consent of the detaining power. [00:09:31] Speaker 03: Accordingly, the detaining power may keep the prisoner of war detained for the duration of the judicial proceedings or until they have served their sentences. [00:09:43] Speaker 03: Is that not applicable? [00:09:44] Speaker 05: No, Your Honor. [00:09:45] Speaker 05: And I think, well, it's not that it's not applicable. [00:09:48] Speaker 05: It's that when you put it against the commentary on Article 115, it makes clear that the prioritization is for medical care. [00:09:55] Speaker 05: So yes, generally, of course, the detaining power can make a decision with regards to the wounded and sick and how sick they are. [00:10:02] Speaker 05: But once they are seen by a mixed medical commission, and if a mixed medical commission recommends release, it is not up to the detaining power to determine how long to hold them. [00:10:15] Speaker 03: Well, it talks about, I guess it's talking about the repatriation of people who are wounded or sick and saying that it's conditioned on the consent of the detaining power. [00:10:26] Speaker 03: And you're saying that's not referring to someone who's wounded or sick and been held to be eligible for repatriation by mixed medical condition permission. [00:10:36] Speaker 05: So again, I don't think that these two, I don't think that these two provisions are necessarily intention. [00:10:42] Speaker 05: But I think that there is a tipping point. [00:10:45] Speaker 05: And what this says specifically is, yes, the detaining power has discretion as to when the wounded and sick can be repatriated. [00:10:55] Speaker 05: But there is a tipping point. [00:10:56] Speaker 05: And that's what the commentary in Article 115.1 refers to, which is it does not permit those detainees or those prisoners to be kept back just because they're undergoing disciplinary punishment or undergoing prosecution. [00:11:09] Speaker 05: And then with regards to the mixed medical commission provision, it specifically prohibits the detaining power to allow them to continue to serve their sentence. [00:11:18] Speaker 03: So are you referring to commentary on Article 115-1? [00:11:24] Speaker 03: Yes, ma'am. [00:11:26] Speaker 03: And I think the government is referring to the commentary on Article 115-2, which 115-1 is about [00:11:39] Speaker 03: disciplinary punishment and 152 is about, uh, treatment in connection with the judicial prosecution. [00:11:49] Speaker 03: So isn't this more a judicial prosecution than a then disciplinary punishment? [00:11:55] Speaker 05: Well, at the moment, it's, uh, we're not really sure what it is to be perfectly honest, because Mr Abolucci again is being held without trial for nearly 22 years. [00:12:06] Speaker 05: So [00:12:07] Speaker 05: There is a judicial process ongoing, but the overall point really is that the Geneva Convention specifically contemplate a possible tension between the need for medical care and the need for repatriation and a continued judicial proceeding or a continued serving of sentence and prioritizes the need for medical care. [00:12:31] Speaker 03: Are you talking about under 115-2 that it's prioritizing the need for repatriation? [00:12:36] Speaker 03: Because it seems to me explicitly to say that they could be repatriated only if the detaining power consents. [00:12:44] Speaker 03: And then the commentary says that it's the prerogative of the detaining power to keep a prisoner of war detained for the duration. [00:12:53] Speaker 05: Yes, Your Honor. [00:12:54] Speaker 05: But the fact that included in the commentary on Article 115-1 [00:12:58] Speaker 05: is the specific provision for a mixed medical commission to examine these prisoners despite any ongoing disciplinary proceeding and this disciplinary proceeding. [00:13:09] Speaker 05: But despite that specifically contemplates the possibility that medical care may have to circumvent any prosecution or judicial proceedings regarding these detainees. [00:13:24] Speaker 03: So what is the [00:13:27] Speaker 03: practical effect of injunction. [00:13:30] Speaker 03: What is the irreparable harm that in order to convene a mixed military commission would redress? [00:13:40] Speaker 05: So Mr. Al-Baluchi seeks an independent evaluation of his medical conditions by the government. [00:13:48] Speaker 05: And the key is that this provision, section 312 of AR 190-8, is binding on the government. [00:13:54] Speaker 05: He has had a number of independent experts examine [00:13:57] Speaker 05: And the court has those reports in front of it indicating that he has serious medical conditions. [00:14:05] Speaker 05: And those are bolstered by the DOD medical records on that. [00:14:09] Speaker 05: But the point is, none of those are actually binding in terms of what the government has to do about it. [00:14:16] Speaker 05: So Section 312 provides that sort of binding procedure by which he can get an evaluation that says, yes, he's fit to stay detained. [00:14:27] Speaker 05: Yes, he's fit to stay detained, but requires this sort of treatment, which is the way in which mixed medical commissions have been carried out in the past. [00:14:36] Speaker 05: Or actually, he's not fit to continue treatment. [00:14:39] Speaker 05: He's got a spinal tumor that may require surgery. [00:14:42] Speaker 05: And he needs to be repatriated or sent somewhere where he can get that care. [00:14:46] Speaker 03: So assuming that we agreed with you that there's jurisdiction here in terms of the relief, I gather that the argument is really the crux of it is under Army regulation 190-8. [00:15:09] Speaker 03: And I guess my question is, are you arguing that your client is entitled to a mixed military commission under the Geneva Convention itself or under AR 190-8? [00:15:22] Speaker 05: It's under AR 190-8. [00:15:24] Speaker 05: And the argument is that it's by its plain language and also, and this is the part that requires some history, by the government's own application of AR 190-8. [00:15:37] Speaker 05: So for example, [00:15:38] Speaker 05: The detention memorandum that was filed in 2009 that the government initially filed in Mr. Al-Baluchi's habeas case, which I apologize is not part of the record and I'm happy to submit it, states explicitly that principles derived from international armed conflict must inform the interpretation of detention authority over the current conflict. [00:15:59] Speaker 05: So you have the government arguing in 2009 that in fact we have to import principles of international armed conflict to [00:16:08] Speaker 05: this new conflict against a non-state actor, against al-Qaeda and associated forces. [00:16:13] Speaker 07: Following that memo and echoing the government's... Why is what you just said in any tension with the government's position that he's entitled to Article 3 type minimum protections, but not the elevated protections