United States District Court, E.D. Virginia, Richmond Division
For Irek Ilgiz Hamidullin, also known as Irek Ilgiz Khamidullah, Defendant: Robert James Wagner, LEAD ATTORNEY, Paul Geoffrey Gill, Office of the Federal Public Defender (Richmond), Richmond, VA; Claire Grimmer Cardwell, Stone Cardwell & Dinkin PLC, Richmond, VA.
For USA, Plaintiff: Michael R. Gill, LEAD ATTORNEY, United States Attorney's Office (Richmond), Richmond, VA; James Philip Gillis, United States Attorney's Office, Alexandria, VA; Jennifer E. Levy, United States Department of Justice, Washington, DC.
Henry E. Hudson, United States District Judge.
Defendant's Motions to Dismiss the Indictment
This case involves the detention and subsequent prosecution of Defendant Irek Ilgiz Hamidullin (the " Defendant" ) in the immediate aftermath of his participation in an armed attack on an Afghan Border Police compound in the Khost Province of Afghanistan on November 29, 2009. The case is presently before the Court on a number of challenges to its extraterritorial jurisdiction over the actions of the Defendant. Also at issue is whether, under the law of war, the Defendant is subject to prosecution as a combatant in a theater of war. Both the United States and the Defendant have submitted detailed memoranda supporting their respective positions, and the Court heard evidence and oral argument on June 17-18, 2015. 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.
The complexity of the Court's analysis is compounded in two respects. First, the well of judicial authority applying the law of war to the conflict in Afghanistan and the various schisms of jihadist fighters is finite. While the legal landscape is filled with respectable military and scholarly
treatises, along with a host of public policy position papers, few courts have had occasion to venture into this terrain. In according appropriate weight to these treatises and position papers, courts are confronted with the often challenging task of parsing out political viewpoints and policy considerations from unadulterated legal analyses. As defense counsel aptly pointed out, 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.
Second, while the law of war is not foreign to federal courts, its application has been limited to conventional warfare. This case explores the outer perimeter of the concept of enemy combatants and its width in the present conflict. Central to the analysis is the question of what constitutes an armed force on the battlefield of Afghanistan.
I. The Indictment and Jurisdictional Challenges
According to the Second Superseding Indictment in this case, the Defendant, a former officer and tank commander in the Russian military, was associated with the Haqqani Network, a Taliban-affiliated group of militants operating in Afghanistan. (Second Superseding Indictment 2, ECF No. 55.) The Defendant, acting in league with commanders of other insurgent groups, allegedly participated in the identification of facilities operated by the United States military and the International Security Assistance Force as targets to attack. ( Id. ) One of the targets identified was Camp Leyza, an Afghan Border Police compound in the Tani District, Khost Province, Afghanistan. ( Id. at 3.) In preparation for the assault, the Second Superseding Indictment alleges that the Defendant, and others under his direction, conducted preparatory reconnaissance of the compound. ( Id. ) At that time, Camp Leyza was not occupied by U.S. forces, only Afghan Border Police personnel. ( Id. ) These personnel, however, were part of Coalition Forces operating under the aegis of the International Security Assistance Force, of which the United States was a part. ( Id. )
It is further alleged that on November 29, 2009, the Defendant, in command of three groups of insurgents, attacked Camp Leyza. ( Id. ) The group was armed with assault rifles, rocket-propelled grenade launchers, machine guns, anti-aircraft machine guns, recoilless rifles, portable rockets, grenades, and materials for preparing improvised explosive devices. ( Id. ) When U.S. helicopters responded to the camp, insurgents, under the Defendant's alleged direction, attempted to fire upon them with anti-aircraft weapons. Due to mechanical failure, the weapons were not actually discharged. ( Id. at 4.) Later that morning, U.S. military personnel, accompanied by Afghan Border Police, conducted a battle damage assessment along the perimeter area where the attack occurred. ( Id. ) During the course of this process, the Defendant purportedly fired upon the combined U.S. and Afghan forces with a machine gun. ( Id. ) The Coalition Forces returned fire, wounding the Defendant and taking him into custody. ( Id. )
After a period of detention, the Defendant was indicted by a grand jury in the Eastern District of Virginia, Richmond Division, on October 8, 2014. A Superseding Indictment (ECF No. 52) was returned on April 22, 2015, and a Second Superseding Indictment (hereinafter " the Indictment" ) on April 23, 2015. The Indictment contains fifteen counts, including:
