Tale­ban fighter con­tests at­tack con­vic­tion, seek­ing im­mu­nity

Kuwait Times - - INTERNATIONAL -

The pros­e­cu­tion of a for­mer Rus­sian mil­i­tary of­fi­cer ac­cused of lead­ing a Tale­ban at­tack on Amer­i­can forces is a rad­i­cal de­par­ture from the US’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 US Cir­cuit Court of Ap­peals.

The Rus­sian mil­i­tary vet­eran who was a part of the Tale­ban-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 Tale­ban 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.

Ex­empt from pros­e­cu­tion

“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 US courts. “So Congress wants Tale­ban fight­ers brought to the US and tried in court?” Judge An­dre M Davis asked.

Pros­e­cu­tors con­tend that the Tale­ban 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 US 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 US 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 present a de­fense that he shouldn’t be held crim­i­nally li­able be­cause he was act­ing un­der the direc­tion of the Tale­ban. The dis­trict court judge barred him from pre­sent­ing such a de­fense at trial. A de­ci­sion is ex­pected in the com­ing weeks. — AP

RICH­MOND: This Nov 7, 2014, artist ren­der­ing shows, Irek Hamidullin, front cen­ter, his at­tor­ney Robert Wag­ner, front left, and in­ter­preter Ihab Samra, front right, as Judge Henry Hud­son, left, lis­tens in Fed­eral Court. — AP

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