of prisoner of war status? [00:16:27] Speaker 05: Because Judge Garcia, following that memo and in accordance with the government's previously stated position in the Hamdi case in 2004, [00:16:36] Speaker 05: The government argued for the application of Article 5 status determinations via implementation of AR 190-8 to Guantanamo detainees in the Al Bihani case before this court and in their opposition to cert before the Supreme Court in the Al Warafi case. [00:16:52] Speaker 05: This court agreed in honor that AR 190-8, that AR 190-8 was the applicable domestic law to Guantanamo Bay. [00:17:02] Speaker 05: And so it is our position that Mr. Al Baluchi, [00:17:06] Speaker 05: is has the government's position is that Mr. Al Baluchi is an alien, unprivileged enemy belligerent. [00:17:12] Speaker 05: And it is the long standing position of courts and the government that the [00:17:19] Speaker 05: designation or title of AUEB or enemy combatant, as Judge Collier reasoned in the Katani case, does not strip Mr. Albaluchi or any Guantanamo detainees of the categorization of other detainees, which very plainly on its face applies to them, of AR 190-8. [00:17:38] Speaker 05: Other detainees are entitled to the provisions available to enemy prisoners of war under that regulation. [00:17:44] Speaker 03: Well, Judge Collier is so held in Guantanamo reading this rule, but you have not referred us to anywhere where the government took that position. [00:17:54] Speaker 05: The government, excuse me, the government's position is that Article 5 status determinations as implemented in AR 190-8 are applicable and have been applicable to Guantanamo detainees. [00:18:09] Speaker 05: And so, for example, in the Albihani case, they specifically quoted AR 190-8. [00:18:14] Speaker 05: and said Article 5 status determinations and footnote AR 190-8 for that. [00:18:20] Speaker 05: And that is in keeping again with their view that principles of international armed conflict must be applicable. [00:18:27] Speaker 03: I'm not sure that I'm meshing this with what I read in your briefs. [00:18:32] Speaker 03: I thought you were arguing that AR-198 entitles your client to a mixed military commission because, in your view, he qualifies as an other detainee, not because he qualifies as a UEB or that a UEB is necessarily treated as equivalent to an enemy prisoner of war. [00:18:53] Speaker 03: Is that right? [00:18:54] Speaker 05: That's correct, Your Honor, and I apologize if I've not been clear enough. [00:18:58] Speaker 05: So following Judge Collier's reasoning in Katani, [00:19:02] Speaker 05: In Katani was a little bit different. [00:19:04] Speaker 05: He was categorized as an enemy combatant. [00:19:06] Speaker 05: That was his title. [00:19:07] Speaker 05: The reasoning, however, is exactly the same, in that both enemy combatants and AUEB fall outside of the categorizations in AR 190-8. [00:19:18] Speaker 05: So in the glossary of AR 190-8, the category of other detainee is applied to anyone who does not fall in the other three categories, specifically delineated in AR 190-8. [00:19:34] Speaker 07: uh, disputing that the character of the conflict pursuant to which Mr Al Baluchi was detained is non international. [00:19:43] Speaker 07: No, not at all. [00:19:44] Speaker 07: You're you are accepting that it is from a non international conflict. [00:19:49] Speaker 05: We accept that it's a non international armed conflict. [00:19:52] Speaker 05: The other source. [00:19:53] Speaker 05: Um, but however, just to follow the reasoning as to why Mr Al Baluchi falls under AR 190 dash eight, [00:20:03] Speaker 05: Because the category of a we be is an other detain isn't falls into that that catch all under the glossary of a R one 90 dash eight other detainees are specifically under section one six of a R one 90 dash eight afforded the same. [00:20:19] Speaker 05: of rights that are given to enemy prisoners of war. [00:20:22] Speaker 03: I thought, I'm sorry to stop you, but I thought I just heard you say that the glossary defines a UEB as an other detainee. [00:20:29] Speaker 03: No, Your Honor. [00:20:30] Speaker 03: No, it doesn't. [00:20:30] Speaker 03: No, it doesn't, no. [00:20:32] Speaker 03: It just says that the other detainee, and that, I understand that to be, so assuming that we treat the regulation as applying to non-international armed conflicts, [00:20:46] Speaker 03: It by its terms is restricted to certain EPWs and RPs and your argument is that your client should provisionally be treated as an enemy prisoner of war. [00:21:01] Speaker 03: Right? [00:21:02] Speaker 03: You're not arguing that he's a retained personnel or a civilian internee. [00:21:06] Speaker 03: No, you're not. [00:21:07] Speaker 03: Or even an enemy prisoner of war, but that he should be treated provisionally as an enemy prisoner of war pending any status determination. [00:21:17] Speaker 05: That's correct. [00:21:18] Speaker 05: And the reason for that, again, is going back to the government's own argument that Article 5 status determinations that are normally found in international armed conflict are and have been long applicable [00:21:31] Speaker 05: to Guantanamo to be detainees. [00:21:33] Speaker 03: And the bookend between- So if somebody were a retained personnel, they were a medic, and they were at Guantanamo, that would assist them. [00:21:44] Speaker 03: But here, there's no claim that your client is a medic, for example, or a cleric. [00:21:50] Speaker 03: No, you're not. [00:21:53] Speaker 03: So if it were determined, and I understand that you have some questions about the authority behind the determination, but if it had been determined that your client's status is unprivileged, enemy, belligerent, [00:22:07] Speaker 03: That's the end of your argument, right? [00:22:09] Speaker 03: Because if he's so determined, that is in contradistinction to an enemy prisoner of war. [00:22:17] Speaker 03: An unprivileged enemy belligerent is someone who is not fighting on behalf of a nation state and the other requirements of insignia and whatever. [00:22:29] Speaker 03: So the provisional grant of enemy prisoner of war status would no longer be applicable because [00:22:37] Speaker 03: it would be clear that he's not an enemy prisoner. [00:22:40] Speaker 05: No, Your Honor, for a couple of reasons. [00:22:43] Speaker 05: This court in Amherst too, found that the mere designation of enemy combatant, which is another designation that falls outside of AR 190-8, does not render AR 190-8 inapplicable. [00:22:56] Speaker 05: Again, for the purpose of application of the regulation to Guantanamo detainees. [00:23:03] Speaker 05: And then Judge Collier followed that [00:23:05] Speaker 05: reasoning, we believe that Judge Collier got it right in saying that, look, enemy combatancy or AUEB or any other designation that falls outside of AR 