RICHMOND, Va. – A former Russian military officer who received a life sentence for leading a Taliban attack on U.S. forces in Afghanistan in 2009 was a soldier, not a criminal, and should have been treated as a lawful combatant, his lawyer argued before a federal appeals court Tuesday.
But a Justice Department lawyer told the 4th U.S. Circuit Court of Appeals that Irek Hamidullin, who led the attack on behalf of the Taliban and its allied terrorist organization, the Haqqani Network, was not entitled to protections given prisoners of war. He said Taliban members were excluded under a 2002 declaration by then-President George W. Bush.
The three-judge panel peppered both sides with questions about what should determine whether Hamidullin should have been given lawful-combatant status.
Judge J. Harvie Wilkinson III repeatedly questioned Hamidullin's Lawyer, Federal Public Defender Geremy Kamens, about his argument that prosecuting Hamidullin in a civilian court violated the "fundamental concept that soldiers are not criminals."
Wilkinson said that by the time Hamidullin led the attack in 2009, the Taliban was not recognized as a nation state and instead was widely viewed as "a bunch of marauders."
"Taliban fighters are not lawful combatants," Wilkinson said.
Hamidullin, who was captured after being shot and wounded, was the lone survivor among about 30 insurgents. The coalition forces sustained no casualties.
Kamens argued that under the Geneva Conventions and an Army regulation, Hamidullin was entitled to protections as a prisoner of war from the moment he was captured until a military tribunal determined his status. Kamens said Hamidullin has never had a hearing before a tribunal, so he therefore remains a prisoner of war who is immune from ordinary domestic criminal liability.
"It is absolutely clear that this individual is a soldier," Kamens said.
The court first heard arguments last December, but scheduled a second hearing after one of the judges on the panel announced he was stepping down to serve as Baltimore's city solicitor.
Judge Robert King questioned the government's lawyer, Joseph Palmer, about how the government decided that Hamidullin — who spent five years in military detention — would be tried in a civilian court in Virginia. He was sentenced to life in prison in 2015.
King said there appears to be no record of how the decision was made. "That's what troubles me," he said.
Palmer said the government "has never wavered in its determination that Taliban are not eligible for prisoner-of-war status." He said that by 2009, the war in Afghanistan was no longer classified as an international armed conflict, so that prisoner-of-war protections would not apply.
Under the Geneva Convention, the protections apply only during an international armed conflict and if fighters have a leadership hierarchy, a distinctive uniform or insignia, carry arms openly and adhere to the laws of war. The government said Hamidullin was a member of a group that regularly violates the laws of war by targeting civilians.
The U.S. is among nations that distinguish between acts committed by soldiers during war and violent acts outside an international conflict.
There has been only one criminal prosecution in the past 15 years in which a court considered whether a Taliban fighter had combatant immunity. In that case, the judge ruled for the government.
Hamidullin's lawyers are asking the appeals court to throw out his convictions and transfer him to the custody of the U.S. military to determine his status.
The court did not indicate when it would rule.