Count One: Conspiracy to Provide Material Support to Terrorists, in violation of 18 U.S.C. § 2339A;
Count Two: Providing Material Support to Terrorists, in violation of 18 U.S.C. § 2339A;
Count Three: Conspiracy to Destroy an Aircraft of the Armed Forces of the United States, in violation of 18 U.S.C. § 32;
Count Four: Attempt to Destroy an Aircraft of the Armed Forces of the United States, in violation of 18 U.S.C. § 32;
Count Five: Conspiracy to Kill an Officer or Employee of the United States or a Person Assisting Such Officer or Employee, in violation of 18 U.S.C. § 1117;
Counts Six and Seven: Attempt to Kill an Officer or Employee of the United States or a Person Assisting Such Officer or Employee, in violation of 18 U.S.C. § 1114;
Count Eight: Conspiracy to Murder a National of the United States, in violation of 18 U.S.C. § 2332(b);
Counts Nine and Ten: Attempt to Murder a National of the United States, in violation of 18 U.S.C. § 2332(b);
Counts Eleven and Twelve: Engaging in Physical Violence with the Intent to Cause Serious Bodily Injury to a National of the United States, in violation of 18 U.S.C. § 2332(c);
Count Thirteen: Conspiracy to Use a Weapon of Mass. Destruction, in violation of 18 U.S.C. § 2332a;
Count Fourteen: Possession of a Firearm in Connection with a Crime of Violence, in violation of 18 U.S.C. § 924(c); and
Count Fifteen: Conspiracy to Possess a Firearm in Connection with a Crime of Violence, in violation of 18 U.S.C. § 924(o).
Defendant entered a plea of not guilty to all fifteen counts.
In two separate, but interrelated, motions, the Defendant disputes the authority of the United States to prosecute him in a federal court for actions he contends were committed as a lawful combatant engaged in an armed conflict. In his Motion to Dismiss the Indictment (ECF No. 62), the Defendant maintains that he is entitled to combatant immunity under well-established laws of armed conflict. The Defendant further believes, as stated in the motion, that the statutes underlying the charges in the Indictment were not intended by Congress to apply to theaters of war. In his opinion, he should be accorded prisoner of war status under Article 4 of the Geneva Convention Relative to the Treatment of Prisoners of War (hereinafter the " GPW" ). Accordingly, he asks the Court to dismiss the Indictment.
In a second closely allied motion, the Defendant moves the Court to dismiss the Indictment based on due process concerns, notice and jurisdictional defects (hereinafter " Def's Mot. Dismiss Based on Due Process," ECF No. 68). Distilled to its essence, the Defendant argues that his actions had an insufficient nexus to the United States and that he had inadequate notice that he would be prosecuted for such conduct in the field of battle. He asserts that no sensible person could possibly have " reasonably anticipate[d] being haled into court" in the United States for conduct in Pakistan and Afghanistan, and prosecuted for alleged crimes on a battlefield,
on foreign soil, against foreign nationals. (Def.'s Mot. Dismiss Based on Due Process 1.) He points out that there is no allegation that he killed or injured any U.S. employee or damaged any U.S. property. He also notes that no other Taliban solider has been prosecuted in the United States for engaging in combat in Afghanistan.
II. The Viewpoints of Experts
A. History and Governance
Before discussing the appropriate analytical framework for determining the Defendant's legal status, some historical context is instructive. To provide this context, the Court recounts the relevant testimony provided at the evidentiary hearing on June 17, 2015.
The government's first witness at the hearing was Barclay Adams (" Adams" ), a senior intelligence officer for Afghan political security issues at the United States Central Command, which is the military command responsible for the Middle East, Central, and South Asia. Adams's responsibilities include overseeing a team of intelligence analysts who provide assessments to the general officers in command of the armed forces in Afghanistan. Prior to assuming his present position, Adams served as an intelligence analyst for the Joint Staff Afghanistan/Pakistan Task Force at the Pentagon. In that capacity, he focused specifically on the Afghan insurgency and other militant groups in South Asia. (Mots. Hr'g Tr., June 17, 2015, 7:10-8:19 (hereinafter " June 17 Tr." ).)
Adams explained that the Haqqani Network, with which the Defendant is believed to be affiliated, merged with the Taliban in the mid-1990s. ( Id. at 11:23-12:21.) He identified the leader of the Taliban as Mullah Omar (" Omar" ), whose immediate subordinates are referred to as the " Senior" or " Quetta" Shura. ( Id. at 18:17-22.) This group, or council, of approximately two dozen governors, is responsible for enforcing and interpreting Omar's directives. ( Id at 18:19-25.) Since 2003, the Haqqani Network has had a representative on the Shura. ( Id. at 25:5-10.)
