United States v. Irek Hamidullin

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4788
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
IREK ILGIZ HAMIDULLIN, a/k/a Irek Ilgiz Khamidullah,
Defendant - Appellant.
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: December 5, 2017 Decided: April 18, 2018
Before WILKINSON, KING, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Floyd wrote the majority opinion in which Judge
Wilkinson joined. Judge Wilkinson wrote a separate concurring opinion. Judge King
wrote a dissenting opinion.
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
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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
3
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
4
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
5
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.
1
The Third Geneva Convention governs the treatment of prisoners of war,
whereas the First Geneva Convention addresses the treatment of wounded forces in the
field, Geneva Convention for the Amelioration of the Condition of the Wounded in
Armies in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31, the Second Geneva
Convention addresses the treatment of wounded members of the armed forces at sea,
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75
U.N.T.S. 85, and the Fourth Geneva Convention addresses the protection of civilians
during wartime, Geneva Convention Relative to the Protection of Civilian Persons in
Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.
6
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.
7
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
2
To the extent they exist, any differences between lawful combatants and POWs
are immaterial to our discussion here. Accordingly, for ease of reference, we use the
terms POW and lawful combatant interchangeably.
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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
3
Although non-binding, the ICRC’s interpretation of the Geneva Conventions has
been treated as persuasive by the Supreme Court. Hamdan, 548 U.S. at 632.
9
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
4
Pursuant to this Court’s request for supplemental briefing, Hamidullin and the
government use the term “jurisdiction” to describe the impact of Army Regulation 190-8
on Article III courts. However, Hamidullin does not argue that the district court lacked
subject matter jurisdiction. Instead, he claims that there are prerequisite steps that the
government ought to have completed prior to his criminal prosecution―in this case an
Army Regulation 190-8 tribunal.
10
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.
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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
12
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
13
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
14
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,
15
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
16
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
17
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
18
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
19
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
5
Hamidullin responds that allowing a military tribunal to determine his status is
consistent with the doctrine of primary jurisdiction. Primary jurisdiction is a prudential
limit which takes advantage of agency expertise by allowing agencies to make
determinations in the first instance when a case implicates issues not within the
“conventional experience of judges.” Envtl. Tech. Council v. Sierra Club, 98 F.3d 774,
789 (4th Cir. 1996). But it is inappropriate to invoke the doctrine of primary jurisdiction
when the Commander-in-Chief has already answered the question Hamidullin seeks to
submit to the Army.
6
The dissent disagrees as to whether the Third Geneva Convention questions
underlying Hamidullin’s POW claim are properly decided by the courts or the executive
in the first instance. Specifically, the dissent asserts that we should “remand this matter
for the limited purpose of the Executive’s consideration and explanation of Hamidullin’s
(Continued)
20
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
POW status,” dissent at 33, and that “unless and until the Executive resolves his POW
claim, Hamidullin should be treated in accordance with the Third Geneva Convention
and Army Regulation 190-8,” id. at 70-71. Notwithstanding that this remand would place
Hamidullin in limbo pending a determination from the executive that neither he nor the
courts have the authority to compel, the dissent unconvincingly attempts to limit the
judiciary’s authority to interpret the Convention to reviewing the executive’s
interpretations. The executive certainly has the authority to clarify its position on the
Convention questions underlying Hamidullin’s claim and to deem him a POW―even
outside of the Convention and Army Regulation 190-8. However, the judiciary likewise
has the authority and the responsibility to interpret those documents, including reviewing
whatever guidance the executive has provided, to resolve Hamidullin’s claim.
21
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 a distance, carries arms openly, or conducts operations in
accordance with the laws and customs of war. See id. art. 4(A)(2). 7
7
On appeal, Hamidullin does not argue that members of the Haqqani Network, a
Taliban-affiliated group of militants that conducts insurgent activity in Afghanistan,
qualify for combatant immunity under the Third Geneva Convention or common law.
Accordingly, we address only the status of captured Taliban fighters.
22
Hamidullin does not identify a clear error in the district court’s factual findings,
and makes no claim that the Taliban satisfy the criteria set forth in Article 4(A)(2).
Instead, he contends he is entitled to POW status under Article 4(A)(3), which covers
“[m]embers of regular armed forces who profess allegiance to a government or an
authority not recognized by the Detaining Power.” Id. art. 4(A)(3). Unlike the criteria
for militia in Article 4(A)(2), Article 4(A)(3) contains no conditions that groups must
fulfill in order to be entitled to POW status; membership in a regular armed force
expressing allegiance to a government not recognized by the detaining power is the only
enumerated requirement. Hamidullin contends that because the Third Geneva
Convention does not expressly incorporate the Article 4(A)(2) criteria into Article
4(A)(3), he is entitled to POW status regardless of whether the Taliban satisfies the
Article 4(A)(2) criteria.
The difficulty with Hamidullin’s argument is that, as discussed above, we hold
that the conflict in Afghanistan was not an international armed conflict. As a result,
irrespective of whether Taliban fighters are entitled to POW status pursuant to Article
4(A)(3), Hamidullin is not entitled to combatant immunity because the protections of
Article 3 (governing non-international conflicts), rather than Article 2 (governing
international conflicts), apply. Article 3 only requires that Hamidullin be tried “by a
regularly constituted court, affording all the judicial guarantees which are recognized as
indispensable by civilized peoples.” Third Geneva Convention, art. 3. The U.S. federal
district courts are “established and organised in accordance with the laws and procedures
already in force” in the United States. See 1 ICRC, Customary International
23
Humanitarian Law 355 (2005); 18 U.S.C. § 3231. Accordingly, the district court did not
err in determining that Hamidullin was properly tried in a regularly constituted American
court.
B.
In the alternative, Hamidullin argues that even if he does not qualify for combatant
immunity under the Third Geneva Convention, he is eligible for common law combatant
immunity as an enemy soldier fighting for a rival sovereign. He frames this defense as a
public authority defense, citing Dow v. Johnson and other post-Civil War jurisprudence.
100 U.S. 158, 165 (1879) (“[F]rom the very nature of war, the tribunals of the enemy
must be without jurisdiction to sit in judgment upon the military conduct of the officers
and soldiers of the invading army.”); see also Coleman v. Tennessee, 97 U.S. 509, 515
(1879) (“Officers and soldiers of the armies of the Union were not subject during the war
to the laws of the enemy, or amenable to his tribunals for offences committed by them.”).
Hamidullin argues that just as defendants who act in objectively reasonable reliance on
the authority of a government official are immune from criminal liability, see United
States v. Fulcher, 250 F.3d 244, 252–53 (4th Cir. 2001), soldiers in armed conflict are
immune from criminal liability when they act by virtue of the direction of a belligerent
party. Typically, however, the public authority defense looks to whether the defendant’s
actions were sanctioned by a U.S. official, as foreign officials do not have authority to
authorize violations of U.S. criminal law. See 1 Charles E. Torcia, Wharton’s Criminal
Law § 41 (15th ed. 2015) (“The fact that a crime committed in time of peace was
24
committed under the directions of the authority of a foreign government is no defense.”).
Nonetheless, Hamidullin asserts that “immunity from ordinary criminal liability applies
without distinction between soldiers who fight on behalf of a State and opposing forces
who assert a rival claim to sovereign authority.” Appellant Br. 35. We disagree.
The Third Geneva Convention is the governing articulation of lawful combatant
status. The principles reflected in the common law decisions cited by Hamidullin were
refined and collected in 20th century efforts to codify the international law of war that
resulted in the Third Geneva Convention. Just as a statute preempts common law when
Congress speaks directly to the question, see e.g., City of Milwaukee v. Illinois &
Michigan, 451 U.S. 304, 315 (1981), a self-executing treaty like the Third Geneva
Convention would similarly preempt common law if the treaty speaks directly to the
question. The Third Geneva Convention explicitly defines the category of individuals
entitled to POW status, and concomitantly, combatant immunity. Third Geneva
Convention, art. 4. As such, the Third Geneva Convention’s definition of lawful and
unlawful combatants is conclusive.
Moreover, Hamidullin’s broad framing of common law combatant immunity
would extend immunity far beyond the Third Geneva Convention, to every person acting
on behalf of an organization that claims sovereignty. For example, it could supply a
claim of immunity to terrorists operating on behalf of the Islamic State, which itself
claims sovereignty. We decline to broaden the scope of combatant immunity beyond the
carefully constructed framework of the Geneva Convention. The Convention represents
an international consensus on the norms of treatment of prisoners, a consensus that would
25
be eviscerated if common law principles were interpreted as superseding. Because
Hamidullin does not qualify for combatant immunity pursuant to the Third Geneva
Convention, he likewise does not qualify for the common law defense of public authority.
V.
Last, Hamidullin challenges his conviction for conspiring and attempting to
destroy a U.S. military aircraft in violation of 18 U.S.C. § 32(a). Section 32(a) states that
“[w]hoever willfully—(1) sets fire to, damages, destroys, disables, or wrecks any aircraft
in the special aircraft jurisdiction of the United States” shall be imprisoned not more than
twenty years. 18 U.S.C. § 32(a). The special jurisdiction of the United States includes
“an aircraft of the armed forces of the United States” in flight. 49 U.S.C. § 46501(2)(B).
Section 32(b) criminalizes the damage or destruction of “civil aircraft registered in a
country other than the United States.” The district court held that the plain language of
§ 32(a) applies to unlawful acts even when committed in a combat zone.