190-8. [00:23:18] Speaker 05: And I will quote Judge Collier. [00:23:21] Speaker 05: She said, he remains an other detainee because the descriptor is not found in AR 190-8. [00:23:28] Speaker 05: He remains another detainee for the purposes of the regulation and is by its terms [00:23:33] Speaker 05: entitled to rights available to EPWs, including the MMC. [00:23:37] Speaker 05: Now, I just want to note that this determination about status turns on the application of Article 5 of the Geneva Conventions, which are generally available during international armed conflicts. [00:23:49] Speaker 05: And so taking the government's statement in their memo of 2009, that principles of IACs must be applicable to Guantanamo, and the 2023 version of the DOD law form manual, which the government states [00:24:03] Speaker 05: is the DOD's authoritative statement on the law of war. [00:24:06] Speaker 05: That manual states at section 427-4 that Article 5 status determinations, while usually applicable in international armed conflicts, have been used by the Department of Defense and are used by the Department of Defense in additional situations. [00:24:22] Speaker 05: And they list a number of situations and specifically list Guantanamo Bay. [00:24:27] Speaker 05: And so you have, and this July 2023 law of war manual post-states [00:24:32] Speaker 05: the Secretary of the Army's memo. [00:24:33] Speaker 05: And so you sort of have these parallel tracks where you have one government agent issuing this unilateral memo in January 2021 saying very suddenly and contrary to all previous briefing by the government and court statements that now AR 190-8 does not apply to non-international armed conflicts where their DOD law of war manual says the opposite and their previous detention memorandums have even argued the opposite. [00:25:01] Speaker 03: So your argument is that the applicability of AR 190-8 to Guantanamo means that [00:25:19] Speaker 03: It doesn't matter whether there's a status determination that's in contradistinction to enemy prisoner of war, because as a policy matter, the government has chosen to treat a UEB, unprivileged enemy belligerent, as if he were an enemy prisoner of war. [00:25:42] Speaker 03: Well, that is part of it, Your Honor. [00:25:45] Speaker 03: That is, you have to prevail on that to prevail in your case. [00:25:47] Speaker 05: No, we believe that the plain language of AR 190-8 is not applicable only to international armed conflict, and that the category of other detainee is specifically included there to catch any other determinations, right? [00:26:03] Speaker 05: And that's in keeping with the spirit of the Geneva Convention. [00:26:06] Speaker 05: So the government can name Mr. Al-Baluchi an enemy [00:26:08] Speaker 05: patent, they can name him an AUEB, they can name him something else. [00:26:11] Speaker 05: We know that that designation has changed over time as well as the government's legal position on these detainees has changed over time. [00:26:19] Speaker 05: But the fact of the matter is they cannot write him or other detainees out of the applicability of AR 190-8. [00:26:26] Speaker 05: This court should not allow the government to use Article 5 status determinations when convenient to them to justify the holding of these detainees at Guantanamo Bay indefinitely [00:26:38] Speaker 05: but then claim that it doesn't apply when it is inconvenient to them, when they then find a right to which they are entitled under AR1-8. [00:26:46] Speaker 07: So putting aside the, it seems like your strong argument in your view is the government's past positions, and I appreciate that. [00:26:54] Speaker 07: If we set that aside, just based on the text of 198, is there anything you would point to as showing that it's actually a departure from this distinction between non-international and international armed [00:27:08] Speaker 05: Certainly, Your Honor. [00:27:10] Speaker 05: The AR190-8 in its front matter states that it applies to armed conflicts and all military operations other than war. [00:27:21] Speaker 07: Which doesn't exactly speak to international versus non-international. [00:27:24] Speaker 07: It could be speaking to military operations short of war. [00:27:28] Speaker 05: Yes, but it would lead to a legal absurdity and it would be not in keeping with the [00:27:32] Speaker 05: frankly, if the regulation that governs all detention operations by the United States applies only to international armed conflict and then only to military operations and perhaps what we call in international law, security situations that do not rise to the level of armed conflict. [00:27:52] Speaker 05: It really leaves a very, very large gap there that is not supported by the text of AR 190-8. [00:27:58] Speaker 05: And again, [00:27:59] Speaker 05: As Judd Collier pointed out, the government points to no specific language in the regulation that supports their reading that it has to be limited to international armed conflict. [00:28:07] Speaker 05: Because in fact, if you read the entirety of the regulation, it is written in very broad terms indeed and has been taken by the government because of that language to apply to all manner of armed conflicts and outside of armed conflict where the military is engaged. [00:28:29] Speaker 03: I did just want... As I read the government's position, it quite clearly says that an unprivileged enemy belligerent is not entitled to any of the distinct privileges of an enemy prisoner of war. [00:28:52] Speaker 05: Yes, and this is where we see the contrast between the government's use [00:28:57] Speaker 05: of article five status determinations derived from international armed conflict to be able to say, look, this is how we're using these status determinations in order to find some designation that is outside of a category that we've ever used before. [00:29:14] Speaker 05: But then they say, no one else, you can't use these article five status determinations to obtain rights to which you would normally be entitled. [00:29:26] Speaker 05: under AR 190-8, given that you fall into the catchall category of other detainees. [00:29:36] Speaker 07: Can I ask, the government relies on the president's 2002 determination. [00:29:43] Speaker 07: Can you just explain your response to why that's? [00:29:45] Speaker 05: Certainly, it's very briefly. [00:29:49] Speaker 05: The president himself is not the proper [00:29:53] Speaker 05: No one is impugning the authority of the President of the United States, obviously. [00:29:56] Speaker 05: But the Geneva Conventions are very specific on what constitutes a competent tribunal for the purpose of these status determinations. [00:30:04] Speaker 05: And it is not a determination by the President of the United States, which is inherently political. [00:30:09] Speaker 07: There might be other problems with it, but you're relying