Ammar Al -Baluchi, Also Known As Ali Abdul Aziz Ali v. Pete Hegseth, Secretary of Defense

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 2024 Decided June 17, 2025
No. 23-5251
AMMAR AL -B ALUCHI, ALSO KNOWN AS ALI ABDUL AZIZ ALI,
APPELLANT
v.
P ETE HEGSETH, S ECRETARY OF DEFENSE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-02083)
Alka Pradhan argued the cause and filed the briefs for
appellant. With her on the briefs was James G. Connell, III.
Tara J. Plochocki was on the brief for amicus curiae
September 11th Families for Peaceful Tomorrows in support of
appellant.
Benjamin M. Shultz, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, and Sharon Swingle, Attorney. Michael Shih,
Attorney, entered an appearance.

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Before: P ILLARD , W ILKINS , and GARCIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARCIA.
GARCIA, Circuit Judge: Ammar al-Baluchi has been
detained at the U.S. naval base in Guantánamo Bay, Cuba, for
nearly twenty years. He asked the district court overseeing his
habeas corpus proceedings to compel the government to
convene a Mixed Medical Commission to assess his eligibility
for repatriation. After the district court denied relief,
al-Baluchi immediately appealed. Because al-Baluchi has not
shown that we have jurisdiction to review the district court’s
nonfinal order, we dismiss the appeal.
I
A
In setting out rules for the treatment of prisoners of war,
the Third Geneva Convention provides that parties to a conflict
must generally “send back to their own country” any “seriously
wounded and seriously sick prisoners of war.” Geneva
Convention (III) Relative to the Treatment of Prisoners of War
art. 109, Aug. 12, 1949, 6 U.S.T. 3316, T.I.A.S. No. 3364. To
facilitate this process, the Convention calls for the appointment
of “Mixed Medical Commissions” to assess whether a prisoner
of war is eligible for repatriation. Id. art. 112.
Domestic law incorporates these protections. In 1997, the
Secretary of the Army promulgated Army Regulation 190-8
(AR 190-8), which “implements international law” relating to
detainees in the custody of the U.S. Armed Forces. AR 190-8
§ 1-1(b). One of the “principal treaties” that the regulation
implements is the Third Geneva Convention. Id. § 1-1(b)(3).
The provisions of the Convention “take precedence” to the

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extent they conflict with or deviate from the regulation.
Id. § 1-1(b)(4).
Consistent with the Convention, AR 190-8 provides that
“[s]ick and wounded prisoners” will be evaluated for
“repatriation or accommodation in a neutral country during
hostilities.” Id. § 3-12(a). A “Mixed Medical Commission,”
the regulation says, will “[d]etermine those cases eligible for
repatriation or hospitalization in a neutral country.” Id.
§ 3-12(c)(3).
B
Al-Baluchi is a Pakistani national who has been detained
at the U.S. naval base in Guantánamo Bay since 2006. The
United States maintains that al-Baluchi supported and
facilitated the September 11, 2001, attacks as a senior member
of al-Qaeda.
In 2008, al-Baluchi petitioned for a writ of habeas corpus
in federal district court. See 28 U.S.C. § 2241. Three years
later, with his habeas petition still pending, the government
convened a military commission to try al-Baluchi for terrorism,
murder in violation of the law of war, and other offenses. The
district court then granted the government’s request to stay
al-Baluchi’s habeas case until his commission proceedings
conclude. Al-Baluchi’s trial has yet to occur, and his habeas
petition remains stayed.
In 2022, al-Baluchi moved to compel the government to
convene a Mixed Medical Commission under AR 190-8.
Al-Baluchi claims that he suffered years of torture at the hands
of the CIA before his transfer to the Guantánamo base. He
asserts that this extreme mistreatment, combined with his
lengthy detention at Guantánamo Bay, have caused him to
sustain brain injuries and other serious neurological issues that
qualify him for repatriation.