Hamidullin argues that Congress did not intend to apply § 32 to military personnel
whose attacks on aircraft are accepted under the laws of armed conflict. To support this
contention, he relies on a memorandum from the Office of Legal Counsel which analyzed
§ 32(b) and reasoned that § 32(b) should not be construed to “have the surprising and
almost certainly unintended effect of criminalizing actions by military personnel that are
lawful under international law.” United States Assistance to Countries that Shoot Down
Civil Aircraft Involved in Drug Trafficking, 18 Op. O.L.C. 148, 164 (1994).
26
We conclude that Hamidullin’s argument fails because even Hamidullin’s
preferred construction of congressional intent does not preclude application of the statute
in this case. He claims that Congress did not intend § 32 to apply to the actions of
“military force” that are lawful under international law. However, as described above,
Hamidullin was not a lawful combatant and his conduct was not lawful under the Third
Geneva Convention. Hence, the district court did not err in determining that the plain
language of § 32(a) applied to Hamidullin’s conduct. Here, Hamidullin was convicted of
attempting to fire anti-aircraft weapons at U.S. military helicopters. Given Hamidullin’s
status as an unlawful combatant, that attack falls under the plain language of 18 U.S.C. §
32(a).
* * *
We do not take our duty to respect and comply with the tenets of international law
lightly. This is especially true when, as here, our interpretation of that responsibility has
the potential to seriously impact the treatment of persons captured during armed conflicts.
Nonetheless, for the foregoing reasons, it is clear to us that neither the Third Geneva
Convention nor U.S. Army regulations grant Hamidullin immunity from criminal
prosecution in an Article III court. Moreover, the text of § 32(a) clearly applies to these
facts. Accordingly, the judgment of the district court is
AFFIRMED.
27
WILKINSON, Circuit Judge, concurring:
I am pleased to concur in Judge Floyd’s fine opinion. I write separately only to
underscore both the folly and the hazard of Hamidullin’s jurisdictional challenge.
Hamidullin urges us to hold that a single Army regulation (AR 190-8) stripped the district
court in this case of jurisdiction to conduct in the first instance his criminal trial. But an
insurmountable series of obstacles stands in the way of any such ruling. See Maj. Op. at
17-20. A military regulation cannot overcome: an act of Congress granting the district
courts jurisdiction over “all offenses against the laws of the United States,” 18 U.S.C. §
3231; the Commander-in-Chief’s declaration that “Taliban detainees are unlawful
combatants and, therefore, do not qualify as prisoners of war” under the Third Geneva
Convention, see White House Memorandum, Humane Treatment of Taliban and al Qaeda
Detainees 2 (Feb. 7, 2002); and the uniform legal framework applied by our allies—and
heretofore, our own government—whereby Taliban fighters may be prosecuted as
unlawful combatants in civilian courts. 1
1
Our friend in dissent longs for “a clear statement from the Executive Branch” on
whether Taliban and Haqqani fighters should be accorded POW status. Dissent at 32. We
have many. The President stated very clearly in 2002 that the answer is no. And the
government’s briefing in this case states very clearly that its position remains the same.
See Br. of U.S. at 27-41; Second Supp. Br. of U.S. at 2. If the dissent really wishes a clear
statement, it has only to look underfoot. The clearest statement imaginable that Taliban
and Haqqani fighters should not be accorded POW status is the prosecution of
Hamidullin that began in 2014 and the conviction of Hamidullin defended by the
government on appeal. Actions may or may not speak louder than words. But here we are
fortunate to have both.
The Executive Branch is free, of course, to change its position at any time. But it
has chosen not to do so. The President’s declaration that the Taliban are unlawful enemy
(Continued)
28
Any conclusion to the contrary would defy logic. And it would turn on its head
“the American constitutional tradition” of civilian control over the military. Greer v.
Spock, 424 U.S. 828, 839 (1976). The Supreme Court has emphasized that federal courts
have a “virtually unflagging obligation” to exercise the jurisdiction that Congress has
given them. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800,
817 (1976). Allowing a military status determination under AR 190-8 to override the
determination of the President and to both halt and overturn criminal prosecutions
brought under duly enacted laws of Congress would fly in the face of our Constitution’s
guarantee that military judgments will be “subject always to civilian control of the
Legislative and Executive Branches.” Gilligan v. Morgan, 413 U.S. 1, 10 (1973).
Giving AR 190-8 precedence in such a way is not only incorrect as a matter of
law; it would also have far-reaching consequences. The President’s status declaration was
combatants has never been rescinded, superseded, or modified. In fact, its relevance
could not have been diminished in 2009, the year Hamidullin was captured attacking U.S.
aircraft. For by that time, the Taliban had been overthrown and the conflict had become a
non-international armed conflict. And our allies have recognized that fact and acted
accordingly. The dissent’s appetite for an additional “clear statement” will do nothing but
sow confusion in a delicate matter of international relations and prolong this case
indefinitely. Perhaps the dissent would heed an additional statement if it received one
under its indefinitely elongated timetable. Or perhaps it would ignore it as it has every
clear statement the Executive Branch has already offered.
Finally, the dissent’s proffer of the truism that the government is not always right
adds absolutely nothing to the question in this case of whether the Taliban should be
accorded POW status. All the smoke and mirrors fail to change in even minor particular
the consistent view of all post-9/11 administrations, and of America’s allies in the Afghan
fight, that the Taliban collectively are unlawful enemy combatants and not entitled to the
broad jurisdictional immunity from Article III courts that Hamidullin now claims.
29
a collective, not an individual, one. Empowering different panels of military officers to
determine case by case whether Taliban fighters are entitled to POW status would throw
the entire concept of a collective judgment overboard and would result in the disparate
treatment of similarly situated detainees. And it would hamstring our country in its ability
to approach armed conflicts in a unified fashion. It would also undermine the consistent
practice of both the United States and its allies to uniformly treat Taliban fighters as
insurgents who lack any claim to the Third Geneva Convention’s combatant immunity
defense. But perhaps most alarmingly, allowing status determinations under AR 190-8 to
control here would threaten to elevate every band of terrorists around the world to near
nation-state status and, in so doing, to extend the protections of the Third Geneva
Convention to those who both regularly and flagrantly violate its dictates.
For years, the aim of Taliban fighters was to get into the civilian courts. When
those courts proved also capable of imposing just punishment, Taliban defendants sought
to discredit them too. As Judge Floyd’s cogent opinion demonstrates, this whole exercise
is a shell game designed to play one part of American governance against another. An
affirmance here respects the proper roles of our President, our Congress, our courts, our
military, and the international alliance against the worldwide scourge of terrorism in
which our nation plays such a crucial part.
30
KING, Circuit Judge, dissenting:
Whether Irek Hamidullin qualifies as a prisoner of war (a “POW”) under the Third
Geneva Convention implicates two difficult questions with great potential repercussions
for international relations and the safety and security of our military personnel abroad:
(1) whether the war in Afghanistan against the Taliban was an international armed
conflict within the meaning of the Third Convention’s Article 2 when Hamidullin was
captured by the U.S. Army in late 2009; and (2) whether Hamidullin satisfies one of the
categories of POWs articulated in the Convention’s Article 4. Hamidullin and the
Government mutually left those questions to be answered by the district court — simply
presenting evidence and argument in support of their respective theories — without
asserting that either issue had already been conclusively determined by the Executive
Branch and without contesting the district court’s authority to decide the issues in the first
instance. Thereafter, the district court opted to avoid the Article 2 question (recognizing
that it “may elude a definitive answer”), proceeded to its own Article 4 analysis, and
concluded that Hamidullin is not eligible for POW status. See United States v.
Hamidullin, 114 F. Supp. 3d 365, 387 (E.D. Va. 2015).
Only later, after we raised concerns in this appeal about whether the Third
Convention questions are initially for the Executive or the Judiciary, did the parties
change stances on the district court’s power to dispose of Hamidullin’s POW claim.
Hamidullin has since been firm that the Article 2 international armed conflict question is
for the courts, but that, regardless of the status of the war, he is entitled to have a military
tribunal assess his Article 4 eligibility for POW status pursuant to Army Regulation 190-
31
8. Meanwhile, the Government has wavered between arguing that the Executive Branch
has rendered unassailable determinations on the relevant Third Convention issues and
contending that those issues should be decided by the courts, albeit with some deference
to the Executive’s views.
Indeed, the Government has asserted both that the Executive’s “determinations
constitute a classic exercise of the President’s war powers and his authority over foreign
affairs,” see Suppl. Br. of Appellee 13, and that “the judicial branch must render its own
decision on the availability of immunity to criminal charges here,” see Second Suppl. Br.
of Appellee 14. With respect to each premise, the Government invokes a statement
issued by President George W. Bush on February 7, 2002 (the “2002 Presidential
Statement”), which deemed the war against the Taliban to be an Article 2 international
armed conflict but purported to categorically exclude Taliban fighters from POW status
under Article 4. According to the Government, the Executive explicitly — or maybe just
implicitly — abandoned the 2002 Presidential Statement’s Article 2 judgment by 2009.
The Government insists, however, that the Executive continues to adhere to the
Statement’s sweeping Article 4 ruling — notwithstanding widespread condemnation of
that ruling, including criticism from the Supreme Court and the Government’s own
expert witness.