on the regulation. [00:30:13] Speaker 07: And the regulation refers to competent authority, not a competent tribunal. [00:30:18] Speaker 07: So I'm not sure that distinction is sufficient. [00:30:20] Speaker 05: But again, it's been the position of the government since Guantanamo Bay opened that principles of international armed conflict must inform the current conflict. [00:30:29] Speaker 05: And if we're going to import principles of international armed conflict, this is a pretty key place that they would be changing that principle in contravention of the actual purpose of that, which is to establish a competent tribunal that can assess the matter of status determination with some neutrality as opposed to the President of the United States, which [00:30:49] Speaker 05: you know, whoever he or she may be, is not considered an entirely neutral party. [00:30:54] Speaker 03: I'm reading the commentary to Article 5 saying that the task of establishing that a person is not entitled to prisoner of war status should rest with the detaining power. [00:31:11] Speaker 03: and that the procedural guarantees applicable to status determination proceedings are not regulated by international humanitarian law, but are a matter of domestic law or regulation. [00:31:25] Speaker 03: So I just don't see anything in the commentary [00:31:29] Speaker 03: or in the Geneva Convention itself, that suggests that a determination by an entity of the detaining power, that the detaining power has authorized to make it, is not competent authority for this purpose. [00:31:46] Speaker 05: Well, so there is language in the commentaries, and I can find the site, Your Honor, I apologize, I don't have it in front of me, about what a competent tribunal actually is. [00:31:55] Speaker 05: And I believe that we briefed it in our reply brief. [00:31:59] Speaker 05: But even aside from that, even if we were to accept that the president is a competent authority for making this determination, that means that he or she is a competent authority for making a determination that the person is an AUEB for the purpose of detention. [00:32:17] Speaker 05: Again, that still doesn't remove the AUEB or the enemy combatant from the protections of AR 190-8. [00:32:25] Speaker 05: which the government itself used to make the determination that that person should be held. [00:32:40] Speaker 04: If I may briefly address the memo of the Secretary of the Army. [00:32:50] Speaker 03: I'm happy to briefly give it to you. [00:32:53] Speaker 05: Yes, of course. [00:32:54] Speaker 05: So firstly, with regards specifically to Mr. Albaluchi, the district courts determined in the Katani case in March 2020 that really affirmed the longstanding position that AR 190-8 was applicable, was applicable domestic law to Guantanamo detainees. [00:33:11] Speaker 05: Mr. Albaluchi made his request under the appropriate provision of AR 190-8 [00:33:16] Speaker 05: in May, 2020. [00:33:18] Speaker 05: And the army memo is not issued until January, 2021, purporting to overturn a judicial finding that in fact, AR 190-8 was applicable domestic law. [00:33:31] Speaker 05: And so, you know, as a preliminary matter, we argue that it does not apply to Mr. Albaluchi at all. [00:33:38] Speaker 05: However, the district court reasoned that the army secretary as the executive agent of the regulation [00:33:45] Speaker 05: could therefore issue policy guidance for the regulation. [00:33:49] Speaker 05: It is true that the Army secretary is the executive agent for the regulation, but multiple DOD directives make clear that the executive agent does not have the authority to develop, coordinate and implement policy guidance for regulations. [00:34:04] Speaker 05: That power is reserved to the Undersecretary of Defense for policy. [00:34:08] Speaker 05: The officials specifically designated under the DOD Directive 5101, which is not included in the government statutory addendum, to oversee the executive agent's execution or administration of the law. [00:34:23] Speaker 05: And this is important. [00:34:24] Speaker 05: It's a really important point because detention policy cannot be dictated unilaterally by even the head of a military department, the head of a single military department. [00:34:34] Speaker 05: The, you know, Guantanamo is a joint task force detention operation. [00:34:38] Speaker 05: It's run on a naval base. [00:34:40] Speaker 05: The personnel, including the medical personnel, are from multiple services. [00:34:44] Speaker 05: And so the policy regarding detainees there and in any theater has to be coordinated properly through the USDP, particularly for a joint service regulation like AR 190-8 that was promulgated by the Secretaries of the Army, Navy, and Air Force. [00:35:00] Speaker 05: And again, where we find this to be a problem is you have this memo from the Secretary of the Army in January 2021. [00:35:07] Speaker 05: And then you have the DOD law of war manual, which is the authoritative statement of the DOD on the law of war in July 2023, saying specifically AR 190-8 is applicable at Guantanamo Bay. [00:35:19] Speaker 05: So this is why the coordination has to take place. [00:35:22] Speaker 05: And it did not take place. [00:35:24] Speaker 05: And so the Army memo [00:35:25] Speaker 05: should not be given any legal weight. [00:35:27] Speaker 03: All right. [00:35:27] Speaker 03: We'll give you a limited amount of time for rebuttal. [00:35:31] Speaker 03: And we'll hear now from Mr. Schultz. [00:35:50] Speaker 08: Thank you. [00:35:50] Speaker 08: May it please the court, Benjamin Schultz on behalf of the government. [00:35:55] Speaker 08: This court can resolve the case on appellate jurisdiction for the simple reason that Mr. Albaluchi does not satisfy the irreparable injury test. [00:36:04] Speaker 08: And more specifically, he can't show that convening a mixed medical commission would remedy some sort of irreparable injury that requires immediate review. [00:36:14] Speaker 08: Put simply, that is because, as both Geneva Conventions made clear, [00:36:18] Speaker 08: And as the DOD instructions that find the Army and outrank the Army regulation that he relies on, if an individual is facing a judicial prosecution, as Mr. Albulucci is before the military commissions, then any recommendation of the mixed medical commission, including one that would otherwise require repatriation, would not be able to be implemented until at least the completion of those judicial prosecutions. [00:36:45] Speaker 03: be implemented. [00:36:46] Speaker 03: The government could exercise a prerogative to wait, but it doesn't have to. [00:36:54] Speaker 08: Your Honor, you're right that the government would have the option at its discretion, just like it has the option now, even without convening the mixed medical commission, to do something other than [00:37:04] Speaker 08: