Rafiq Sabir and Doctors Are Not Permitted to Treat Terrorists:

Doctors who volunteer to treat the wounds of terrorists, while under a terrorist organization's direction can be prosecuted under U.S. terrorism laws, according to U.S. District Judge Loretta A. Preska.^[1] Dr. Rafiq Abdus Sabir is accused of providing medical treatment to al-Qaida members, but he has claimed it is unconstitutional to prosecute a doctor for providing medical services.^[2] Sabir was arrested in 2005, accused with three others in a plot to assist terrorist organizations from 2003 to 2005.^[3] He has pleaded not guilty to conspiring to provide material support or resources to a terrorist organization and has remained jailed since his arrest.^[4]

According to Judge Preska, Sabir is not merely charged for being a doctor or for performing medical services, but instead he has “essentially … volunteered as a medic for the al-Qaida military, offering to make himself available specifically to attend to the wounds of injured fighters,'' she said.^[5] ''[As] much as a military force needs weapons, ammunition, trucks, food and shelter, it needs medical personnel to tend to its wounded.''^[6] Judge Preska asserted that ''any reasonable doctor'' would know from the plain language of U.S. law that pledging to provide medical support to a wounded terrorist under the control and direction of al-Qaida would be a form of outlawed ''expert advice or assistance.''^[7]

She also rejected arguments by Sabir's lawyer, Edward Wilford, that the law would subject doctors to prosecution for treating a terrorist randomly at a hospital, or members of a group like Doctors Without Borders.^[8] Because, in those cases, the doctor is not acting under the direction of a designated foreign terrorist organization, the judge said.^[9]

Sabir has been charged with providing material support to a terrorist organization.^[10] Under this statute it is a crime to knowingly provide, attempt to provide, or conspirer to provide material support or resources to a foreign terrorist organization. The penalty for this is a fine or imprisonment for not more than 15 years, or both, and, if the death of any person results, shall be imprisonment for any term of years or for life.^[11]

“Material support” is defined as any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.^[12]

Interestingly, "material support" explicitly exempts "medicine" from the list of items which constitute "material support or resources," andthe statute goes on to state that "expert advice or assistance" refers to “advice or assistance derived from scientific, technical, or other specialized knowledge.”^[13] This presents a problem for doctors who are tending to the wounded on the battlefield, and could now be unsure who they are permitted to treat. While Judge Preska asserts that Sabir has essentially become a medic for the al-Qaida military, it still remains unclear that providing medical attention is a form of outlawed "expert advice or assistance," given that it is okay to provide medicine. Furthermore if the United States were fighting a conventional war against another nation (as opposed to a terrorist organization) Sabir, as a medic, would be protected under Common Article II of the four Geneva Conventions.^[14]

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^[1] Larry Neumeister, Doctors can't treat terrorists: US judge, AP (via Sydney Morning Herald), January 31, 2007.
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Id.
^[8] Id.
^[9] Id.
^[10] 18 U.S.C. § 2339B (2005).
^[11] Id.
^[12] 18 U.S.C. § 2339A(b)(1)(2005).
^[13] 18 U.S.C. § 2339A(b)(3)(2005).
^[14] International armed conflict is governed by Common Article II to the four 1949 Geneva Conventions. See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed forces in the Field, Aug. 12, 1949, art. 2, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, art. 2, 6 6 U.S.T. 3114U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 2, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 2, 6 U.S.T. 3516, 75 U.N.T.S. 287.