- Associated Press - Monday, November 28, 2016

WASHINGTON (AP) - Two years after being brought to the U.S. to face charges in an attempted attack on American forces in Afghanistan, Irek Hamidullin is arguing he should never have been prosecuted at all.

A federal court appeal from Hamidullin, a former Russian army officer who later fought alongside Taliban-affiliated forces, raises anew the question of how the U.S. government should handle people captured overseas for acts of violence they commit against the American military. At issue is whether Hamidullin should be regarded as an ordinary criminal or, as he contends, a lawful combatant entitled to be treated as a prisoner of war and immune from the U.S. court system.

The question is an exceedingly rare one for the courts, even in a post-Sept. 11 legal landscape in which judges have tackled cases concerning indefinite detention, treatment of foreign detainees and the constitutionality of military tribunals. Lawyers in the case have cited only one other criminal prosecution in the last 15 years in which a court considered whether a Taliban fighter enjoyed combatant immunity, and the judge in that case ruled for the government.

“I would be very surprised if he could get any traction on this legal argument at all,” said Jens David Ohlin, a Cornell University law professor specializing in international law. But “that isn’t to say that it’s a simple issue,” he added.

The U.S. Court of Appeals for the 4th Circuit in Richmond, Virginia, is scheduled to hear arguments Dec. 9. A federal judge rejected Hamidullin’s position before he was convicted last year and sentenced him to life in prison.

Hamidullin, a former Russian military tank commander who the government says later fought with the Taliban-affiliated Haqqani network, was captured in 2009 after leading a band of insurgents in an attack on an Afghan border police compound, then trying to shoot down U.S. military helicopters that responded. He was brought to the U.S. in 2014 for trial on charges including providing material support to terrorism, attempting to destroy U.S. aircraft and conspiracy to use a weapon of mass destruction.

The U.S. and other nations have long recognized a distinction between acts committed by soldiers during war and violence done outside the bounds of an international conflict.

Yet the government and Hamidullin’s lawyers are at odds on what category Hamidullin falls into.

His attorneys say his acts were carried out in an armed conflict that began with the 2001 U.S. invasion of Afghanistan and were therefore both “lawful and commonplace.” Though the Taliban government was ousted from power, it has continued to fight against U.S. and Afghan forces, the lawyers note. Instead of being tried in a civilian court, which the Obama administration has repeatedly used to prosecute financiers and recruiters of terrorism, Hamidullin should have been held as a prisoner of war like other enemy soldiers, they contend.

“You know what this guy was accused of?” asked Jordan Paust, an international law expert at the University of Houston who was a defense witness in the case. “Things that soldiers do in war.”

Combatants granted POW status are historically exempt from civilian court prosecution and are typically detained by the military until the end of hostilities. They can theoretically face prosecution before a military tribunal, but the Justice Department has not alleged war crimes of the sort that a tribunal would hear. That means it’s unlikely Hamidullin would face further prosecution if the ruling went his way, according to his defense lawyers.

Prosecutors, though, cite a 2002 federal government declaration that fighters aligned with the Taliban did not qualify for lawful combatant status. No circumstances in the “ensuing years have undermined the reasonableness of the President’s determination,” they wrote in court filings.

The Justice Department says Hamidullin fought not with a recognized army but with a “rogue band of insurgents” that lacked a leadership hierarchy, distinctive uniform or insignia and respect for the laws and customs of war - criteria under the Geneva Convention for claiming lawful combatant status.

A similar legal issue emerged in the 2001 case of John Walker Lindh, an American captured in Afghanistan while fighting with the Taliban. A judge denied him lawful combatant status, but he pleaded guilty before the question could be decided by an appeals court.

From the Justice Department’s perspective, it is not a close call.

“War and armed conflict have doubtlessly yielded cases over the years where it was unclear on what side of that line a given fighter ought to fall,” prosecutors said. “This is not one of those cases.”

Not everyone’s so sure.

“More than any other criminal prosecution that we have seen since 9/11, this case really gets at some of the awkward legal problems that arise from applying ordinary criminal law on a battlefield,” said Stephen Vladeck, a national security law professor at the University of Texas.


Follow Eric Tucker on Twitter at https://www.twitter.com/etuckerAP

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