maintain the prosecution against Mr. Albaluchi? [00:37:07] Speaker 03: Well, petitioner makes a persuasive argument that the mixed military commission's findings would inform the disposition of his case, could provide the impetus for Mr. Albaluchi's eventual transfer. [00:37:23] Speaker 03: Assuming that he, for purposes of jurisdiction, that he's entitled to the mixed military commission, isn't it fair to think that denying the relief he seeks does cause him irreparable harm? [00:37:38] Speaker 08: Well, Your Honor, in order to reach that conclusion, Your Honor, we would essentially have to be saying that the irreparable harm that needs remedying, that he needs immediate review now to get, is essentially some sort of advisory position. [00:37:50] Speaker 08: from this mixed medical commission giving their medical opinions that would not bind the government in any way. [00:37:56] Speaker 08: Now if the court wants to say that this advisory commission from these three doctors saying whatever they think and mostly it would be just saying about whether or not he's sick enough to get repatriation. [00:38:06] Speaker 08: I'm not really sure where she gets the additional stuff about additional treatment because that's not in the army regulation and that's not in the Geneva Convention itself. [00:38:16] Speaker 08: Even putting that aside, if this court wants to say that that advisory opinion is remedying some irreparable harm, I think that's a difficult position. [00:38:24] Speaker 08: But that would have to be the basis. [00:38:26] Speaker 03: Right. [00:38:26] Speaker 03: It's meant as an independent medical judgment about the condition. [00:38:32] Speaker 08: Your Honor, given that the test here is whether or not the district order has the practical effect of an injunction, it seems odd to think that something has the practical effect of an injunction. [00:38:43] Speaker 08: when the only effect it has is giving some sort of advisory recommendation that nobody is bound to follow. [00:38:48] Speaker 08: So if the court wants to say that as a matter of its case law, that meets the practical effects test, and it really is an injunction, that would be something the court could say. [00:38:57] Speaker 08: We think that's wrong, and that's not what this [00:39:00] Speaker 07: court's case law seems to think in it. [00:39:01] Speaker 07: Is that the right way to think about what the injunction would be, or is it the injunction would be to convene the commission? [00:39:07] Speaker 08: The injunction, I mean, again, we have to put ourselves in the world where he's disclaimed seeking an injunction because he has to fit himself into the universe where what he's seeking is habeas. [00:39:18] Speaker 08: But we're in this universe where somehow the district court enters an order that under this court's case law counts as [00:39:25] Speaker 08: a habeas writ, and that is in some way requiring the government to convene a mixed medical commission. [00:39:31] Speaker 08: But that is all that the order would be requiring. [00:39:33] Speaker 08: It wouldn't be requiring the government to follow any of the recommendations of the mixed medical commission, except to the extent that if the mixed medical commission recommends repatriation, that I suppose would become binding at the conclusion of military commission proceedings, unless he's convicted, in which case it would then become binding at the conclusion of the sentence, which given that he faces a potential capital sentence, it's possible. [00:39:55] Speaker 08: that the mixed medical commission's recommendation would never be implemented. [00:40:00] Speaker 08: Or you could also end up with a life sentence, in which case the mixed medical commission's recommendations would never be implemented. [00:40:06] Speaker 08: So I'd be happy to spend more time on jurisdiction. [00:40:09] Speaker 08: Otherwise, I can briefly turn to the merits. [00:40:12] Speaker 08: And I think here there's a lot of different grounds that the court can rule on. [00:40:16] Speaker 08: It can do it based on the straightforward argument that AR 190-8 [00:40:21] Speaker 08: can't be inconsistent with the Geneva Conventions. [00:40:24] Speaker 08: And it's clear that in non-international armed conflicts, the only part of the third Geneva Convention that would apply would be Article 3, and it would not be the parts about the mixed medical commission. [00:40:35] Speaker 08: Or I think another basis that the court could go on would be the fact that in order to prevail, [00:40:41] Speaker 08: he has to show that he is an other detainee within the meaning of Army regulation 190-8. [00:40:47] Speaker 08: And it's very clear that he is not, because to be an other detainee under 190-8, even if he otherwise would have an argument that maybe he's a prisoner of war, which he doesn't have, that provisional status would only apply until there is a determination by a competent authority. [00:41:07] Speaker 08: And as the court pointed out in [00:41:09] Speaker 08: In the questioning of my opponent, there have been competent authorities that had determined that he is not entitled to prisoner of war status. [00:41:16] Speaker 08: And that would include the Combatant Status Review Tribunal. [00:41:19] Speaker 08: And that would also include the president. [00:41:21] Speaker 08: And either of those would be sufficient. [00:41:22] Speaker 08: Certainly, both of those are sufficient. [00:41:24] Speaker 08: So again, I'd be happy to address that or any of the other issues in the case. [00:41:28] Speaker 08: I'm also happy to address the Army Secretary's memorandum if the court wants to talk about it, although I don't. [00:41:34] Speaker 07: The other detainee definition is a little bit odd. [00:41:36] Speaker 07: OK. [00:41:37] Speaker 07: So as you're treated as. [00:41:38] Speaker 07: in EPW until a legal status is ascertained by competent authority. [00:41:43] Speaker 07: Correct. [00:41:44] Speaker 07: Even if the president's determinations otherwise [00:41:47] Speaker 07: would apply. [00:41:48] Speaker 07: Does it assign him a status? [00:41:52] Speaker 07: All it says is not a prisoner of war. [00:41:54] Speaker 07: It's not a status determination. [00:41:57] Speaker 07: I don't understand it. [00:41:57] Speaker 08: Well, respectfully, I think, at a minimum, the status determination would be from the Compatent Status Review Tribunal, which determined that he was an unprivileged enemy. [00:42:07] Speaker 08: I believe they use the older term, enemy combatant, which the DOD instructions say is equivalent. [00:42:12] Speaker 08: That is what the DOD instructions say. [00:42:14] Speaker 08: I think we've cited those in our brief. [00:42:16] Speaker 08: that the two terms are interchangeable. [00:42:18] Speaker 08: So that is his status. [00:42:19] Speaker 08: And that is why he is not someone who could