Transfers, Releases & Resettlements

Detainee Transferred from Afghanistan to US for Trial: A Model for GTMO Closure?

By Robert Chesney
Tuesday, November 4, 2014, 6:28 PM

A very interesting development today with respect to the ongoing effort to complete the shut-down of US-administered military detention in Afghanistan:

As you may recall, we have long since ceased holding any Afghans in military detention in Afghanistan, but we have maintained a rump population of non-Afghan detainees in our control. It has been clear for a very long time this situation cannot be maintained forever (both because of our shrinking physical presence in Afghanistan and because, at some point along the withdrawal continuum, there may no longer be a law of war justification for detention in certain cases). And so we've been trying to find reasonable disposition options for those lingering detainees. Which brings us to today's news: one of the detainees has been brought to the US to face civilian criminal prosecution (much as was done long ago with John Walker Lindh, and similar to what was done with former GTMO detainee Ahmed Ghailani and was contemplated for KSM and the other 9/11 defendants).

According to the indictment, Irek Hamidullin is a Russian citizen who served as a commander in the Haqqani Network. On November 29, 2009, he allegedly orchestrated an attack on an Afghan Border Police facility during which he also arranged for anti-aircraft fire in anticipation of an American air response, and when he subsequently encountered US and Afghan forces conducting a battle-damage assessment he fired upon them. The twelve-count indictment includes material support (18 USC 2339A) and conspiracy to provide material support, conspiracy and attempt to destroy US military aircraft (18 USC 32), conspiracy and attempt to kill officers of the United States (18 USC 1117 and 1114), conspiracy and attempt to murder US nationals (18 USC 2332(b)), engaging in violence with intent to harm US nationals (18 USC 2332(c)), conspiracy to use a weapon of mass destruction [n.b., 18 USC 2332a, the "WMD statute," has a non-intuitive definition of wmd that encompasses ordinary weaponry], and possession and conspiracy to possess firearms in connection with a violent crime (18 USC 924(c) and (o)).

Assuming that prosecutors have admissible evidence concerning these allegations, it should not prove a tricky case for the government. That is, I do not see any particularly-difficult questions about the charges given the direct involvement of the defendant in acts of violence and the direct involvement of US personnel as intended victims. To the extent other cases at Parwan or GTMO share these qualities, the Hamidullin prosecution can be seen as a model. But of course it does not follow that other detainees at either location are similarly situated either with respect to the evidence or the charges that might be available. At any rate, the Hamidullin prosecution will bear watching; if the prosecution somehow fumbles this one, it will make it vastly harder to make civilian prosecution in the US part of any future strategy for GTMO closure.