In my view, these circumstances demand a clear statement from the Executive
Branch on whether Hamidullin should be accorded POW status and, if not, an
explanation as to why not. Contrary to the Government, the Executive has not already
rendered Article 2 and Article 4 determinations to which we can or should defer. Yet I
32
agree with the Government insofar as it contends the Third Convention questions are
initially for the Executive, not the courts. Consequently, I would remand this matter for
the limited purpose of the Executive’s consideration and explanation of Hamidullin’s
POW status. Such a remand would not necessarily include the military tribunal sought
by Hamidullin. Perhaps instead, the President would pronounce that the war against the
Taliban was not an Article 2 international armed conflict at the time of Hamidullin’s
capture in late 2009. Or perhaps the President would endorse the 2002 Presidential
Statement’s categorical Article 4 ruling and proclaim its continuing applicability. Or
perhaps the President would elect to bestow POW protections upon Hamidullin,
regardless of Article 2 and Article 4, in an effort to obtain reciprocal treatment of U.S.
forces. Whatever the Executive would decide, we would have the opportunity for an
informed and appropriate review upon this matter’s return to our Court.
My distinguished colleagues, however, reckon that the Third Convention
questions are a matter of treaty interpretation primarily for the Judiciary, not the
Executive Branch. See ante at 17-18 (explaining that “there can be no question that it is
the role of the judiciary, not the executive, to interpret treaties,” though “the executive
may engage in the interpretation of treaties in [certain circumstances and thereby] inform
the judiciary’s own interpretations”). Like the district court, my friends resolve the
conflicting evidence and authorities to confidently declare that Hamidullin cannot be a
POW. Nonetheless, the panel majority takes a tack different from the district court’s.
That is, the majority makes an original determination that the war against the Taliban was
no longer an Article 2 international armed conflict by 2009. See id. at 12 (“We conclude,
33
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 [Third
Convention] requirement that POW status be determined by a competent tribunal does
not apply.”). Additionally, the majority rejects Hamidullin’s argument that, regardless of
the status of the war, Regulation 190-8 entitles him to have his Article 4 eligibility for
POW status determined by a military tribunal. According to the majority, agreeing with
Hamidullin on that point would strip the federal courts of the jurisdiction to interpret
treaties, as well as the jurisdiction to adjudicate crimes, and would flout the 2002
Presidential Statement’s Article 4 ruling. See id. at 19-20 (“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
. . . . We cannot allow Hamidullin’s interpretation of Army Regulation 190-8 to upend
our system of governance.”).
With all respect for my good friends, their analysis is unsound and their forecast of
constitutional chaos is unfounded. To truly respect the separation of powers, we could
and should remand this matter for the Executive Branch’s determination of the Third
Convention issues, not resolve those questions ourselves. Unfortunately, however, the
panel majority has rejected this prudent and reasonable course, compelling me to write
separately in dissent.
34
I.
I begin with a discussion of the Geneva Conventions. Because the United States is
a High Contracting Party to those Conventions, they are among “the supreme Law of the
Land,” pursuant to the Supremacy Clause of our Constitution. See U.S. Const. art. VI, cl.
2 (“This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of
the United States, shall be the supreme Law of the Land . . . .”). As the Supreme Court
has recognized, the Geneva Conventions are an integral “part of the law of war.” See
Hamdan v. Rumsfeld, 548 U.S. 557, 628 (2006).
A.
In this appeal, we are chiefly concerned with the Third Geneva Convention, which
addresses the treatment of POWs. See Geneva Convention Relative to the Treatment of
Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135. Under its Article 2,
the Third Convention applies “to all cases of declared war or of any other armed conflict
which may arise between two or more of the High Contracting Parties,” as well as “to all
cases of partial or total occupation of the territory of a High Contracting Party.”
In an Article 2 international armed conflict, persons who have fallen into the
power of the enemy qualify as POWs under Article 4 if they are within one of six
categories. For example, the first category of POWs encompasses “[m]embers of the
armed forces of a Party to the conflict, as well as members of militias or volunteer corps
forming part of such armed forces.” See Third Geneva Convention art. 4(A)(1). The
second category — enumerated in Article 4(A)(2) — includes the following:
35
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.
The third category of POWs is defined in Article 4(A)(3) as “[m]embers of regular armed
forces who profess allegiance to a government or an authority not recognized by the
Detaining Power.” None of the other three categories is relevant here.
Pursuant to Article 5 of the Third Convention, POW status endures “from the time
[the persons] fall into the power of the enemy . . . until their final release and
repatriation.” Article 5 also provides:
Should any doubt arise as to whether persons having committed a
belligerent act and having fallen into the hands of the enemy belong to any
of the categories enumerated in Article 4, such persons shall enjoy the
protection of the present Convention until such time as their status has been
determined by a competent tribunal.
See Third Geneva Convention art. 5. A significant protection conferred on POWs is
immunity from criminal prosecution in the civilian and military courts for acts that do not
violate the law of war. See, e.g., id. arts. 85, 87, 99.
36
When there is an “armed conflict not of an international character,” Article 3 of
the Third Convention affords some protections, but only to those “[p]ersons taking no
active part in the hostilities,” or the wounded or sick. Accordingly, in an Article 3 non-
international armed conflict, POW status is not available.
B.
With regard to the Third Convention’s execution, Article 128 requires the High
Contracting Parties to communicate to one another “the laws and regulations which they
may adopt to ensure the application [of the Convention].” In the United States, the
relevant requirements of the Third Convention have been incorporated into an Executive
Branch regulation adopted by the U.S. Army, as well as the Navy, the Air Force, and the
Marine Corps. That multi-service regulation is Army Regulation 190-8. Additionally,
the Army relies on Army Field Manual 27-10, aptly entitled The Law of Land Warfare.
As explained in its “Purpose” section, Army Regulation 190-8 “implements
international law, both customary and codified, relating to,” among others, enemy
prisoners of war and other detainees. See Army Reg. 190-8 at § 1-1(a) to (b). Moreover,
Regulation 190-8 explicitly identifies the Third Convention as one of the “principal
treaties relevant to this regulation.” Id. § 1-1(b)(3).
Army Regulation 190-8 does not specify who determines whether a conflict is an
international armed conflict under Article 2 of the Third Convention or a non-
international armed conflict under the Convention’s Article 3. In its “General protection
policy” section, however, Regulation 190-8 provides that “[a]ll persons taken into
custody by U.S. forces will be provided with the protections of the [Third Convention]
37
until some other legal status is determined by competent authority.” See Army Reg. 190-
8 at § 1-5(a)(2).
Elsewhere, in its “Tribunals” section, Army Regulation 190-8 recognizes that a
person not undoubtedly excluded from POW status under Article 4 of the Third
Convention is entitled to be treated as a POW pending a determination of his status by “a
competent tribunal” under the Convention’s Article 5. That is, Regulation 190-8
specifies:
In accordance with Article 5 . . . , if any doubt arises as to whether a person,
having committed a belligerent act and been taken into custody by the US
Armed Forces, belongs to any of the categories enumerated in Article 4
. . . , such persons shall enjoy the protection of the [Third] Convention until
such time as their status has been determined by a competent tribunal.
See Army Reg. 190-8 at § 1-6(a). Furthermore, Regulation 190-8 applies the Article 5
competent tribunal requirement to certain persons simply claiming POW status:
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).
The “Tribunals” section of Army Regulation 190-8 spells out in detail the
composition of an Article 5 competent tribunal. It provides that the tribunal be
comprised of three commissioned officers, at least one of whom must be of a field grade
(a Major, Lieutenant Colonel, or Colonel), and that the senior ranking officer will serve
as President of the tribunal. See Army Reg. 190-8 at § 1-6(c). Regulation 190-8 also
requires another non-voting officer — preferably an officer in the Judge Advocate
38
General Corps — to serve as recorder during the tribunal proceedings. Id. The
Regulation specifies that the “convening authority shall be a commander exercising
general courts-martial convening authority.” Id. § 1-6(d). It also covers numerous
procedural matters, such as the burden of proof (preponderance of the evidence) and the
process of determination (closed session by a majority of the voting members of the
tribunal). Id. § 1-6(e)(9). 1
Consistent with Army Regulation 190-8, the Army’s Field Manual on The Law of
Land Warfare provides that, “[s]hould any doubt arise as to whether persons, having
committed a belligerent act and having fallen into the hands of the enemy, belong to any
of the categories enumerated in Article 4 . . . , such persons shall enjoy the protection of
the [Third] Convention until such time as their status has been determined by a competent
tribunal.” See Field Manual 27-10 at 30 (citing Third Geneva Convention art. 5). The
Field Manual interprets Article 4 to apply “to any person not appearing to be entitled to
prisoner-of-war status who has committed a belligerent act or has engaged in hostile
1
Among other procedural matters addressed in Army Regulation 190-8 are the
following: listing the order in which the members of the tribunal and the recorder are
sworn; requiring that a written record be made of the proceedings; mandating that the
proceedings be open, save for deliberation, voting, or other matters that could
compromise security; advising the captive person of his rights at the outset of the
proceedings; providing the captive person with access to all open sessions of the
proceedings and, if needed, an interpreter; allowing the captive person to call and
question reasonably available witnesses, or to submit written statements to be considered
as evidence; affording the captive person the right to testify or otherwise address the
tribunal; protecting the captive person from being compelled to testify; requiring a
written report of the tribunal decision; and identifying possible determinations, including
that the captive person is a POW or an innocent civilian. See Reg. 190-8 at § 1-6(e)(1)-
(8), (10).
39
activities in aid of the armed forces and who asserts that he is entitled to treatment as a
prisoner of war or concerning whom any other doubt of a like nature exists.” Id. The
Manual describes a “competent tribunal” as “a board of not less than three officers acting
according to such procedure as may be prescribed for tribunals of this nature.” Id.
