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United States v. Hamidullin

United States Court of Appeals, Fourth Circuit

April 18, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
IREK ILGIZ HAMIDULLIN, a/k/a Irek Ilgiz Khamidullah, Defendant-Appellant.

          Argued: December 5, 2017

          Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:14-cr-00140-HEH-1)

         ARGUED:

          Geremy C. Kamens, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.

          Joseph F. Palmer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

         ON BRIEF:

          Paul G. Gill, Robert J. Wagner, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant.

          Jennifer E. Levy, National Security Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Dana J. Boente, United States Attorney, Alexandria, Virginia, Benjamin L. Hatch, Assistant United States Attorney, James P. Gillis, Assistant United States Attorney, Norfolk, Virginia, Richard D. Cooke, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee

          Before WILKINSON, KING, and FLOYD, Circuit Judges.

          FLOYD, CIRCUIT JUDGE

         Appellant Irek Hamidullin appeals his conviction for, among other things, providing and conspiring to provide material support to terrorists, in violation of 18 U.S.C. § 2339A, and conspiring and attempting to destroy an aircraft of the United States Armed Forces, in violation of 18 U.S.C. § 32. Hamidullin contends that the district court erred in concluding that he was not entitled to combatant immunity under the Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 ("Third Geneva Convention" or "Convention"), and that he did not qualify for the common law combatant immunity defense of public authority. Hamidullin also challenges his conviction for violating 18 U.S.C. § 32, arguing that § 32 does not apply to otherwise lawful military actions committed during armed conflicts.

         We affirm, concluding that Hamidullin is not entitled to combatant immunity. We also conclude that § 32 clearly applies.

         I. Irek Hamidullin is a former Russian Army officer affiliated with the Taliban and Haqqani Network. He was captured by the Afghan Border Police and American soldiers in the Khost province of Afghanistan in 2009 after he planned and participated in an attack on an Afghan Border Police post at Camp Leyza. He was taken into U.S. custody and held in U.S. facilities in Afghanistan. He was later indicted in the Eastern District of Virginia for acts associated with the attack, first in a twelve-count indictment and later in a fifteen-count second superseding indictment. The charges against him included providing and conspiring to provide material support to terrorists, conspiring and attempting to destroy an aircraft of the United States Armed Forces in violation of 18 U.S.C. § 32, conspiring and attempting to kill an officer or employee of the United States, and conspiring to use a weapon of mass destruction.

         Prior to trial, Hamidullin moved for dismissal of the second superseding indictment on the grounds that he qualified for combatant immunity pursuant to the Third Geneva Convention and common law. Hamidullin also moved to dismiss his 18 U.S.C. § 32 charge, arguing that the statute was not intended to apply to lawful military actions.

         The district court held an evidentiary hearing on Hamidullin's motions at which experts testified as to the applicability of the Third Geneva Convention and laws of war in Hamidullin's circumstance and as to the structure and practices of the Taliban and the Haqqani Network. Thereafter, the court denied Hamidullin's motion to dismiss. The district court assumed without deciding that in 2009, when the alleged acts took place, the conflict in Afghanistan was an international armed conflict and determined that Hamidullin was not a lawful combatant because neither the Taliban nor the Haqqani Network fell within any of the categories of lawful combatants listed in Article 4 of the Third Geneva Convention. Thus, the district court concluded that, as a matter of law, Hamidullin was not entitled to combatant immunity under the Third Geneva Convention or common law and precluded him from presenting this defense at trial. The district court also determined that the plain language of 18 U.S.C. § 32 embraced unlawful acts in a combat zone.

         In August 2015, Hamidullin was convicted by a jury on all charges and sentenced to multiple life sentences. On appeal, Hamidullin argues that the district court erred in (1) holding that his prosecution was not barred by the doctrine of combatant immunity, as articulated by the Third Geneva Convention and common law, and (2) determining that 18 U.S.C. § 32 applied to his actions. On June 23, 2017, this Court ordered supplemental briefing to address whether the district court possessed jurisdiction to decide, in the first instance, whether Hamidullin qualifies for combatant immunity under the Third Geneva Convention. In particular, we requested briefing on whether the district court's jurisdiction was affected by Army Regulation 190-8-which implements international law relating to detention during armed conflicts. In response, Hamidullin argues that Army Regulation 190-8 requires that this Court vacate his conviction and remand with instructions that he be transferred to the U.S. military for treatment in accordance with Army Regulation 190-8.