Adams indicated that during the 2009 timeframe of the Indictment, the Taliban and Haqqani movements were operating from an area within Pakistan known as the Federally Administered Tribal Area (" FATA" ). ( Id. at 14:5-13.) This area, near the Afghan border, is somewhat independent and not under the tight control of the Pakistani government. ( Id at 14:13-14.) The Khost Province, where the events in the Indictment occurred, is situated in eastern Afghanistan and is under the general control of the U.S. military operating in association with the Afghan government. ( Id. at 14:9-18; 14:23-15:4.)
Adams characterized the Taliban as exercising a distinct level of command and control in southern Afghanistan. ( Id at 19:14-22.) This structure, according to Adams, is less well-defined in the western, northern, and eastern parts of the country. ( Id. at 19:23-20:4.) The Taliban has not exercised any general governmental control in Afghanistan since 2001. ( Id. at 21:10-14.) He described the Haqqani Network as exerting better overall command and control than the Taliban. ( Id. at 22:13-20.) In his opinion, the Haqqani Network often governs independently of the Taliban, which is tolerated because the Taliban needs them as an ally. ( Id. at 23:13-18.) Adams also indicated that the Haqqani Network is more brutal than the Taliban, as they are known to indiscriminately kill civilians and kidnap journalists
and other individuals, who are typically bartered for ransom. ( Id. at 23:22-24:7.)
Adams was also asked on direct examination to identify a document entitled " Afghanistan Islamic Emirate, Rules and Regulations for Mujahidin" (" Rules and Regulations for Mujahidin," Gov't's Ex. 3, Mots. Hr'g, June 17; June 17 Tr. 25:18-19.) The version presented to Adams, apparently seized in a combat zone, was published in 2009. (June 17 Tr. at 26:14-17.) Adams spent the rest of his testimony discussing the Taliban's faithfulness to their rules.
First, Adams explained that although Rules 9, 10, 11, and 12 dictate procedures for processing Afghan National Army soldiers or police officers, and generally disallow execution without Omar's authority, the rules are disregarded in practice. ( Id. at 27:8-30:14.) According to Adams, Afghan military personnel and police officers typically are summarily executed upon capture. ( Id. at 27:21-23.) Rule 18 dictates that any prisoner to be killed must be hanged or beheaded. ( Id. at 30:17-20.) With respect to civilian contractors operating in Afghanistan, Rules 19 through 21 set forth procedures for their detention and processing. ( Id. at 30:21-32:10.) Again, however, Adams explained that most contractors are ambushed and killed on the spot. ( Id. at 31:20-21.)
Additionally, contrary to Rule 41 of the Rules and Regulations for Mujahidin, Adams noted that children with mental disabilities are frequently used for suicide bombings which often target local civilian populations. ( Id. at 33:16-17.) He testified that under Rule 41, such assaults were to be limited to high officials. ( Id. at 33:23-24.) Rule 51 prohibits the mutilation of civilian populations. ( Id. at 35:22-36:1.) In Afghanistan, according to Adams, citizens who vote in elections are fingerprinted. He indicated that the Taliban frequently confront voters supporting the official Afghan government and amputate their ink-stained finger. ( Id. at 36:3-12.)
Of particular importance to the immediate case is Rule 63 of the Rules and Regulations for Mujahidin. This rule directs Taliban fighters to wear the same uniform or clothing as local citizens, or that of the enemy. ( Id. at 38:16-20.) The objective of Rule 63, as explained by Adams, is to conceal their identity from enemy forces. ( Id. at 38:21-25.) According to Adams, the Taliban had no uniforms in 2009, nor any type of distinctive insignias. ( Id. at 39:20-25.) After explaining the Taliban's rules of engagement, Adams's attention was directed to acts of violence against the civilian population from 2009 to the present date. Adams estimated that the Taliban, or their affiliates, perpetrate approximately 10,000 attacks a year on military and civilian targets in Afghanistan. ( Id. at 40:25-41:13.) He added that approximately sixty-seven percent of all civilian casualties in that country are attributed to the Taliban. ( Id. at 42:12-16.) He indicated that his research has verified these statistics. ( Id. at 49:10-25.) Adams identified the government's Exhibit 2, entitled " Sampling of Taliban Acts of Violence," as containing an accurate description of examples of attacks on military and civilian targets between 2009 and the present date. (June 17 Tr. 49:10-25.)
On cross examination, Adams acknowledged that in 2001 the Taliban were in control of most of the territory of Afghanistan and had universally-recognized command of its army. ( Id. at 50:21-51:11.) He also agreed that the Haqqani Network was declared a foreign terrorist organization in 2012, but the Taliban has never been so designated. ( Id. 51:14-23.)
To provide further historical and political background, the government next called John R. Dempsey ...