II.
With that background and legal framework in mind, I turn to a more
comprehensive account of the tortuous proceedings leading to today’s faulty decision of
the panel majority.
A.
Hamidullin, a Russian national fighting on behalf of the Taliban and its affiliate
the Haqqani Network, was the lone enemy survivor of an attack against U.S. and Afghan
forces at Camp Leyza in eastern Afghanistan in November 2009. After the U.S. Army
captured Hamidullin, he was indicted in the Eastern District of Virginia on criminal
charges arising from the attack. Significantly, nothing in the record explains how or why
Hamidullin was transferred from military to civilian custody, or how he ended up in
Virginia.
The initial indictment against Hamidullin was returned by the grand jury in
Richmond in October 2014 and twice superseded, most recently in April 2015 by the
operative indictment in Hamidullin’s trial (the “Indictment”). The Indictment charged
fifteen offenses, all under Title 18 of the United States Code: conspiracy to provide
material support to terrorists (§ 2339A); providing material support to terrorists
40
(§ 2339A); conspiracy to destroy an aircraft of the armed forces of the United States
(§ 32); attempting to destroy an aircraft of the armed forces of the United States (§ 32);
conspiracy to kill an officer or employee of the United States or a person assisting such
officer or employee (§ 1117); two counts of attempting to kill an officer or employee of
the United States or a person assisting such officer or employee (§ 1114); conspiracy to
murder a national of the United States (§ 2332(b)); two counts of attempting to murder a
national of the United States (§ 2332(b)); two counts of engaging in physical violence
with intent to cause serious bodily injury to a national of the United States (§ 2332(c));
conspiracy to use a weapon of mass destruction (§ 2332a); possession of a firearm in
connection with a crime of violence (§ 924(c)); and conspiracy to possess a firearm in
connection with a crime of violence (§ 924(o)). Several of the charges included
allegations under 18 U.S.C. § 2 of aiding and abetting.
Hamidullin promptly moved in the district court for dismissal of the Indictment,
invoking Rule 12(b)(1) of the Federal Rules of Criminal Procedure. Hamidullin sought
dismissal of the criminal charges on multiple grounds, including that, pursuant to the
Third Geneva Convention, he is a POW who did not violate the law of war and thus
cannot be prosecuted in a civilian or military court. Hamidullin has decried his
prosecution for being “premised on the radical conceit that in Afghanistan, only one side
of an ongoing war is authorized to shoot.” See Opening Br. of Appellant 14. He has
proffered that he should instead “be detained as an enemy combatant for the duration of
hostilities in Afghanistan.” Id. at 13.
41
B.
As previously explained, the Third Geneva Convention issues relevant to
Hamidullin’s POW claim are whether the war in Afghanistan against the Taliban was an
international armed conflict within the meaning of the Third Convention’s Article 2 at the
time of Hamidullin’s capture in late 2009, and whether Hamidullin falls within one of the
six categories of POWs articulated in the Convention’s Article 4. Those disputed issues
were presented by the parties to the district court for initial consideration, rather than first
being determined by the Executive Branch.
1.
In June 2015, the district court conducted a hearing on Hamidullin’s motion to
dismiss and heard evidence from the parties’ expert witnesses on the Third Convention
issues, generating hundreds of pages of transcribed testimony and a multitude of exhibits.
The witnesses explained in some detail the background of the Taliban and the Haqqani
Network with which the Taliban was affiliated. The witnesses also explained the status
of the government of Afghanistan from the September 11, 2001 terrorist attacks on the
United States until Hamidullin’s capture in 2009. That is, in the view of the United
States and most other countries, the Taliban constituted the de facto government of
Afghanistan until it was ousted from power in late 2001. Only three countries (Pakistan,
the United Arab Emirates, and Saudi Arabia) had ever given diplomatic recognition to the
Taliban as Afghanistan’s de jure government, and each withdrew its recognition shortly
after the 2001 terrorist attacks. The Taliban was replaced by the de jure government of
Hamid Karzai, which began as an interim government in late 2001 and then was elected
42
in 2004. Over the years, the Karzai government has been accorded diplomatic
recognition by the United States and many other countries. The United States and allies
have continued to assist Afghan forces in fighting the Taliban.
The evidence admitted at the hearing and addressed by expert witnesses included
the 2002 Presidential Statement — a statement that followed the Taliban’s ouster from
power in Afghanistan, came during the Karzai government’s interim rule, and preceded
Hamidullin’s capture by more than seven years. By that statement, the President declared
“that the provisions of [the Third] Geneva [Convention] will apply to our present conflict
with the Taliban.” See 2002 Presidential Statement at 1. In other words, the President
determined that, at least as of early 2002, the war against the Taliban constituted an
Article 2 international armed conflict. The 2002 Presidential Statement advised,
however, that Taliban detainees are categorically excluded from POW status under
Article 4. See id. at 2 (“I determine that the Taliban detainees are unlawful combatants
and, therefore, do not qualify as prisoners of war under Article 4 of [the Third] Geneva
[Convention].”).
During the hearing, the expert witnesses also addressed various materials invoked
by the parties in support of their respective positions. The Government submitted, for
example, a 2007 report of the International Committee of the Red Cross (the “ICRC”)
deeming the ongoing hostilities in Afghanistan to be an Article 3 non-international armed
conflict — “albeit with an international component in the form of a foreign military
presence on one of the sides” — “because it is being waged with the consent and support
of the respective domestic authorities and does not involve two opposed States.” See
43
Int’l Comm. of the Red Cross, International Humanitarian Law and the Challenges of
Contemporary Armed Conflicts, 89 Int’l Rev. of the Red Cross, 719, 725 (2007).
In support of the argument that the war against the Taliban remains an Article 2
international armed conflict because it began as one, Hamidullin presented, inter alia, a
1995 submission made by the U.S. Government itself in a war crimes prosecution in the
United Nations International Criminal Tribunal for the former Yugoslavia. There, the
Government asserted that “it is artificial and improper to attempt to divide [a conflict]
into isolated segments, either geographically or chronologically, in an attempt to exclude
the application of [the Third Convention].” See Submission of the Government of the
United States of America Concerning Certain Arguments Made by Counsel for the
Accused at 28, The Prosecutor of the Tribunal v. Dusko Tadic, No. IT-94-1 (ICTY July
17, 1995).
The expert witnesses at the district court’s June 2015 hearing disagreed on the
applicability of the Third Convention to Hamidullin and other Taliban and Haqqani
fighters. One of the Government’s witnesses testified that — although the United States
had initially characterized the war against the Taliban as an international armed conflict
under the Convention’s Article 2 — the war became an Article 3 non-international armed
conflict after the Karzai government was elected in 2004. That witness acknowledged
that the 2002 Presidential Statement deeming the war to be an Article 2 international
44
armed conflict had “never been officially changed.” See J.A. 368. 2 The witness also
recognized that there was precedent, arising from the Tadic war crimes prosecution in the
mid-1990s, for the proposition that the United States should continue to treat the war as
an international armed conflict because of its initial characterization. Id. at 376. In
addition, the witness observed that the United States’ longstanding “practice has been to
follow the rules for an international armed conflict without making a legal determination
as to whether they apply,” based on “a hope for reciprocity if our personnel fall into
enemy hands.” Id. at 326. Nevertheless, the witness insisted that there “was a sea change
in how some of these things were looked at” following the September 11, 2001 terrorist
attacks. Id. at 376. Consistent with the 2007 ICRC report, the witness concluded that the
war against the Taliban had become an Article 3 non-international armed conflict and
thus that the Convention’s Article 4 protections for POWs were not available in 2009 to
forces of the Taliban and the Haqqani Network.
The same witness further opined that, even assuming the war against the Taliban
qualified as an international armed conflict in 2009, no Taliban and Haqqani fighters can
satisfy Article 4 criteria for POWs. The witness premised that conclusion on an
independent analysis, without relying on the 2002 Presidential Statement’s Article 4
determination. Importantly, the witness acknowledged that the 2002 Presidential
Statement’s Article 4 determination was “flawed” and “politically based rather than
2
Citations herein to “J.A. ___” refer to the contents of the Joint Appendix filed by
the parties in this appeal.
45
based on law,” in that it did not take all of the Article 4 factors into account. See J.A.
400-01 (confirming his view that “President Bush erred in accepting the advice of
individuals who lacked military experience and . . . possessed skepticism, if not [disdain,]
for the law of war, over [the advice] of individuals with military combat and substantial
law of war expertise and experience” (internal quotation marks omitted)).
By contrast, Hamidullin’s expert witness testified that — because the war against
the Taliban began as an Article 2 international armed conflict — it remained so through
2009 and beyond. That witness also rejected the notion that the war may be characterized
as an Article 3 non-international armed conflict, relying on news reports that the United
States had attacked Taliban targets outside Afghanistan (in Pakistan), and that Pakistan
and Iran have supplied the Taliban with troops, weapons, and other materials. See J.A.
440 (acknowledging that “[s]ome of this may be classified” and thus verifiable only by
government officials and others with appropriate security clearances). As for the Article
4 issue, the witness maintained that Taliban and Haqqani fighters are eligible for POW
status under Article 4(A)(1) and (A)(3), as members of the armed forces of a
government-in-exile.
2.