         II. Hamidullin argues he is entitled to combatant immunity under various theories. Accordingly, we begin with a brief discussion of the doctrine of combatant immunity. Combatant immunity is rooted in the customary international law of war and "forbids prosecution of soldiers for their lawful belligerent acts committed during the course of armed conflicts against legitimate military targets." United States v. Lindh, 212 F.Supp.2d 541, 553 (E.D. Va. 2002). Instead, "[b]elligerent acts committed in armed conflict by enemy members of the armed forces may be punished as crimes under a belligerent's municipal law only to the extent that they violate international humanitarian law or are unrelated to the armed conflict. Id. In order to invoke combatant immunity, a combatant must also be lawful, as described below. Ex parte Quirin, 317 U.S. 1, 31 (1942) ("Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.").

         The current doctrine of combatant immunity is codified in the Third Geneva Convention. The Third Geneva Convention is one of four international agreements drafted in the wake of World War II to govern the status and treatment of wounded and captured military personnel and civilians in wartime.[1] See Adriana Sinclair, Geneva Conventions, in 1 The Oxford Encyclopedia of American Military and Diplomatic History 414 (Timothy J. Lynch ed., 2013). The Geneva Conventions have been signed and ratified by every country in the world, including the United States. Id. The Conventions therefore have the force of law in the United States. U.S. Const. art. VI, cl. 2.

         Article 2 of each of the Geneva Conventions renders the full protections of the Conventions, including combatant immunity, applicable only in international armed conflicts between signatories of the Conventions. Third Geneva Convention, art. 2. ("[T]he present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties"). If Article 2 is applicable, then the Third Geneva Convention provides that lawful combatants who are captured in such a conflict are considered prisoners of war (POWs). The categories of combatants qualifying as lawful are listed in Article 4 of the Convention. Two of these categories are relevant in this case:

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
(1) ....
(2)Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a)that of being commanded by a person responsible for his subordinates;
(b)that of having a fixed distinctive sign recognizable at a distance;
(c)that of carrying arms openly;
(d)that of conducting their operations in accordance with the laws and customs of war.
(3)Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

Id. art. 4(A)(2)-(3). Under the Convention, POWs are granted combatant immunity.[2]See id. art. 87 (stating that POWs "may not be sentenced... to any penalties except those provided for in respect of members of the armed forces of the [detaining] Power who have committed the same acts"); id. art. 102 ("A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power, and if, furthermore, the provisions of the present Chapter have been observed."). If there is doubt as to whether a captured combatant is a lawful combatant and thus entitled to POW status, Article 5 of the Convention requires that the captured person be treated as a POW until their status is determined by a "competent tribunal." Id. art. 5 ("Should any doubt arise ... such persons shall enjoy the protection of the [Third Geneva] Convention until such time as their status has been determined by a competent tribunal."). The text of the Convention is silent as to what qualifies as a competent tribunal.

         When a conflict is not an international conflict between Geneva Convention signatories, at least one article of the Geneva Conventions still applies. Article 3 of each Convention provides that in an "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, " certain provisions, including protecting "[p]ersons taking no active part in the hostilities, " and refraining from "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." Id. art 3; see also Hamdan v. Rumsfeld, 548 U.S. 557, 629-30 (2006). Thus, Article 3 allows for combatants captured during non-international conflicts to face trial and judgment for their actions as long as they are tried in the opposing force's country's "regularly constituted court." Id.; see also 1 Int'l Comm. of Red Cross (ICRC), Customary International Humanitarian Law 354-55 (2005) (stating that pursuant to Article 3 of the Third Geneva Convention, captured combatants can be sentenced in a "regularly constituted court" that is "established and organised in accordance with the laws and procedures already in force in a country.")[3].

