What We Don’t Know About Irek Hamidullan

This Washington Post story reports that “[t]he Obama administration is actively considering the use of a military commission in the United States to try a Russian who was captured fighting with the Taliban several years ago and has been held by the U.S. military at a detention facility near Bagram air base in Afghanistan.”

The story quotes Andrea Prasow of Human Rights Watch as suggesting that Irek Hamidullan should instead be tried in an article III court for material support to terrorism; but it then adds that “administration officials said that not every case can be made in federal court and that military tribunals are the proper forum for war crimes.”

What the story does not address — and what is critical to know in order to fairly evaluate the military commission option — is what “war crimes” Hamidullan is alleged to have committed (the story does not describe any), and why the conduct in question would not also constitute an offense under the U.S. criminal code (title 18).

One other (completely speculative) possibility:  The alleged conduct in question might be both a war crime and a title 18 offense, but it could be that some of that critical evidence is either hearsay or voluntary-but-unsworn custodial statements of the accused that would be inadmissible in an article III trial.  Such hearsay and/or unMirandized statements might be admissible in a commission trial in the U.S., depending on whether the courts conclude that Miranda v. Arizona and/or Crawford v. Washington apply in such a proceeding. 

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About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).