In July 2015, following the evidentiary hearing, the district court denied the
motion to dismiss the Indictment, ruling, inter alia, that Hamidullin is not a POW. In so
doing, the court explained that the complexity of its analysis was compounded by a
dearth of judicial authority applying the law of war to the conflict in Afghanistan. As the
court observed, “[w]hile the legal landscape is filled with respectable military and
46
scholarly treatises, along with a host of public policy position papers, few courts have had
occasion to venture into this terrain.” See Hamidullin, 114 F. Supp. 3d at 367-68. The
court characterized the central issue with respect to Hamidullin’s POW claim as “whether
the Taliban [and its Haqqani allies] are lawful combatants entitled to prisoner of war
treatment under the [Third] Geneva Convention, or a band of insurgent outlaws to be
dealt with as criminals.” Id. at 387. To answer that inquiry, the court related that it was
not necessary to “determine whether the conflict in Afghanistan is international in nature
as contemplated by Article 2.” Id. Indeed, the court observed not only that the parties’
expert witnesses disagreed on the Article 2 issue, but that the issue “may elude a
definitive answer.” Id. To “surmount[] this hurdle,” the court simply assumed that the
war against the Taliban was an Article 2 international armed conflict at the time of
Hamidullin’s capture and proceeded to its own Article 4 analysis. Id.
Pursuant to its Article 4 analysis, the district court concluded that Hamidullin is
not eligible for POW status. See Hamidullin, 114 F. Supp. 3d at 387-88 (summarily
ruling that Taliban and Haqqani fighters do not satisfy Article 4(A)(1) and (A)(3), and
further ruling, with explanation, that such fighters also fail Article 4(A)(2)). In rendering
its analysis, the court did not invoke or evidently accord any deference to the 2002
Presidential Statement’s Article 4 determination. Furthermore, the court did not
acknowledge either the Third Convention’s requirement for Article 5 proceedings before
a “competent tribunal,” or Army Regulation 190-8’s directive that Article 5 proceedings
in the United States are to be conducted by a tribunal of three commissioned military
officers. In the circumstances, the court also did not address whether or how a U.S. court
47
could be a “competent tribunal” authorized to conduct Article 5 proceedings and decide a
POW claim. 3
C.
By their opening appellate briefs, the parties disputed the correctness of the district
court’s POW determination — but they did not question the court’s authority to decide
Hamidullin’s POW status in the first instance.
Notably, the Government argued that the 2002 Presidential Statement’s categorical
exclusion of Taliban fighters from POW status under Article 4 “is entitled to a degree of
deference as a reasonable interpretation and application of the [Third Geneva
Convention] to the Taliban by the Commander in Chief.” See Opening Br. of Appellee
34. The Government specified, however, that it did “not argue that the President’s
determination is dispositive of [Hamidullin’s POW claim].” Id. As the Government
explained, that is why it “submitted its evidence to the district court for determination and
to this Court for appellate review.” Id. Concurrently, the Government urged us to reach
the Article 2 issue and resolve it based on authorities invoked in the district court,
including the ICRC and its 2007 report. Id. at 28 (contending that, “[a]t the time of
3
Other aspects of the district court’s Article 4 analysis also bear mentioning. The
court treated Hamidullin’s POW claim as an affirmative defense that Hamidullin bore the
burden of proving. Rather than considering the characteristics of Hamidullin
individually, the court focused on Taliban and Haqqani fighters generally. In any event,
the court had before it only the sparse facts alleged in the Complaint and the “little [that]
was said [during the evidentiary hearing] about [Hamidullin] as an individual military
actor.” See Hamidullin, 114 F. Supp. at 386. When additional relevant evidence was
adduced at trial, the court did not revisit Hamidullin’s POW claim, including the issue of
whether Hamidullin qualifies as a POW under Article 4(A)(2).
48
Hamidullin’s attack, there was no international conflict between the United States and
Afghanistan”). The Government did not then assert that the Article 2 issue had already
been decided by the Executive Branch.
During the initial oral argument in this appeal, in December 2016, we questioned
the parties about the district court’s authority to decide Hamidullin’s POW status in the
first instance. Soon thereafter, we received from the Government what it purported was a
definitive Executive Branch statement on the nature of the war against the Taliban: a
December 2016 report signed by President Barack Obama and entitled Report on the
Legal and Policy Frameworks Guiding the United States’ Use of Military Force and
Related National Security Operations (the “2016 Presidential Report”). The 2016
Presidential Report indicated that the war in Afghanistan against the Taliban was an
Article 3 non-international armed conflict as of late 2016, without explaining when the
war transformed from an Article 2 international armed conflict or specifying the status of
the war at the time of Hamidullin’s capture in late 2009. For example, the Report stated
that “the United States is currently engaged in hostilities against only non-State actors,”
i.e., non-international armed conflicts. See 2016 Report at 19. That statement did not
concern the nature of the war against the Taliban in late 2009, the time relevant to
Hamidullin’s POW claim. Elsewhere, the Report referred to non-international armed
conflicts “such as the hostilities authorized by the 2001 [Authorization for Use of
Military Force (the ‘AUMF’)].” Id. at 32. As the Supreme Court explained in Hamdan
v. Rumsfeld, the AUMF authorized both the war against al Qaeda (a non-international
armed conflict) and the war against the Taliban (at least initially an international armed
49
conflict). See 548 U.S. 557, 568 (2006). Thus, the 2016 Presidential Report’s reference
to non-international armed conflicts authorized by the AUMF did not specify the nature
of the war against the Taliban in late 2009.
Additionally, the 2016 Presidential Report advised that “the United States often
applies policies that are more restrictive than what would be required as a matter of law,”
leaving open the possibility that Hamidullin could be accorded POW status even if the
Executive considers the war against the Taliban to be a non-international armed conflict.
See 2016 Report at 19. Nonetheless, when it submitted the Report to this Court, the
Government asserted that the Report “reflects the United States’ view that the conflict in
Afghanistan is a non-international armed conflict,” and “[t]hat conclusion alone” renders
POW status unavailable to Hamidullin. See Letter under Fed. R. App. P. 28(j) at 1,
United States v. Hamidullin, No. 15-4788 (4th Cir. Dec. 14, 2016), ECF No. 42. The
Government also repeated arguments aimed at convincing us to affirm the district court’s
determination that Hamidullin does not qualify as a POW under Article 4.
In response, Hamidullin confirmed his view that the characterization of a war as
an Article 2 international armed conflict or an Article 3 non-international armed conflict
“is for the Court, not the Executive.” See Response to Letter under Fed. R. App. P. 28(j)
at 1, United States v. Hamidullin, No. 15-4788 (4th Cir. Dec. 15, 2016), ECF No. 43. For
that proposition, Hamidullin relied on the Supreme Court’s decision in Hamdan, 548 U.S.
at 629-31 (rejecting the 2002 Presidential Statement’s conclusion that the war against al
Qaeda was neither an Article 2 international armed conflict nor an Article 3 non-
international armed conflict). Hamidullin’s response also invoked Hamdi v. Rumsfeld,
50
542 U.S. 507, 550 (2004) (Souter, J., concurring in part, dissenting in part, and
concurring in the judgment), to contest the President’s ability to categorically exclude
detainees from POW protections under Article 4, as the 2002 Presidential Statement had
endeavored to do.
Several months later, in June 2017, we directed the parties to file supplemental
briefs addressing the issue of the district court’s “jurisdiction to decide, in the first
instance, whether Hamidullin qualifies as a prisoner of war under the Third Geneva
Convention.” See Order at 1, United States v. Hamidullin, No. 15-4788 (4th Cir. June 23,
2017), ECF No. 48. In so doing, we advised that “[t]he briefs should discuss the effect of
Army Regulation 190-8 on the court’s jurisdiction.” Id. The parties simultaneously filed
supplemental opening and response briefs.
Strikingly, the Government’s supplemental briefs contended that the Third
Convention determinations relevant to Hamidullin’s POW claim “are properly made by
the Commander-in-Chief or other higher authorities in the Executive Branch” — not a
military tribunal or, by implication, a federal court. See Suppl. Br. of Appellee 7; see
also id. at 8 (reiterating that “overarching questions, such as the appropriate classification
of the conflict, . . . properly belong to higher authorities within the Executive Branch”).
In addition to asserting that the Third Convention issues were for the Executive to decide,
the Government declared that the Executive had in fact made the relevant determinations
herein, i.e., that the war against the Taliban was an Article 3 non-international armed
conflict by late 2009 (apparently based on the 2016 Presidential Report), and that, in any
51
event, Taliban fighters are categorically excluded from POW status under Article 4
(based on the 2002 Presidential Statement).
Of course, the Government had previously treated the district court as the
appropriate first adjudicator of the Third Convention issues and had conceded that the
2002 Presidential Statement was not dispositive of Hamidullin’s POW claim. Without
acknowledging or explaining its significant change of position, the Government now
insisted that “Hamidullin’s legal status has been determined by a ‘competent authority’
within the meaning of [Army Regulation 190-8] because the President — the highest
‘competent authority’ on the subject — conclusively determined in 2002 that Taliban
detainees such as Hamidullin do not qualify for POW status.” See Suppl. Br. of Appellee
2. From there, the Government defended the district court’s disposition of Hamidullin’s
POW claim as consistent with Regulation 190-8 and the Executive’s pronouncements
because there is no doubt that Hamidullin is ineligible to be deemed a POW. The
Government also cautioned us, in emphatic terms, that
[t]he Executive’s determinations regarding the character of the conflict, the
status of the Taliban, and the proper application of the [Third Convention]
and [Regulation] 190-8 are entitled to great deference by this Court. These
determinations constitute a classic exercise of the President’s war powers
and his authority over foreign affairs that also implicates his exclusive
authority to determine whether a foreign government merits recognition.