         The Supreme Court has determined that Article 2 of the Third Geneva Convention applies when a conflict "involve[s] a clash between nations, " whereas Article 3 "affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory 'Power' who are involved in a conflict." See Hamdan, 548 U.S. at 628-29 (discussing the conflict in Afghanistan between the U.S. and al-Qaeda and applying Article 3). See also ICRC, Commentary on the Additional Protocols to the Geneva Conventions of 12 August 1949 1350-51 (1987) (discussing the Conventions' distinction between international and non-international conflicts and explaining that "in a non-international armed conflict the legal status of the parties involved in the struggle is fundamentally unequal. Insurgents (usually part of the population), fight against the government in power").

         Here, Hamidullin claims that he cannot be tried in a United States criminal court because he is a POW entitled to combatant immunity under the Third Geneva Convention. We now turn to that inquiry.

         III.

         As a threshold matter, we must consider whether the district court had jurisdiction[4]to decide in the first instance whether Hamidullin qualified as a POW under the Third Geneva Convention, or whether Army Regulation 190-8 requires that his status first be determined by a military tribunal.

         Army Regulation 190-8 controls the Army, Navy, Air Force, and Marine Corps approach to the treatment and care of enemy prisoners of war and other detainees. Army Reg. 190-8, i. The regulation articulates a general policy that "[a]ll persons taken into custody by U.S. forces will be provided with the protections of the [Third Geneva Convention], " id. 1-5(a)(2), and that "[i]n accordance with Article 5 [of the Convention], if any doubt arises as to whether a person... belongs to any of the categories enumerated in Article 4, ... such persons shall enjoy the protection of the [Third Geneva] Convention until such time as their status has been determined by a competent tribunal, " id. 1-6(a). Army Regulation 190-8 further states:

A competent tribunal shall determine the status of any person not appearing to be entitled to prisoner of war status who has committed a belligerent act or has engaged in hostile activities in aid of enemy armed forces, and who asserts that he or she is entitled to treatment as a prisoner of war, or concerning whom any doubt of a like nature exists.

Id. 1-6(b) (emphasis added). Army Regulation 190-8 defines a competent tribunal as a tribunal "composed of three commissioned officers." Id. 1-6(c).

         Hamidullin argues that Army Regulation 190-8 limits the ability of Article III courts to hear criminal claims against him. He contends that, like in the context of the federal prosecution of juveniles and hate crimes, when the Attorney General must make a certification to the district court demonstrating the unavailability or inappropriateness of state court prosecution prior to federal prosecution, the government must comply with Army Regulation 190-8 prior to proceeding with the criminal prosecution of captured combatants. See 18 U.S.C. § 5032; 18 U.S.C. § 249(b). He asserts that Army Regulation 190-8 requires that any doubt about the applicability of combatant immunity to captured combatants be resolved in the first instance by a competent tribunal composed of three military officers. Because no such tribunal determined his status, Hamidullin contends that he is immune from criminal prosecution in civilian court and should be remanded to the custody of the U.S. military. This argument is unpersuasive.

         A.

          Army Regulation 190-8's general implementation of the Third Geneva Convention does not impact the district court's jurisdiction in this case. Army Regulation 190-8 confirms that persons taken into custody by U.S. forces will be provided Geneva Convention protections. The regulation implements Article 5 of the Convention and provides that if there is doubt as to whether a detained person is a POW, as defined by the Third Geneva Convention, the detainee "shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." Army Reg. 190-8, 1-6(a). Critically, however, Army Regulation 190-8, in implementing Article 5, is also restricted by Article 5's applicability. Article 2 of the Convention provides that the Article 5 determination of POW status by a competent tribunal is only applicable in cases of international armed conflict between Convention signatories. Consequently, Army Regulation 190-8, by its own terms, only provides that POW status is determined by a competent tribunal in cases of international armed conflict. We conclude, however, that at the time of Hamidullin's offense, the conflict in Afghanistan was not an international armed conflict, and therefore that the Army Regulation 190-8 and the Article 5 requirement that POW status be determined by a competent tribunal does not apply.

         The conflict in Afghanistan began in 2001 as an international armed conflict arising between two or more Third Geneva Convention signatories―it was a conflict between the United States and its coalition partners on one side, and the Taliban-controlled Afghan government on the other. See J.A. 265-66. Shortly thereafter, in 2002, the Taliban lost control of the government and was replaced by a government led by Hamid Karzai. See J.A. 270. The United States and its coalition partners remained in Afghanistan at the request of this new government, assisting it in combating the continued Taliban insurgency. J.A. 311-12. Thus, by 2009, the conflict in Afghanistan had shifted from an international armed conflict between the United States and the Taliban-run Afghan government to a non-international armed conflict against unlawful Taliban insurgents.