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After temporarily lifting the stay to consider al-Baluchi’s
motion, the district court denied his request. See Al-Baluchi v.
Austin, 691 F. Supp. 3d 133, 141, 145 (D.D.C. 2023). The
district court determined that a detainee captured during a
noninternational armed conflict, like al-Baluchi, is not entitled
to a Mixed Medical Commission examination under the Third
Geneva Convention or AR 190-8. Id. at 144–47. Al-Baluchi
immediately appealed the district court’s order.
II
Before considering the merits of al-Baluchi’s appeal, we
must first assess whether we have jurisdiction to do so. See
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998).
Courts of appeals generally have authority to review only “final
decisions” of district courts. 28 U.S.C. § 1291. This rule
prevents a party from taking an appeal until the district court
enters an order that “ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.” Catlin
v. United States, 324 U.S. 229, 233 (1945). As al-Baluchi
accepts, no such order has been entered in the litigation below.
Al-Baluchi argues instead that two exceptions to the
final-order rule apply. First, he claims that the district court’s
order had the “practical effect” of denying injunctive relief,
threatens “serious, perhaps irreparable, consequence” if not
immediately reviewed, and is thus immediately appealable
under 28 U.S.C. § 1292(a)(1). See Carson v. Am. Brands, Inc.,
450 U.S. 79, 83–84 (1981). Second, he claims that the order
resolves an important issue separate from the merits, is
effectively unreviewable on appeal from a final judgment, and
thus must be treated as final under the collateral-order doctrine.
See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546
(1949). Both exceptions demand a showing of serious or
irreparable harm requiring immediate review. See I.A.M. Nat’l
Pension Fund Benefit Plan A v. Cooper Indus., Inc., 789 F.2d

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21, 25 n.5 (D.C. Cir. 1986) (explaining that “[t]he requisite
showing of irreparable harm” under the collateral-order
doctrine “is similar to that required in cases involving
interlocutory injunctive orders”).1
Al-Baluchi offers only one theory of serious or irreparable
harm: He claims that meaningful medical treatment is
unavailable to him at Guantánamo Bay and that a favorable
determination by a Mixed Medical Commission would compel
his prompt repatriation to a jurisdiction capable of providing
proper medical care. An interlocutory appeal, on his view,
could be the difference between repatriation now and
repatriation after his military-commission proceedings
conclude.
For that assertion, al-Baluchi relies on the commentary to
Article 112 of the Third Geneva Convention, the provision
describing the role and authority of Mixed Medical
Commissions. Article 112 itself states, in relevant part, that
“Mixed Medical Commissions shall be appointed to examine
sick and wounded prisoners of war, and to make all appropriate
decisions regarding them.” The commentary then explains that
the decisions of Mixed Medical Commissions “are final” and
that, as a general matter, the “Detaining Power must carry
those decisions out within three months.” Int’l Comm. of the
1 Al-Baluchi also briefly argues that the district court’s order is
immediately appealable under 28 U.S.C. § 1292(a)(1) because it
denied injunctive relief “in terms.” Appellant’s Brief 20. We
disagree with the premise. The district court’s order did not “by its
terms” deny an injunction, because al-Baluchi never made a “specific
request” for an injunction. See Salazar ex rel. Salazar v. District of
Columbia, 671 F.3d 1258, 1261–62 (D.C. Cir. 2012). Just the
opposite: He explicitly stated below that his request for a Mixed
Medical Commission was “not a request for injunctive relief.”
Petitioner’s Reply to Respondents’ Mem. Opp. Mot. to Lift Stay and
Compel Examination at 4, Dkt. No. 236.

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Red Cross, Commentary on the Third Geneva Convention
§§ 4364–65 (2020) (2020 Commentary). Though not binding,
the commentary is “relevant” in interpreting the Convention’s
provisions. Hamdan v. Rumsfeld, 548 U.S. 557, 619 n.48
(2006).
The government counters that, even if a Mixed Medical
Commission were to find al-Baluchi eligible for repatriation,
nothing would require the government to repatriate him
immediately. Under both the Convention and AR 190-8, the
government would still retain the discretion to detain
al-Baluchi while his military-commission proceedings are
ongoing.
We agree with the government. Article 115, paragraph 2
of the Third Geneva Convention, which AR 190-8
incorporates, makes the government’s discretion clear.
“Prisoners of war,” it says, “detained in connection with a
judicial prosecution or conviction and who are designated for
repatriation or accommodation in a neutral country, may
benefit by such measures before the end of the proceedings or
the completion of the punishment, if the Detaining Power
consents.” As a result, even if al-Baluchi were “designated for
repatriation” by a Mixed Medical Commission, he may
“benefit” from that determination “before the end of the
proceedings or the completion of the punishment” only “if the
Detaining Power consents.”2
2 The government disputes that al-Baluchi qualifies as a
“prisoner of war” under any relevant source of law. We assume that
he does so qualify only for purposes of determining our jurisdiction,
because al-Baluchi’s theory of the merits relies on the same
assumption. See Ctr. for Regul. Reasonableness v. EPA, 849 F.3d
453, 454 n.1 (D.C. Cir. 2017) (explaining that we “generally will
assume the merits as the plaintiff or petitioner pleads them” when
“determining jurisdiction”).