Id. at 13.
In his supplemental briefs, Hamidullin for the first time argued that Army
Regulation 190-8 requires that a military tribunal determine his POW status, and that
such a determination is a prerequisite to his criminal prosecution. According to
52
Hamidullin, “[b]ecause the Executive Branch failed to follow its own regulation and the
[Third Convention] in this case, [he] retains status as a prisoner of war and is immune
from ordinary criminal liability,” thereby necessitating that we “vacate his convictions
and remand with the direction that he be transferred to the custody of the U.S. military
and afforded treatment in accordance with Army Regulation 190-8.” See Suppl. Br. of
Appellant 14-15. Hamidullin stood by his position that the war against the Taliban
remains an Article 2 international armed conflict, but contended that the status of the war
is irrelevant, in that “[n]othing in [Regulation 190-8’s] language limits [its] application
based on the type of conflict in which a person is seized.” See Suppl. Response Br. of
Appellant 2 (invoking the provision of Regulation 190-8 at § 1-5(a)(2) that “[a]ll persons
taken into custody by U.S. forces will be provided with the protections of the [Third
Convention] until some other legal status is determined by competent authority”
(emphasis added)). Hamidullin also asserted “that a detainee’s seizure by U.S. forces in
armed conflict coupled with an assertion of prisoner of war status is equivalent to ‘doubt’
which requires the detainee to be treated as a POW until a competent tribunal, as defined
by [Regulation 190-8], decides otherwise.” Id. at 3 (citing Army Reg. 190-8 at § 1-6(b)).
Moreover, Hamidullin criticized the Government for relying on the 2002 Presidential
Statement and ignoring “the near-universal conclusion, since [the Statement] was issued,
that the President’s [Article 4] determination violated the [Third Convention] and
[Regulation] 190-8.” Id. at 4.
Following our announcement that the second oral argument in this matter would
be held in December 2017, the Government opted to file an additional supplemental
53
brief. No longer arguing that the relevant Third Convention issues were conclusively
determined by the 2016 Presidential Report and the 2002 Presidential Statement, the
Government seemed to revert to its original position that it was up to the courts to decide
whether the war against the Taliban was an Article 2 international armed conflict in late
2009 and whether Hamidullin is eligible for POW status under Article 4. The
Government merely included the 2016 Presidential Report in a string of authorities cited
for the purpose of convincing us to find that the war had become an Article 3 non-
international armed conflict prior to Hamidullin’s capture. Meanwhile, the Government
did not explicitly reference the 2002 Presidential Statement at all. Rather, the
Government mentioned only that the Executive Branch “has specifically determined that
members of the Taliban are not entitled to POW protections,” and did so only in the
course of urging us to affirm the POW determination made by the district court. See
Second Suppl. Br. of Appellee 14 (“To be sure, the judicial branch must render its own
decision on the availability of immunity to criminal charges here. But a joint judgment of
the political branches in this arena is entitled to the utmost deference from this Court.”).
At the second oral argument, however, the Government revived its theory that the
Executive Branch has already answered the Article 2 and Article 4 questions. Rather
than crediting the 2016 Presidential Report with deciding the Article 2 issue, the
Government asserted it is implicit in the manner the United States has carried out the war
against the Taliban since 2001 that the Executive Branch changed the status of the war
from an Article 2 international armed conflict to an Article 3 non-international armed
conflict by 2009. With respect to the Article 4 issue, the Government reiterated its
54
reliance on the 2002 Presidential Statement. For his part, Hamidullin stood firm that the
Article 2 question is for the courts, but that Army Regulation 190-8 in any event
guarantees a military tribunal’s assessment of his POW status under Article 4.
D.
That brings us to today, when my friends of the panel majority have taken it upon
themselves — under the guise of treaty interpretation — to resolve the conflicting
evidence and authorities to make their original determination that the war against the
Taliban was no longer an Article 2 international armed conflict by 2009. Additionally,
the majority rejects Hamidullin’s argument that, regardless of the status of the war,
Regulation 190-8 entitles him to have his Article 4 eligibility for POW status determined
by a military tribunal. According to the majority, its decision safeguards the courts’
jurisdiction to interpret treaties and adjudicate crimes, and also respects the 2002
Presidential Statement. As explained below, however, the majority actually usurps the
authority of the Executive Branch and fails to grapple with significant questions
surrounding the enforceability of the 2002 Presidential Statement’s categorical Article 4
ruling. I therefore must dissent from the majority’s decision.
III.
As I see it, the Third Geneva Convention questions underlying Hamidullin’s POW
claim are initially for the Executive Branch, not the Judiciary. Crucially, we are asked
here not to simply interpret the Third Convention — as the Judiciary is entirely capable
and qualified to do — but to determine whether the Convention applies to particular
55
hostilities and a particular detainee. In the circumstances, I believe we must refer the
Third Convention questions to the Executive for first consideration and then review its
answers as appropriate. Indeed, the Government itself espoused in its original
supplemental brief that it is the Executive’s role to determine “the character of the
conflict, the status of the Taliban, and the proper application of the [Third Convention]
and [Army Regulation] 190-8,” as those “determinations constitute a classic exercise of
the President’s war powers and his authority over foreign affairs that also implicates his
exclusive authority to determine whether a foreign government merits recognition.” See
Suppl. Br. of Appellee 13 (relying on Zivotofsky v. Kerry, 135 S. Ct. 2076, 2086 (2015),
for the proposition that “[r]ecognition is a topic on which the Nation must speak with one
voice,” and “[t]hat voice must be the President’s” (alteration and internal quotation marks
omitted)); see also, e.g., Chi. & S. Air Lines, Inc. v. Waterman S. S. Corp., 333 U.S. 103,
109 (1948) (generally recognizing that the President “possesses in his own right certain
powers conferred by the Constitution on him as Commander-in-Chief and as the Nation’s
organ in foreign affairs”).
A.
That we should not deem ourselves to be the primary arbiters of the Third
Convention questions is demonstrated by the Supreme Court’s decision in Hamdan v.
Rumsfeld, 548 U.S. 557 (2006). 4 The Hamdan matter involved a Yemeni national and
4
Notably, Hamidullin invoked the Hamdan decision as support for his contention
that the Article 2 question is for the Judiciary, not the Executive Branch. Upon
examination, however, Hamdan engenders the opposite conclusion.
56
alleged member of al Qaeda who was captured in Afghanistan, turned over to the U.S.
military, and imprisoned in Guantanamo Bay, Cuba. The question was whether Hamdan
could be tried on a criminal conspiracy charge by a U.S. military commission. Of
particular relevance here, the Hamdan Court concluded “that the military commission
convened to try Hamdan lacks power to proceed because its structure and procedures
violate . . . the Geneva Conventions.” See 548 U.S. at 567.
As part of its analysis, the Hamdan Court recognized that there was a distinction
between the war against the Taliban — which was accepted at that time as an Article 2
international armed conflict based on the 2002 Presidential Statement — and the war
against al Qaeda. See 548 U.S. at 628-29 & n.60. The 2002 Presidential Statement
declared that the separate war against al Qaeda was neither an Article 2 international
armed conflict nor an Article 3 non-international conflict, potentially rendering Hamdan
ineligible for any Third Convention protections at all. Id. at 628-30.
Significantly, the Third Convention issue presented in Hamdan — whether
Hamdan could be tried by military commission because the war against al Qaeda was
neither an Article 2 international armed conflict nor an Article 3 non-international armed
conflict — was first decided by the Executive Branch and then presented to the courts for
review. And, in assessing that issue, the Supreme Court expressly refrained from
examining the characteristics of the war against al Qaeda and declaring it to be either an
international or non-international armed conflict. See Hamdan, 548 U.S. at 629. Rather,
the Court cautiously confined itself to a straightforward interpretation of the Third
Convention sufficient to dispose of Hamdan’s appeal. That is, the Court determined,
57
premised on the Third Convention’s language, that any conflict that does not constitute
an Article 2 international conflict must be an Article 3 non-international conflict. Id. at
629-31. From there, the Court ruled that Hamdan was entitled at a minimum to the
protections of Article 3, and that the military commission convened to try him
contravened Article 3’s requirements. Id. at 631-32 (“Article 3, then, is applicable here
and . . . requires that Hamdan be tried by a ‘regularly constituted court affording all the
judicial guarantees which are recognized as indispensable by civilized peoples.”). 5
As the panel majority would now have it, this Court — like the Supreme Court in
Hamdan — is a simple treaty interpreter. Unlike the Hamdan Court, however, we are not
reviewing an Executive Branch determination, and we cannot restrict ourselves to a clear-
cut interpretation of the Third Convention. Instead, we are asked to determine in the first
instance whether particular hostilities (the war against the Taliban, as of late 2009)
constituted an Article 2 international armed conflict, and whether a particular detainee
(Hamidullin) is eligible for Article 4 POW status. Despite those material distinctions and
in contravention of Hamdan’s cautious approach, the panel majority takes up the Third
Convention questions.
5
The Hamdan Court also acknowledged Hamdan’s argument that he was entitled
to be treated as a POW under Article 5 of the Third Convention and Army Regulation
190-8 “until his status is determined by a ‘competent tribunal.’” See 548 U.S. at 629
n.61. Because the Court concluded “that Hamdan may not, in any event, be tried by the
military commission the President has convened,” the Court reserved “the question
whether his potential status as a prisoner of war independently renders illegal his trial by
military commission.” Id.