         The Pictet Commentary, which the Supreme Court has found instructive in interpreting the Third Geneva Convention in Hamdan, 548 U.S. at 619-20, supports the conclusion that in 2009, the conflict in Afghanistan was non-international. The Pictet Commentary explains that Article 4(A)(3) of the Convention, which defines POWs to include "[m]embers of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power, " Third Geneva Convention, art. 4(A)(3), was a response to the refusal of certain states to recognize the combatant immunity of French followers of General Charles de Gaulle fighting during World War II, ICRC, Commentary to Geneva Convention III Relative to the Treatment of Prisoners of War 62 (J. Pictet ed., 1960) ("[Article 4] must be interpreted, in the first place, in the light of the actual case which motivated its drafting-that of the forces of General de Gaulle which were under the authority of the French National Liberation Committee."). Article 4(A)(3) was drafted to afford POW protections to combatants who, like the Free French led by General de Gaulle, continued to engage in armed conflict even after a new government had been installed in their country and reached an armistice with a once-adversary. Id. at 61-63. However, Article 4(A)(3) is not without limit; indeed, the drafters of the Third Geneva Convention feared that an overly broad interpretation of Article 4(A)(3) would be "open to abusive interpretation" and lead "to the formation of armed bands." Id. at 62, 63. The Pictet Commentary, therefore, makes clear that the installation of a new government by an invading power is not enough to convert a conflict from international to non-international. Rather, some level of international recognition is required for the conflict to remain an "international armed conflict." Id. at 63 ("It is not expressly stated that this Government or authority must, as a minimum requirement, be recognized by third States, but this condition is consistent with the spirit of the provision, which was founded on the specific case of the forces of General de Gaulle." (emphasis added)). In the case of the Free French, the ousted government led by General de Gaulle was recognized by the Allied forces. Conversely, by the time Hamidullin was captured, the Taliban had been removed from power for eight years and no country recognized the Taliban as the legitimate government of Afghanistan. J.A. 275-76 (explaining that the last country recognizing the Taliban government withdrew its recognition within months of 9/11). Thus, the Pictet Commentary suggests that in 2009, the conflict in Afghanistan was a non-international armed conflict for the purposes of the Convention.

         The International Committee of the Red Cross and the executive branch of the United States government have reached this same conclusion. See ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts 10 (2011) ("As the armed conflict does not oppose two or more states, i.e. as all the state actors are on the same side, the conflict must be classified as non-international, regardless of the international component, which can at times be significant. A current example is the situation in Afghanistan (even though that armed conflict was initially international in nature)."); ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts 7 (2007) ("This conflict [against the Taliban and Al-Qaeda] is non-international . . . because it is being waged with the consent and support of the respective domestic authorities and does not involve two opposed States."); see also The White House, Report on the Legal and Policy Frameworks Guiding the United States' Use of Military Force and Related National Security Operations 19, 32 (2016) (stating that the United States is currently engaged only in non-international armed conflicts). Common sense agrees. If the conflict in Afghanistan was originally an international armed conflict occurring between two "High Contracting Parties"-the United States and the Afghan government-the conflict cannot remain international when the conflict between the recognized Afghan government and the United States has ceased. Accordingly, the provision in Army Regulation 190-8 directing that POW status be determined in accordance with Article 5 is inapplicable, and Hamidullin's argument that these provisions require a competent tribunal to determine his POW status must fail.

         Instead, because we conclude that the conflict in Afghanistan was non-international at the time of Hamidullin's offense, the protections of Article 3 of the Convention apply. Under Article 3, however, there is no provision entitling combatants captured during non-international conflicts to POW status or the resulting combatant immunity. Therefore, there is no process by which Hamidullin is entitled to a determination of whether he is a POW, as no POW status exists under Article 3, and, consequently, combatant immunity cannot be granted.