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The 1960 commentary to Article 115 confirms this view.
It says that “[i]t is for the Detaining Power to decide whether a
wounded or sick prisoner of war detained in connection with a
judicial prosecution or conviction shall be allowed to benefit
by repatriation or accommodation.” Int’l Comm. of the Red
Cross, Commentary: Geneva Convention (III) Relative to the
Treatment of Prisoners of War 536 (Jean S. Pictet ed., A.P. de
Henry trans., 1960); see also id. (envisioning that a “prisoner
of war whose state of health qualifies him for repatriation . . .
might not be repatriated . . . during the judicial proceedings”).
And the commentary expressly contemplates—consistent with
Article 115’s text—that this discretion overrides the detaining
power’s obligation to otherwise carry out repatriation
determinations made by a Mixed Medical Commission. When
a detaining country notifies the other side in the conflict that a
prisoner of war has been “kept back,” the commentary
explains, it should “indicate that action on the decision by the
Mixed Medical Commission[] . . . has been postponed.” Id. at
537 n.1.
The 2020 commentary provides the same guidance. It
reiterates: “The repatriation or accommodation in a neutral
country of convicted and detained prisoners of war who are
wounded or sick is conditioned on the consent of the Detaining
Power. Accordingly, the Detaining Power may keep the
prisoners of war detained for the duration of the judicial
proceedings or until they have served their sentences.” 2020
Commentary ¶ 4402.
Al-Baluchi offers no rebuttal to these authorities in his
briefs. Indeed, in the district court, al-Baluchi seemed to accept
that Article 115, paragraph 2 applied, and that the government
could delay his repatriation until the end of his military-
commission proceedings despite a favorable Mixed Medical
Commission determination. See Petitioner’s Reply to
Respondents’ Mem. Opp. Mot. to Lift Stay and Compel

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Examination at 17 n.78, Dkt. No. 236 (“Art. 115(2) introduces
the sole element of discretion for the United States: if [a Mixed
Medical Commission] finds Petitioner eligible for medical
release, the ‘Detaining Power’ must consent to such release
while he faces judicial proceedings or punishment.”). At oral
argument, al-Baluchi appeared to dispute for the first time that
he is subject to a “judicial prosecution” within the meaning of
Article 115. See Oral Arg. Tr. 11–12. That contention came
too late, especially given the government’s clear reliance on
Article 115, paragraph 2 in its brief and al-Baluchi’s own
statements in the district court. See Ark Las Vegas Rest. Corp.
v. NLRB, 334 F.3d 99, 108 n.4 (D.C. Cir. 2003) (declining to
consider argument not raised until oral argument).
We do not address whether we would have appellate
jurisdiction under a different theory of irreparable injury.
Al-Baluchi does not argue, for instance, that a favorable
repatriation determination by a Mixed Medical Commission
could prompt the government to consent to his repatriation
even while his prosecution is pending. Nor does al-Baluchi
offer any other theory as to how immediate review (and the
ability to undergo examination before final judgment instead of
after) might accelerate his potential repatriation. And although
al-Baluchi suggested at oral argument that a Mixed Medical
Commission could also require adjustments to his medical
treatment at Guantánamo Bay, he has forfeited this theory by
failing to raise it in his briefs. See id. We therefore have no
occasion to reach any of these potential grounds for
jurisdiction. See Int’l Longshore & Warehouse Union v.
NLRB, 971 F.3d 356, 363 (D.C. Cir. 2020) (applying ordinary
rules of forfeiture to claims that we have jurisdiction).
As this case comes to us, the narrow, dispositive question
is whether a Mixed Medical Commission may compel the
government to repatriate al-Baluchi before the completion of

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his prosecution. Because the answer is no, al-Baluchi’s only
theory of appellate jurisdiction fails.
III
The appeal is dismissed for lack of jurisdiction.
So ordered.

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