ever qualify for prisoner of war status. [00:42:24] Speaker 07: I read you to have another argument that essentially, at least the bottom line was, because this is in connection with a non-international armed conflict, 198, it's basically irrelevant. [00:42:35] Speaker 07: You're right. [00:42:36] Speaker 08: That's another way that Your Honor could get there, that the 190-8 can't supersede the Geneva Conventions. [00:42:42] Speaker 08: And it's polluted that the only thing in the Geneva, the third Geneva Convention that applies a non-international armed conflict is Article III. [00:42:50] Speaker 08: The mixed medical commission is not contained in Article III, and therefore it doesn't apply to him. [00:42:54] Speaker 07: Well, Article 3 is a floor, right? [00:42:58] Speaker 07: The United States certainly would have authority to go beyond it. [00:43:02] Speaker 07: I'm not sure if it went beyond it, that would be a conflict or discrepancy. [00:43:05] Speaker 08: As a discretionary matter, I suppose it would be possible. [00:43:08] Speaker 08: But in order for Mr. Abolucci to prevail, he has to show that it is acquired under domestic law that he be able to convene a mixed medical commission. [00:43:15] Speaker 03: And there are places where the United States has overtly said, we are going beyond that floor. [00:43:21] Speaker 08: The law of war manual lists two specific examples. [00:43:24] Speaker 08: One is the fact that Guantanamo detainees have habeas rights. [00:43:26] Speaker 08: And the other is it gives a very narrow example during the Vietnam War of certain privileges accorded to guerrilla groups that were not engaged in terrorism. [00:43:34] Speaker 08: So your honor is right that it is possible to go beyond that. [00:43:38] Speaker 08: But whether the government in its discretion chooses to go beyond that is not sufficient for Mr. Abaluchi to prevail. [00:43:43] Speaker 08: He has to show. [00:43:44] Speaker 08: that it's required under domestic law that the government convene the mixed medical commission. [00:43:48] Speaker 08: And he can't show that. [00:43:49] Speaker 07: That portion of the law of war manual references some administrative process at Guantanamo Bay. [00:43:55] Speaker 07: Can you explain? [00:43:57] Speaker 07: I'm not quite sure which part you're referring to. [00:43:59] Speaker 07: I think the part that we petitioners citing about it's in footnote 544 maybe. [00:44:07] Speaker 07: Sorry, I don't have the full manual. [00:44:09] Speaker 08: It's pretty heavy. [00:44:10] Speaker 08: No, I'm certain you don't. [00:44:12] Speaker 08: But I think the clearest statement is if you go to 4.19.3.1, it says unprivileged belligerents are not entitled to the privileges of POW status, prisoner of war status. [00:44:25] Speaker 08: And we think that is about as clear as you can get. [00:44:27] Speaker 03: Can you say it again? [00:44:28] Speaker 08: Yeah. [00:44:28] Speaker 08: And we cite this on pages 31 to 32 of our brief. [00:44:32] Speaker 08: Law of War manual says at 4.19.3.1. [00:44:37] Speaker 08: Unprivileged belligerence are not entitled to the privileges of prisoner of war status. [00:44:41] Speaker 08: In the very next section, 4.19.3.2, it says, during international armed conflict, in cases of doubt as to whether a person held as an unprivileged belligerent is, in fact, a POW or entitled to POW treatment, that person should enjoy POW protections until their status is assessed by his competent tribunal. [00:45:00] Speaker 08: So it's telling you two things. [00:45:01] Speaker 08: It's telling you, one, if you're an unprivileged belligerent, you don't get any of the things that you would get from either being a POW or being treated as a POW. [00:45:09] Speaker 08: And two, it's saying in international armed conflict, which this is not, you do get some sort of provisional status until you have a competent tribunal determining that you're not entitled to it. [00:45:18] Speaker 03: And it accords with your view that the 190-8 other [00:45:27] Speaker 03: You know, the other detainees category tracks that in the sense that unless, until you've been, it's been determined whether you're an enemy prisoner of war or retained personnel or civilian internee, you're treated as if you're a prisoner of war. [00:45:45] Speaker 03: But once it's been determined that you're something that is in contradistinction, [00:45:50] Speaker 03: to a prisoner of war, then you no longer get that residual treatment. [00:45:53] Speaker 08: I mean, that is one of our arguments. [00:45:54] Speaker 08: Absolutely. [00:45:55] Speaker 08: Again, we think, as I explained to Judge Garcia, I think another way you could get there is you don't even need to get to 190-8 at all, because this is a non-international armed conflict. [00:46:03] Speaker 08: But if you want to kind of assume that 190-8 might apply anyway, then under the clear terms of that other detainee language, whatever provisional status you might have gotten initially, you don't get it once you have a status determination. [00:46:15] Speaker 07: And we have that here. [00:46:18] Speaker 07: broader argument that 190-8 just doesn't apply to non-international armed conflict. [00:46:24] Speaker 07: I think petitioners suggest that that means there's no regulation out there that governs Article III detainees from non-international armed conflicts. [00:46:35] Speaker 07: Could imagine a few responses, but I'd like to hear yours. [00:46:38] Speaker 08: Sure. [00:46:38] Speaker 08: Well, one thing is that within the Department of Defense, there are various sources of law. [00:46:43] Speaker 08: Army regulations are one potential source of law. [00:46:45] Speaker 08: DOD instructions are another source of law. [00:46:47] Speaker 08: There are DOD instructions that govern aspects of detainee operations at Guantanamo Bay. [00:46:55] Speaker 07: Including the DOD directive that's in the briefs here. [00:46:58] Speaker 07: Correct. [00:46:59] Speaker 07: We've established all encompassing standards. [00:47:02] Speaker 08: That's exactly right. [00:47:03] Speaker 08: There's a DOD directive that we cite about treatment of detainees. [00:47:06] Speaker 07: There's also DOD directives about health care and we've cited those in our brief and they reaffirmed that the individuals at Guantanamo are entitled to health care and the government acknowledges that so I don't think it's the argument there's not you're not saying there's anything affirmative in 198 that we could look at and say that says it doesn't apply in non-international armed conflict it's more of the baseline is [00:47:30] Speaker 07: non-international armed conflict detainees do not get access to these kinds of rights. [00:47:37] Speaker 07: You'd expect to see something clearer in 198 if it was departing from that. [00:47:41] Speaker 08: So I think the argument is 190-8 at the very