         Pursuant to Article 3, Hamidullin can be sentenced in a "regularly constituted court" that is "established and organised in accordance with the laws and procedures already in force in a country." 1 ICRC, Customary Int'l Humanitarian Law 355 (2005) (interpreting Third Geneva Convention, art. 3). A U.S. federal district court is one such court. See 18 U.S.C. § 3231 ("The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States."); Hamdan, 548 U.S. at 632, 635 (clarifying that "Article 3 [of the Conventions]... tolerates a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems"). Thus, the district court had jurisdiction to adjudicate Hamidullin's case irrespective of Army Regulation 190-8's invocation of Article 5 of the Convention.

         B.

         Hamidullin also argues that Army Regulation 190-8's statement that "[a] competent tribunal shall determine the status of any person not appearing to be entitled to prisoner of war status ... who asserts that he or she is entitled to treatment as a prisoner of war" entitles him to a competent tribunal regardless of whether the 2009 conflict was international. Id. 1-6(b) (emphasis added). We disagree.

         To be sure, military regulations have the force of law. Standard Oil Co. of Cal. v. Johnson, 316 U.S. 481, 484 (1942) ("War Department regulations have the force of law."); United States v. Eliason, 41 U.S. (16 Pet.) 291, 302(1842) ("[R]ules and orders publicly promulged [sic] through [the secretary of war] must be received as the acts of the executive, and as such, be binding upon all within the sphere of his legal and constitutional authority."). However, both the Supreme Court and this Court have made clear that military law does not govern our Article III jurisprudence. See United States v. Rendon, 607 F.3d 982, 990 (4th Cir. 2010) ("[M]ilitary law 'is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment.' " (quoting Burns v. Wilson, 346 U.S. 137, 140 (1953))). Consequently, a regulation such as Army Regulation 190-8, 1-6(b), cannot preclude district court jurisdiction when doing so contravenes Congress's grant of jurisdiction to the judiciary.

         Hamidullin's interpretation of Army Regulation 190-8, 1-6(b), would allow an internal executive branch regulation to strip Article III courts of their statutorily granted jurisdiction. At the time of his trial, Hamidullin was in civilian custody and under indictment for civilian crimes over which Congress has granted exclusive jurisdiction to Article III district courts. See 18 U.S.C. § 3231. During his civilian criminal proceeding Hamidullin raised a defense-combatant immunity-that is inextricably tied up in questions of treaty interpretation. This defense does not deprive the district court of its authority to hear Hamidullin's case, as there can be no question that it is the role of the judiciary, not the executive, to interpret treaties. To quote the Supreme Court in Sanchez-Llamas v. Oregon:

Under our Constitution, "[t]he judicial Power of the United States" is "vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Art. III, § 1. That "judicial Power... extend[s] to ... Treaties." Id. § 2. And, as Chief Justice Marshall famously explained, that judicial power includes the duty "to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). If treaties are to be given effect as federal law under our legal system, determining their meaning as a matter of federal law "is emphatically the province and duty of the judicial department, " headed by the "one supreme Court" established by the Constitution. Id; see also Williams v. Taylor, 529 U.S. 362, 378-379 (2000) (opinion of Stevens, J.) ("At the core of [the judicial] power is the federal courts' independent responsibility- independent from its coequal branches in the Federal Government, and independent from the separate authority of the several States-to interpret federal law").

548 U.S. 331, 353-54 (2006). Determining the meaning of the Third Geneva Convention as a matter of federal law "is emphatically the province and duty of the judicial department, " Marbury, 5 U.S. (1 Cranch) at 177, and remanding this case to the executive branch to determine the Convention's meaning and applicability to Hamidullin in the first instance would be an abdication of "the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them." Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).