58
B.
The unsuitability of leaving the Third Convention questions to the courts is also
illustrated by the panel majority’s decision, wherein the majority determines that when
Hamidullin was captured by the U.S. Army in late 2009, “the conflict in Afghanistan was
not an international armed conflict.” See ante at 12. The Article 2 determination is
premised on factual findings rendered by the majority, including that “[t]he conflict in
Afghanistan began in 2001 as . . . a conflict between the United States and its coalition
partners on one side, and the Taliban-controlled Afghan government on the other,” and
that since “the Taliban lost control of the government and was replaced by a government
led by Hamid Karzai,” there merely has been a conflict in Afghanistan “against unlawful
Taliban insurgents.” Id. at 12-13.
“It is axiomatic, however, as our Judge Hall eloquently explained, that appellate
courts do not make factual findings.” See Robinson v. Wix Filtration Corp., 599 F.3d
403, 419 (4th Cir. 2010) (King, J., dissenting) (citing Columbus-Am. Discovery Grp. v.
Atl. Mut. Ins. Co., 56 F.3d 556, 575-76 (4th Cir. 1995) (“It is a basic tenet of our legal
system that, although appellate courts often review facts found by a judge or jury . . . ,
they do not make such findings in the first instance.”)). Furthermore, the panel
majority’s factual findings are on shaky evidentiary ground. The record contains only the
evidence — much of it disputed — that the parties chose to present. And even that
evidence casts doubt on the majority’s findings.
For example, in opining that the war against the Taliban cannot be characterized as
an Article 3 non-international armed conflict, Hamidullin’s expert witness pointed to
59
news reports that the war has not been confined to Afghanistan (the United States having
attacked Taliban targets in Pakistan), and that the Taliban has been supported by other
countries (Pakistan and Iran having supplied troops, weapons, and other materials). See
J.A. 440. The witness explained that the reported information was probably classified but
could be verified by government officials with appropriate security clearances. Id. Yet
the panel majority does not acknowledge or confront Hamidullin’s evidence in finding
that the war has been waged only in Afghanistan and solely against the Taliban. Nor
does the majority express any concern over the record’s lack of classified, but potentially
pertinent, evidence.
Further undermining the panel majority’s decision is its reliance on debatable,
non-binding authorities and so-called “[c]ommon sense.” See ante at 15 (simplifying the
issue to the supposedly commonsensical proposition that “[i]f 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”). The majority wholly ignores the compelling contrary
authorities that led the district court to conclude, quite understandably, that the Article 2
question may be unanswerable — at least on the limited materials submitted in these
court proceedings.
Worse still, the panel majority allows for just two possibilities in its Article 2
analysis: first, that the war against the Taliban was an Article 2 international armed
conflict in late 2009, leaving Hamidullin eligible to be adjudged a POW; or second, that
60
the war was instead an Article 3 non-international armed conflict at the relevant time,
excluding Hamidullin from POW status. An important third possibility would be
available to the Executive Branch: that, notwithstanding the proper characterization of
the war, Hamidullin may be treated as a POW. The 2016 Presidential Report reserved
the right to exceed the requirements of the Third Convention, and the Government’s
expert witness recognized that the United States has long accorded POW status to
detainees lacking legal entitlement in the hope of securing reciprocal treatment of U.S.
forces. But, in the majority’s conception of the courts as treaty interpreters, the Judiciary
is without the authority to make such a discretionary judgment.
C.
Other problems surface in the panel majority’s decision where it rejects
Hamidullin’s argument that, regardless of the status of the war against the Taliban, Army
Regulation 190-8 entitles him to have his Article 4 eligibility for POW status determined
by a military tribunal. According to Hamidullin, all detainees who claim to be POWs
must be accorded military tribunals for determination of their status. To be clear, I am
not saying that argument is meritorious. I do not reach the issue, which I believe should
be referred to the Executive Branch as part of its initial consideration of the Third
Convention questions. What I am saying is that the majority’s reasons for rejecting
Hamidullin’s argument are untenable.
1.
First, the panel majority reasons that accepting Hamidullin’s argument would strip
the federal courts of the jurisdiction to interpret treaties and adjudicate crimes. In other
61
words, the majority concludes that the courts possess the authority to decide in the first
instance whether a detainee qualifies as a POW pursuant to Article 4 of the Third
Convention — i.e., a federal court can be the “competent tribunal” required by the
Convention’s Article 5. I disagree. In the United States, Article 5 proceedings are to be
conducted before a U.S. military tribunal. See Army Reg. 190-8 at § 1-6. Arguably, the
President also may decide detainees’ POW status under Article 4. But the Article 4
question is not one that can be answered initially by the courts.
a.
As previously explained, the Third Convention leaves it to the High Contracting
Parties to adopt laws and regulations to ensure the Convention’s application. See Third
Geneva Convention art. 128. Thus, an Article 5 “competent tribunal is established by
domestic law,” and “[r]ules clarifying the tribunal’s competence, composition and
procedure must be provided by the detaining State.” See Yasmin Naqvi, Doubtful
Prisoner-of-War Status, 84 Int’l Rev. of the Red Cross 571, 593 (2002). Relevant to
persons captured by the United States, Army Regulation 190-8 specifies the composition
of an Article 5 competent tribunal — a military tribunal — and delineates the procedures
to be followed in Article 5 proceedings. Among the extensive requirements and
procedures spelled out in Regulation 190-8 is that the tribunal be comprised of three
commissioned officers, with the senior ranking officer serving as the tribunal’s President
and an additional non-voting officer serving as its recorder. See Army Reg. 190-8 at § 1-
6(c).
62
Simply put, pursuant to Army Regulation 190-8, the United States has placed the
responsibility for the Third Convention’s Article 5 proceedings in the hands of military
tribunals — not the federal courts. Because Regulation 190-8 has the force and effect of
law, the courts are bound to respect and enforce it. See, e.g., Al Warafi v. Obama, 716
F.3d 627, 629 (D.C. Cir. 2013) (“Army Regulation 190-8 is domestic U.S. law . . . .”).
The controlling legal authorities for that proposition extend to Supreme Court decisions
nearly 200 years old. See Billings v. Truesdell, 321 U.S. 542, 551 (1944) (“War
Department Regulations have the force of law . . . .”); Standard Oil Co. v. Johnson, 316
U.S. 481, 484 (1942) (“[A]uthorized War Department regulations have the force of
law.”); Gratiot v. United States, 45 U.S. (4 How.) 80, 117 (1846) (“As to the army
regulations, this court has too repeatedly said, that they have the force of law . . . .”);
United States v. Eliason, 41 U.S. (16 Pet.) 291, 302 (1842) (“The secretary of war is the
regular constitutional organ of the president, for the administration of the military
establishment of the nation; and rules and orders publicly promulged through him 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.”).
Contrary to the panel majority, Army Regulation 190-8’s designation of military
tribunals to conduct Article 5 proceedings does not strip the federal courts of jurisdiction
to interpret treaties and adjudicate crimes. First of all, Article 4 POW determinations, as
previously stated, are not matters of simple treaty interpretation within the province of the
courts. Additionally, as Hamidullin has contended, Regulation 190-8’s requirement that
a military tribunal make Article 4 POW determinations simply serves as a legal
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prerequisite to criminal prosecution. See, e.g., 18 U.S.C. § 249(b) (requiring certification
from Attorney General before hate crimes prosecution may proceed); id. § 5032
(similarly mandating certification for juvenile prosecution); see also Suppl. Br. of
Appellant 12 (“Analogous circumstances exist in which the government must comply
with prerequisite steps before proceeding with a criminal prosecution.” (citing §§ 249(b)
and 5032)).
b.
There also is no precedent for the proposition that a federal court is a proper
substitute for a military tribunal when it comes to Article 5 proceedings. Indeed, we
previously observed in Hamdi v. Rumsfeld that “it is anything but clear that the
‘competent tribunal’ which would determine [a person’s POW] status would be an
Article III court.” See 316 F.3d 450, 469 (4th Cir. 2003) (directing dismissal of 28
U.S.C. § 2241 petition challenging lawfulness of U.S. citizen’s detention as enemy
combatant), vacated on other grounds by 542 U.S. 507 (2004). Moreover, Justice
O’Connor’s opinion in Hamdi recognized “that military regulations . . . dictat[e] that
[military] tribunals be made available to determine the status of enemy detainees who
assert prisoner-of-war status under the [Third] Geneva Convention.” See 542 U.S. at 538
(plurality opinion) (citing Army Reg. 190-8 at § 1-6).
The scant authority supporting the notion that a U.S. court can be an Article 5
competent tribunal is not binding or even persuasive here. In United States v. Noriega,
for example, a district court in Florida was confronted at sentencing with whether the
captured former dictator of Panama, Manuel Noriega, was a POW. See 808 F. Supp. 791
64
(S.D. Fla. 1992). Although the court observed “that conducting foreign policy is
generally the province of the Executive branch,” the court did not acknowledge the U.S.
military regulations assigning responsibility for Article 5 proceedings to military
tribunals. Id. at 796. The court ultimately surmised that, because it was “properly
presented with [Noriega’s POW claim],” it was, “under the law, a ‘competent tribunal’
which can decide the issue.” Id. The court offered no compelling legal rationale for that
conclusion, however, and its ruling on Noriega’s status — that he was a POW — was
never reviewed by an appellate court. See Noriega v. Pastrana, 559 U.S. 917, 919 n.2,
921 (2010) (Thomas, J., dissenting from the denial of certiorari) (recounting that,
“notwithstanding various separation-of-powers and justiciability concerns,” the district
court designated Noriega a POW, and the POW designation went unchallenged in later
proceedings).