beginning says that anything about 190-8 that's inconsistent with the Geneva Conventions, the Geneva Conventions take precedence. [00:47:51] Speaker 08: And because [00:47:52] Speaker 08: the Geneva Conventions are clear that in non-international armed conflicts, the only part of the third Geneva Convention that is applicable is Article III, and not any of the other stuff. [00:48:03] Speaker 08: That that's the part of 190-8 that you would look to, to know that we're not talking about non-international armed conflicts. [00:48:09] Speaker 03: What is really in conflict? [00:48:10] Speaker 03: I mean, if the United States wanted to apply that to non-international armed detainees in non-international armed conflicts, there would be nothing in the Geneva Convention. [00:48:22] Speaker 08: Well, respectfully, it's not just conflict. [00:48:25] Speaker 08: If you look at the language in 1-1, it's broader than that. [00:48:30] Speaker 08: It says in the event of conflicts or discrepancies. [00:48:33] Speaker 08: So I think the preface to 190-8 is really telling you we're not just trying to say don't conflict with the Geneva Convention. [00:48:40] Speaker 08: We're trying to really implement it here. [00:48:41] Speaker 08: And you've got to read what we're doing here in light of that. [00:48:50] Speaker 08: Be happy to address any remaining questions that the court has. [00:48:53] Speaker 08: Otherwise, we would ask the court to affirm, or rather, dismiss for lack of jurisdiction and otherwise affirm. [00:49:12] Speaker 02: Yeah, I'm just seeing if there's anything else to ask. [00:49:17] Speaker 03: All right. [00:49:19] Speaker 03: Thank you. [00:49:28] Speaker 03: So I believe that Ms. [00:49:32] Speaker 03: Pradhan used all her time, but we'll give you a few minutes for rebuttal if you'd like it. [00:49:38] Speaker 03: You don't have to take it. [00:49:39] Speaker 03: I would, Your Honor. [00:49:40] Speaker 05: I do just want to note that I did reserve one minute, but that's neither here nor there. [00:49:46] Speaker 05: So I don't want to let the government's misstatement of the DOD law afford [00:49:50] Speaker 05: you'll go by, because this is extraordinarily important, because it provides the bookend for the government's continuing employment of AR 190-8 when it is convenient to them. [00:50:00] Speaker 05: And so I'm not sure what my learned colleague was looking at, but at Section 427.4 of the DOD Law for Manual, it states, it does acknowledge that Article 5 of the Third Geneva Convention addresses entitlement to POW status, and then it says, [00:50:17] Speaker 05: DOD practice has been to use Article 5 tribunals or similar administrative tribunals to address these issues. [00:50:24] Speaker 05: For example, DOD used administrative tribunals to address a variety of issues during detention operations in Vietnam, Panama, the Persian Gulf in 1991, Iraq in 2003, Afghanistan, and Guantanamo. [00:50:40] Speaker 05: which we all acknowledge is a non-international armed conflict. [00:50:43] Speaker 05: This is again in keeping with the government's long-standing position. [00:50:48] Speaker 03: Can you say again what you're reading from? [00:50:50] Speaker 05: Certainly, Your Honor. [00:50:51] Speaker 05: It's the DOD law form manual, which is called by both the government and the Secretary of the Army as the DOD authoritative statement on the law form. [00:51:01] Speaker 05: And it is section 4.27.4 entitled Tribunals to Assess Other Detainee Issues [00:51:10] Speaker 05: and Footnote 538. [00:51:11] Speaker 05: Not in your supplement, not in your addendum. [00:51:16] Speaker 05: It's cited in our reply brief, Your Honor, and it does say that at Footnote 538, it cites, interestingly, it doesn't say army regulation 190-8. [00:51:27] Speaker 05: It says 1997 multi-service detention regulation, which is perhaps a more accurate description of what the regulation actually is. [00:51:37] Speaker 05: And this is not [00:51:39] Speaker 05: This is an extremely authoritative statement. [00:51:41] Speaker 05: The Secretary of the Army cites the law form manual as higher level guidance for interpretation of application of AR 190-8, even in the memorandum where he strips detainees of the protections of AR 190-8. [00:51:55] Speaker 05: The government acknowledges the supremacy of the DOD law form manual's statements on how the United States implements the Geneva Conventions at Guantanamo, specifically citing Guantanamo. [00:52:08] Speaker 07: So I'm looking at this provision of the law of war manual. [00:52:10] Speaker 07: And it says, after saying, [00:52:13] Speaker 07: Article 5 addresses entitlement to POW status. [00:52:16] Speaker 07: It says administrative process may be appropriate to address status questions besides entitlement to POW status. [00:52:25] Speaker 07: And I suppose the government might say, this is just explaining other ways that we have used similar-looking administrative processes, but we're not agreeing that those were determining POW status, which is what you would need to be the case. [00:52:39] Speaker 05: Well, yes and no. [00:52:41] Speaker 05: And the fact that they are citing AR 190-8, which they claim implements only international armed conflict concepts for this proposition, incorporates by reference that regulation to the following sentence where they say, for example, DOD uses such administrative tribunals to address detainee issues in [00:53:07] Speaker 05: For example, Guantanamo Bay. [00:53:09] Speaker 05: So this is the current position of the Department of Defense, you know, whereas government agents [00:53:17] Speaker 05: are here arguing because Mr. Al-Qahtani and Mr. Al-Baluchi asked for their rights under the same regulation are now saying, well, no, no, no, this regulation is not applicable in non-international armed conflict, citing absolutely no language from the regulation that says that. [00:53:34] Speaker 05: Now, with regards to status, I do just want to note briefly that while we acknowledge that the government's view of Mr. Al-Baluchi [00:53:42] Speaker 05: is that he is an AUEB. [00:53:45] Speaker 05: Our position is actually that he does not currently have a valid status determination, and this is in our briefs as well, that the CSERT determined that he was an AUEB, and we appealed that determination, and the government dropped that appeal. [00:53:59] Speaker 05: So there's no final status determination for Mr. Al-Baluchi, which differs again from the Katani case, where there was a final status determination. [00:54:07] Speaker 05: He accepted the designation of enemy [00:54:10] Speaker 06: I don't understand how the government dropping an appeal, the determination, you were the one challenging the determination. [00:54:25] Speaker 06: Yes, Your Honor. [00:54:26] Speaker 06: So I don't understand how you're saying that that determination is not valid