Back in December, I posted about a Washington Post story reporting that the Administration was “actively considering the use of a military commission in the United States to try a Russian who was captured fighting with the Taliban several years ago and has been held by the U.S. military at a detention facility near Bagram air base in Afghanistan.” Why not in an Article III court? The story cited anonymous administration officials as saying that “not every case can be made in federal court and that military tribunals are the proper forum for war crimes.”
What the Post story did not address, I wrote, “and what is critical to know in order to fairly evaluate the military commission option — is what ‘war crimes’ [Irek Hamidullin] is alleged to have committed (the story does not describe any), and why the conduct in question would not also constitute an offense under the U.S. criminal code (title 18).”
Well, it turns out that the conduct, if proved, would be an offense under Title 18–a dozen alleged offenses, in fact–and therefore Hamidullin is going to be tried in an Article III court in the Eastern District of Virginia, rather than in a military commission. Bobby Chesney has more of the details.
Moreover, although I can’t say for sure, on first glance it appears that Hamidullin’s acts–attacks on U.S. armed forces, mainly–were not violations of the law of war. Therefore it’s by no means certain that it would have been constitutional to try him in a military commission, in any event. As it turns out, then, and contrary to the reports of last winter, this might have been a case in which there wasn’t much of a choice at all–Article III is at the very least the more appropriate, and perhaps the only available, venue for prosecution.