In rejecting Hamidullin’s POW claim, the distinguished presiding district judge
relied on an Eastern District of Virginia colleague’s decision several years ago in United
States v. Lindh, 212 F. Supp. 2d 541 (E.D. Va. 2002). Like the POW ruling in Noriega,
the Lindh decision was not appealed. In Lindh, the Government argued that Lindh, a U.S.
citizen alleged to have fought for the Taliban, was not immune from criminal prosecution
because the 2002 Presidential Statement had categorically excluded Taliban fighters from
POW status under Article 4 of the Third Convention. The Lindh court observed that the
2002 Presidential Statement’s Article 4 determination was subject to judicial review, but
entitled to substantial deference. See 212 F. Supp. 2d at 556-57 (explaining that such
deference was “warranted given the President’s special competency in, and constitutional
65
responsibility for, foreign affairs and the conduct of overseas military operations”).
Nevertheless, the court engaged in its own assessment of Lindh’s POW status and
determined that he failed to prove that Taliban fighters satisfy the criteria set forth in
Article 4(A)(2). Id. at 557-58 (concluding that, “even absent deference, the Taliban falls
far short when measured against the four [Article 4(A)(2)] criteria”). Like the district
court here, the Lindh court failed to acknowledge Article 5 and its requirement for
proceedings before a “competent tribunal,” or Army Regulation 190-8 and its directive
that Article 5 proceedings are to be conducted by a military tribunal.
At bottom, the panel majority’s view that a federal court may constitute the
“competent tribunal” required by Article 5 of the Third Convention garners no support
from controlling or even persuasive authority. More importantly, the majority’s view
defies the Convention and the United States’ chosen scheme for making Article 4 POW
determinations, as set forth in Army Regulation 190-8. Consequently, it is wrong for the
majority to dismiss Hamidullin’s quest for a military tribunal as an improper effort to
strip the courts of jurisdiction. 6
6
Although the panel majority confirms the district court’s authority to render its
Article 4 POW determination, the majority deems it unnecessary to review the merits of
that determination (because the majority alternatively finds that the war against the
Taliban was not an Article 2 international armed conflict by 2009). The district court’s
Article 4 analysis raises various questions, however, about the propriety of the
proceedings and whether they were conducted in a manner consistent with that of a U.S.
military tribunal. See supra note 3. For example, how could it be proper for the court to
place the burden on Hamidullin to prove he is a POW? Shouldn’t the court have
considered the characteristics of Hamidullin individually, rather than focusing on Taliban
and Haqqani fighters generally? Should the court have considered the additional relevant
evidence that was adduced in Hamidullin’s trial? To be sure, there also is doubt about
(Continued)
66
2.
The panel majority next invokes the 2002 Presidential Statement as a basis for
rejecting Hamidullin’s argument that Regulation 190-8 entitles him to have his Article 4
eligibility for POW status determined by a military tribunal. The majority explains that a
remand to a military tribunal would “necessarily involve a reconsideration of President
Bush’s [categorical Article 4 determination],” and that it would be improper for this
Court “to provide a three-member military tribunal with the authority to displace the
president’s interpretation of the Convention.” See ante at 19; see also id. at 28
(Wilkinson, J., concurring) (“A military regulation cannot overcome . . . the Commander-
in-Chief’s declaration that ‘Taliban detainees are unlawful combatants and, therefore, do
not qualify as prisoners of war’ under the Third Geneva Convention . . . .” (quoting 2002
Presidential Statement at 2)). In so doing, the majority unquestioningly accepts the 2002
Presidential Statement as a conclusive determination of the Article 4 question.
the court’s conclusion that Hamidullin is not within any Article 4 category. See Opening
Br. of Appellant 23 (arguing that Hamidullin satisfies the requirements of Article
4(A)(2), as “the testimony at trial indicates that Mr. Hamidullin and his fellow soldiers
were organized in a military command, wore distinctive clothing distinguishing them
from the local population, openly carried arms, and did not violate the laws and customs
of war”); see also id. at 25-26 (separately contending that, as a member of the armed
forces of Afghanistan’s government-in-exile, Hamidullin is a POW under Article
4(A)(3), which “was designed to cover situations which had caused numerous problems
during World War II with its many governments-in-exile,” including Nazi Germany’s
refusal to accord POW status to forces of the Free French (internal quotation marks
omitted)).
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Significantly, the panel majority does not acknowledge that the Government only
belatedly invoked the 2002 Presidential Statement as dispositive of Hamidullin’s Article
4 eligibility for POW status, precluding development in the district court of how much
deference the Statement may be due. The majority also does not acknowledge that the
Government has since taken inconsistent positions on the Statement’s efficacy. Or that
the Government’s own expert witness condemned the Statement’s Article 4
determination as “flawed” and “politically based rather than based on law.” See J.A. 400.
Or that the district court, and the Lindh court before it, declined to defer to the Statement
in conducting their own Article 4 analyses. Or that the Statement’s Article 4
determination has been questioned by the Supreme Court. See Hamdi, 542 U.S. at 550
(Souter, J., concurring in part, dissenting in part, and concurring in the judgment)
(observing that it “appears to be a violation [of Article 5 of the Third Convention]” and
“at odds with [Army Regulation 190-8]” for the President himself to categorically
withhold POW status from a captured person instead of convening a military tribunal to
make an individual determination).
Strikingly, the panel majority also does not explain why it can conclude that the
2002 Presidential Statement’s Article 2 determination (that the war against the Taliban is
an international armed conflict) has been implicitly abrogated, but no one can question
the continuing force of the Statement’s Article 4 determination (that Taliban fighters
nevertheless cannot qualify as POWs). Particularly flummoxing is my good friend’s
separate opinion, wherein he accuses me of stubbornly and unreasonably ignoring the
“many” “clear statement[s] from the Executive Branch on whether Taliban and Haqqani
68
fighters should be accorded POW status” — including the 2002 Presidential Statement.
See ante at 28 n.1 (Wilkinson, J., concurring) (internal quotation marks omitted). My
friend emphasizes that the Statement’s Article 4 determination “has never been rescinded,
superseded, or modified,” and he declares that “its relevance could not have been
diminished in 2009” because, “by that time, the Taliban had been overthrown and the
conflict had become a non-international armed conflict.” Id. Of course, the Statement’s
Article 2 determination also has never been explicitly “rescinded, superseded, or
modified,” and it was made in 2002 following the Taliban’s ouster from power.
In these circumstances, we are in no position to defer to the 2002 Presidential
Statement’s Article 4 determination. As such, the panel majority’s embrace of the
Statement is ill-advised and inappropriate.
D.
On a final note, I address the other supposed “clear statement[s] from the
Executive Branch” identified by my good friend in his separate opinion. See ante at 28
n.1 (Wilkinson, J., concurring) (internal quotation marks omitted). They include the
Government’s initial appellate argument that the 2002 Presidential Statement’s Article 4
determination is entitled to deference but not dispositive of Hamidullin’s POW claim,
and the Government’s subsequent, inconsistent contention that the Statement
conclusively renders Hamidullin ineligible for POW status. Id. (citing Opening Br. of
Appellee 33-35; Suppl. Br. of Appellee 2). “The clearest statement imaginable,”
according to my friend, “is the prosecution of Hamidullin that began in 2014 and the
conviction of Hamidullin defended by the government on appeal.” Id.
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Contrary to my friend’s characterization of “clear statement[s] from the Executive
Branch,” the Government has acknowledged that nothing in the record explains how or
why Hamidullin was transferred from military to civilian custody, or how he ended up in
Virginia. Meanwhile, the Government has not sought to supplement the record or
otherwise provide an explanation that can be reviewed by this Court. As a former federal
prosecutor, I know that if the Government could explain some satisfactory pre-
prosecution process afforded Hamidullin, it would do so. I am not willing to accept that
the mere fact of Hamidullin’s prosecution guarantees that the Executive Branch properly
considered his POW status — especially when the Government has seesawed between
insisting, on the one hand, that the POW determination is for the courts, and on the other
hand, that an unassailable Executive determination has already been made (via the 2002
Presidential Statement, or maybe the 2016 Presidential Report, or perhaps implicitly
some other way). The Government is not infallible, and I will not heedlessly treat it as
such.
IV.
Pursuant to the foregoing, I respectfully dissent from the panel majority’s
decision. Rather than affirming Hamidullin’s convictions (as the majority does), or
vacating those convictions (as Hamidullin wants us to do), I would remand this matter for
the limited purpose of the Executive Branch’s consideration and explanation of
Hamidullin’s POW status. In my view, unless and until the Executive resolves his POW
claim, Hamidullin should be treated in accordance with the Third Geneva Convention
70
and Army Regulation 190-8. The district court should also be authorized to conduct
related proceedings, including proceedings on the status of the criminal judgment against
Hamidullin pending the Executive’s resolution of his POW claim; proceedings to review,
if appropriate, any POW determination made by the Executive; and proceedings to
ascertain, in the wake of any POW determination, the extent of Hamidullin’s
susceptibility to criminal prosecution and the validity of the criminal judgment against
him. Until such remand proceedings are completed, we should hold in abeyance the
balance of this appeal, including Hamidullin’s other grounds for dismissal of the
Indictment.
With the utmost admiration for my distinguished colleagues, I therefore dissent.
71