Attorneys argue man qualifies as a lawful combatant
By Alanna Durkin Richer
Associated Press
RICHMOND, Va. (AP) - The prosecution of a former Russian military officer accused of leading a Taliban attack on American forces is a radical departure from the U.S.'s long practice of treating fighters as enemy combatants instead of criminals, the man's attorney argued Friday.
At issue in Irek Hamidullin's appeal is whether the man should have been brought to trial in a civilian court in the first place. His attorneys argue that he qualifies as a lawful combatant and is therefore exempt from criminal prosecution.
"The bottom line is that Mr. Hamidullin is a soldier, not a criminal," federal public defender Geremy Kamens told a three-judge panel of the 4th U.S. Circuit Court of Appeals.
The Russian military veteran who was a part of the Taliban-affiliated Haqquani Network was sentenced to life in prison last year on charges including material support to terrorism for the 2009 attack. Hamidullin, who was captured after being shot and wounded, was the lone survivor among about 30 insurgents. The coalition forces sustained no casualties.
His case is one of only two in the last 15 years in which a court considered whether a Taliban fighter enjoyed combatant immunity. The judge in the other case sided with the government.
The extraordinary nature of the case was not lost on the judges on Friday.
"There's a lot of stake here," Judge Robert B. King remarked.
Under the Geneva Convention, fighters are granted prisoner of war status and shielded from criminal prosecution if they have a leadership hierarchy, a distinctive uniform or insignia, carry arms openly and adhere to the laws and customs of war.
Judge King and appeared skeptical of prosecutors' argument that Hamidullin did not meet any of those requirements, noting that the man was the openly carrying an AK-47 at the time of the attack and was considered to be commander of the group.
"That sounds like an organization," King said.
The judges also questioned whether Hamidullin's prosecution would open the door to more fighters being prosecuted in U.S. courts.
"So Congress wants Taliban fighters brought to the U.S. and tried in court?" Judge Andre M. Davis asked.
Prosecutors contend that the Taliban and its affiliated groups aren't exempt from prosecution because, among other things, the war in Afghanistan was not an international conflict in 2009.
Assistant U.S. Attorney Richard Cooke told the panel that it doesn't matter whether Hamidullin was openly carrying arms or wearing a uniform during the attack because he's part of a group that regularly violates the laws and customs of war by intentionally targeting civilians and employing suicide bombers.
"This is a pretty straightforward case at the end of the day," Cooke said.
Kamens told the court that treating Hamidullin as a prisoner of war would cost the government "almost nothing" because it would be entitled to keep him in custody for the duration of the conflict in Afghanistan. He said that ruling in Hamidullin's favor would ultimately benefit U.S. soldiers.
"Our own soldiers should not be subject to domestic criminal law like Hamidullin," Kamens said.
Hamidullin's attorneys want the appeals court to at least grant a new trial and allow the man to at least present a defense that he shouldn't be held criminally liable because he was acting under the direction of the Taliban. The district court judge barred him from presenting such a defense at trial.
A decision is expected in the coming weeks.
Published: Mon, Dec 12, 2016