because the government dropped the appeal. [00:54:33] Speaker 06: You were the one challenging the determination. [00:54:36] Speaker 05: Yes, Your Honor, and it is so [00:54:38] Speaker 05: It goes to the fact that our position is that Mr. Al-Baluchi still does not have a valid status determination. [00:54:44] Speaker 05: And so it's simply one more factor on the scales of first, even if he did have a determination of AUEB or enemy combatant, as I said earlier, that would still place him in the other detainee category. [00:55:00] Speaker 05: AR 190-8, because as this court said in AMR 2, that designation does not render AR 190-8 inapplicable to these particular detainees. [00:55:12] Speaker 06: I guess I'm just confused about your position. [00:55:15] Speaker 06: I mean, if you're saying that his determination by the combatant status review tribunal is invalid, then wouldn't that be grounds for his release? [00:55:30] Speaker 05: he is still being detained under the AUMF or, you know, various detention authorities, but it's so, yes, certainly we could argue that, but for the purpose of this litigation, what we're saying is first, if he is an AUEB, as the government has stated, he falls in the other detainee category as judge call your reason below. [00:55:51] Speaker 05: But the fact that we have challenged that status and the fact that we don't believe that that status determination is final, [00:55:58] Speaker 05: places him even more into the other detainee category through which he should benefit from prisoner of war protections under AR 190-8. [00:56:07] Speaker 03: Can I ask, and this goes to the question of appellate jurisdiction, in determining whether your clients claim for entitlement to a mixed military commission, whether it's separate from the merits of the habeas claims in the underlying action, what are the arguments in the state habeas petition? [00:56:33] Speaker 05: the his habeas proceedings have been stayed since 2019 pending the outcome of uh military commission proceedings and so the only reason that the habeas that the state would be lifted is for issues that sounded habeas that cannot be addressed by the military commission or will not be addressed by the military commissions and so Judge Friedman and other district judges have found that the requests for mixed medical commissions do sound in habeas and so that they so they do have jurisdiction over [00:57:04] Speaker 05: those issues. [00:57:05] Speaker 03: So I guess what I'm asking is one of the questions, if we're looking at collateral order review, which is distinct from your argument under Curson, this has a practical effect of an injunction. [00:57:18] Speaker 03: But under the Cohen versus beneficial loan, the notion that you're entitled to interlocutory appeal [00:57:25] Speaker 03: because this is a collateral order, we would have to determine that the claim of entitlement to a mixed military commission is separate from the merits. [00:57:33] Speaker 03: And it sounds like it's not. [00:57:34] Speaker 03: It sounds like it's part of the underlying habeas. [00:57:36] Speaker 03: No, Your Honor. [00:57:37] Speaker 05: And so under the collateral order doctrine, we believe that we fulfill all three conditions. [00:57:44] Speaker 05: First, this conclusively denied Mr. Albaluchi's right to a mixed medical commission. [00:57:48] Speaker 05: Second, it resolved his ability or seemed purported to resolve his ability to access [00:57:54] Speaker 05: the mixed medical commission for evaluation, which is entirely separate from his habeas challenge. [00:58:01] Speaker 05: Now the government. [00:58:02] Speaker 05: Although I thought that it's part of the habeas challenge. [00:58:04] Speaker 05: Well, it sounds in habeas. [00:58:06] Speaker 05: And this is part one of the ways in which Guantanamo is a little bit of a different animal because of the conditions of confinement litigation falling under habeas for this purpose. [00:58:15] Speaker 05: But it is not, the merits of habeas are not coextensive with the merits [00:58:22] Speaker 05: of determining whether or not he has a right to a mixed medical commission. [00:58:25] Speaker 05: Now, that right has been cut off by the district court for now, and his habeas petition, meanwhile, remains pending. [00:58:33] Speaker 05: Now, the problem is, and this is what makes it unreviewable, is that we're looking at, it is no exaggeration to say years, if not decades, before that habeas petition can be returned to. [00:58:45] Speaker 05: You know, I'll give you some numbers. [00:58:47] Speaker 05: We are scheduled for pretrial hearings at the Military Commission through the end of 2025. [00:58:52] Speaker 05: All parties agree that a trial date once once set if set will take a minimum of a year and a half. [00:58:58] Speaker 05: So that is an absolute minimum of two and a half years before there is any verdict in the Military Commission proceedings. [00:59:05] Speaker 05: If it's a capital trial. [00:59:06] Speaker 05: I was only asking about the separate from certain merits. [00:59:09] Speaker 05: Certainly. [00:59:10] Speaker 05: So that's our that's our position on the collateral order doctrine. [00:59:14] Speaker 05: Very last point, very briefly, that I would just make is with regards to the government's position on whether this could be released. [00:59:22] Speaker 05: And I believe my learned opponent said that I'm not sure where she's getting the other possible outcomes of the mixed medical commission from. [00:59:30] Speaker 05: And that's from practice. [00:59:32] Speaker 05: The mixed medical commissions that have been convened, both post World War II and the ones that are actually being proposed right now with the support of the United States in Ukraine, [00:59:41] Speaker 05: are clear that the physicians of the mixed medical commission can find that certain treatment or certain conditions may be necessary. [00:59:51] Speaker 05: And I want to just bring this back quickly to what the real point of this is for Mr. Albaluchi. [00:59:57] Speaker 05: At the heart of this is his need [01:00:00] Speaker 05: for health care, for his need for a medical evaluation. [01:00:03] Speaker 05: And I think the independent expert reports make that very, very clear. [01:00:08] Speaker 05: That's what we're talking about here. [01:00:10] Speaker 05: He has not been able to have an evaluation. [01:00:13] Speaker 05: All right. [01:00:15] Speaker 05: You can wrap up. [01:00:16] Speaker 05: All right. [01:00:17] Speaker 05: All I want to say on that, Your Honors, is just that really the agony of having this right revoked at a time when he thought it would be possible [01:00:28] Speaker 05: to compel the government to at least order the evaluation cannot be overstated. [01:00:35] Speaker 03: All right. [01:00:35] Speaker 03: Thank you. [01:00:35] Speaker 03: The case is submitted.