When last seen two years ago, a wheelchair-bound Russian national-turned-Afghan jihadist was preaching in an unlikely forum — the federal courthouse in Richmond.
Wounded and captured in a 2009 firefight with United States paratroopers, Irek Hamidullin delivered a 30-minute screed shortly before he was sentenced to life plus 30 years in prison by U.S. District Judge Henry Hudson in a still-unsettled criminal case with groundbreaking legal issues and highly unusual facts.
Last month, the Richmond-based Fourth U.S. Circuit Court of Appeals, which normally decides cases less than three months after hearing argument, ordered Hamidullin’s case be to be re-argued in December — a year after it first heard arguments in Hamidullin’s appeal.
Complications include the retirement last week of one of the three judges on the panel initially handling the case and an unsuccessful attempt by at least one judge — for reasons not specified — to have the entire court take up the case instead of the three-judge panel.
Hamidullin appears to be the first non-American to be tried as a criminal in a U.S. civilian court for his alleged conduct on a foreign battlefield. His 15 convictions in a 2015 jury trial include attempting to destroy a U.S. military aircraft, conspiracy to use a weapon of mass destruction and attempting to kill an officer of the United States.
His lawyers argued to the appeals court panel last year that Hudson erred when ruling that Hamidullin could be prosecuted and was not entitled to the immunity afforded legitimate enemy combatants. Since then, the appeals court has asked for briefs on whether Hudson, or the military, has jurisdiction to answer that question.
Though exceptional, Hamidullin’s case is no longer unique: Ahmed Abu Khatallah, a Libyan and the alleged leader of the 2012 attacks on the U.S. Embassy in Benghazi, Libya, is awaiting criminal trial in federal court in Washington.
Dru Brenner-Beck, a retired U.S. Army lieutenant colonel and former judge advocate who has done legal research and writing on Guantanamo cases, said one of the reasons such cases are popping up is because conflicts often involve insurgents and terrorists rather than conventional military foes.
When conflicts involve groups the U.S. considers to be terrorist organizations and not legitimate armed forces, the U.S. position at times has been that if an applicable federal law has been broken, the members can be tried in federal court, she said.
“That is what I think Abu Khatallah is facing, and I think it’s what you’re seeing with Hamidullin,” said Brenner-Beck.
Lawyers in the offices of the U.S. attorney and federal public defender declined to comment last week on the status of the case. The appeal was filed in December 2015 and argued before the three-judge panel last December, with new arguments set for this December.
Carl Tobias, a professor at the University of Richmond School of Law and expert on the Fourth Circuit, said, “It’s hard to read the tea leaves.” But he said it is unusual for the court to take so long between initial argument, asking for more briefing and then rescheduling new argument.
“All of that is extraordinary,” he said
He said it is likely the request for new arguments is related to the retirement of Judge Andre M. Davis, who left Thursday to become solicitor for the city of Baltimore.
Tobias pointed out it will be a year from the date of the first argument in the case to the one now set for this December. He speculates that the amount of time spent on the case thus far, the request for yet more briefs and the effort to get the full court to hear the case point to the complications involved and suggest that the original panel was split.
A one-page order filed by the court on July 31 shows that the judges polled themselves on whether to take the case up as a full court. The measure lost in a 2-13 vote. Only one of the members of the original three-judge panel, Judge Henry F. Floyd, voted in favor of the full court handling it.
The full court rarely takes up matters initially, as it did earlier this year over President Donald Trump’s travel ban, unless it is a matter of serious public importance. Instead, virtually all cases are first assigned to three-judge panels, Tobias said.
After turning down hearing the case as a full court, on Aug. 10, the case was tentatively rescheduled for argument during its December session and the parties were authorized to file more briefs by Sept. 11.
The court had also asked each side for supplemental briefs on June 23 on whether Hudson had jurisdiction to first decide if Hamidullin qualifies as a prisoner of war under the Third Geneva Convention or if “Army Regulation 190-8” required a military tribunal to determine the legal status of a detainee.
The government argues among other things that Hudson had jurisdiction to rule that Hamidullin did not qualify as a prisoner of war because the Taliban did not satisfy the Third Geneva Convention requirements a military organization must meet for its members to qualify for lawful combatant status.
The prosecution contends that by 2009 when Hamidullin was captured on a battlefield, the conflict with the Taliban was a non-international armed conflict and the regulation applies only to international conflicts.
And even if it did apply, the regulation does not call for a tribunal decision for every captured individual, only when there is doubt as to their legal status. President George W. Bush, a “competent authority,” determined in 2002 that Taliban detainees do not qualify for POW status.
Hamidullin’s lawyers counter that the government is wrong. “The Afghanistan conflict is ‘the first time the United States (has denied) the applicability of the Geneva Conventions to opposing forces in an armed conflict,’” his lawyers wrote.
They ask the appeals court to vacate Hamidullin’s convictions and order his return to military custody.
Brenner-Beck said, “It’s interesting in that somehow it’s morphed into a jurisdictional challenge to federal court because clearly federal court has jurisdiction to try violations of federal law.” She said similar challenges were unsuccessfully raised by Guantanamo prisoners.
The case stems from a 2009 predawn attack on an Afghan border police camp led by Hamidullin. No Afghans or Americans were killed or wounded, but the attackers were wiped out except for Hamidullin, who fired on Afghan police and U.S. soldiers sent to mop up and do battle damage assessment.
After his wounding and capture, he was held at the Bagram Air Force base in Afghanistan, where he implicated himself in surreptitiously recorded statements made to the FBI and was later flown to Virginia for trial.
In a pretrial ruling Hudson wrote, “This case presents issues of war in a unique context. This court’s analysis focuses on the legality, not the wisdom or foreign policy implications, of this prosecution.”
“While many of the principles governing the issues at hand have been well-developed in courts of the United States, their application to a group of insurgents purportedly affiliated with the Taliban is a venture into a new frontier,” he added.
In siding with the government on the question of whether Hamidullin was entitled to lawful combatant status, he wrote that his analysis “focuses on the legality, not the wisdom or foreign policy implications, of this prosecution.”
While the appeals court attempts to settle things, Hamidullin, a 57-year-old former Soviet tank commander and Muslim convert, is being held at the federal “supermax” prison in Florence, Colo., home of 430 inmates deemed the most dangerous in the federal prison system.