         Of course, the executive may engage in the interpretation of treaties in order to implement them into its own internal procedures and regulations. Such interpretations are "entitled to great weight" and can inform the judiciary's own interpretations. Abbott v. Abbott, 560 U.S. 1, 15 (2010) (discussing the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 24, 1980, T.I.A.S. No. 11670); see also Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184-85 (1982). Here, the Executive Branch has used Army Regulation 190-8 to implement the protections of the Third Geneva Convention. Additionally, the executive has explicitly expressed its interpretation of the Third Geneva Convention with regards to the Taliban. In 2002, when the conflict in Afghanistan was still considered an international armed conflict and, thus, Article 4 of the Convention applied to determine whether a combatant qualified as a POW, President George W. Bush determined that Taliban detainees did not qualify as POWs because they were unlawful combatants. Memorandum of President George W. Bush to the Vice President, et. al. (Feb. 7, 2002); see also Hamdan v. Rumsfeld, 415 F.3d 33, 43 (D.C. Cir. 2005), rev'd on other grounds, 548 U.S. 557 (2006) ("The President found that Hamdan was not a prisoner of war under the Convention. Nothing in [Army Regulation 190-8], and nothing [petitioner] argues, suggests that the President is not a 'competent authority' for these purposes.").

         Hamidullin asks us to provide a three-member military tribunal with the authority to displace the president's interpretation of the Convention. In arguing that Army Regulation 190-8, 1-6(b) applies even if at the time of his offense the conflict in Afghanistan was non-international, Hamidullin requests that we remand him to military custody to allow a tribunal to determine whether the Third Geneva Convention provides him with combatant immunity. This will necessarily involve a reconsideration of President Bush's interpretation of the Convention, as the Convention only extends combatant immunity to combatants involved in international armed conflicts. Accordingly, Hamidullin not only asks this Court to abdicate our duty to decide cases properly within our jurisdiction, but also asks us to ignore the legal determination already made by the President of the United States, and to instead authorize a panel of three mid-level, non-lawyer military officers to usurp our authority and responsibility. See Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949, 26 Op. O.L.C. 1, 9 (2002). (stating that Article 5 "[t]ribunals are ... designed to determine whether a particular set of facts falls within one of the Article 4 categories; they are not intended to be used to resolve the proper interpretation of those categories."). Moreover, remanding this case to a military tribunal to make a legal determination that the Commander-in-Chief has already made could lead to an inconsistent application of the laws of war, would undermine the United States and its partners' current application of the legal framework for non-international armed conflicts in Afghanistan, and, perhaps most troubling, would violate separation of powers principles by conferring our responsibility to hear cases properly within our jurisdiction upon a three-member military tribunal.[5]We cannot allow Hamidullin's interpretation of Army Regulation 190-8 to upend our system of governance. It is the responsibility of this Court―not of a three-member panel of military officers―to decide the lawfulness of the executive's interpretation. See Sanchez-Llamas, 548 U.S. at 353-54.[6]

         Consequently, we conclude that the district court had jurisdiction to determine whether Hamidullin qualifies as a POW and was entitled to combatant immunity under the Convention, irrespective of Army Regulation 190-8. We therefore decline to remand Hamidullin to military custody, and turn to the merits of his combatant immunity defenses.

         IV. Hamidullin argues he is entitled to combatant immunity pursuant to the Third Geneva Convention and common law. We review the district court's factual findings for clear error, and its legal determinations de novo. United States v. Washington, 398 F.3d 306, 310 (4th Cir. 2005).

         A. To be entitled to combatant immunity, the Third Geneva Convention requires that a combatant (1) be captured during an international armed conflict, Third Geneva Convention, art. 2, and (2) be a lawful combatant-in other words, the combatant must belong to one of the Article 4 categories defining POW's, id. art. 4. Article 4 lists six categories of lawful combatants, but only two categories, Article 4(A)(2) and (A)(3), are relevant here. Article 4(A)(2) provides that members of militias belonging to a party to the conflict are lawful combatants entitled to POW status so long as they are commanded by a person responsible for subordinates, carry a "fixed distinctive sign, " carry arms openly, and operate in accordance with the laws of war. Id. art. 4(A)(2). Article 4(A)(3) provides that "[m]embers of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power" are likewise POWs. Id. art. 4(A)(3).

         Below, the district court assumed, without deciding, that the conflict in Afghanistan in 2009 was international and determined that neither the Taliban nor the Haqqani Network fit into an Article 4 category. It held that the Taliban and Haqqani Network most closely resembled a "militia" or "organized resistance movement" as described in Article 4(A)(2), but that neither organization fulfilled the criteria of Article (4)(2). Specifically, the district court found that neither organization has a fixed, distinctive sign recognizable at ...


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