Foreign detainees from Afghanistan are being considered for military trial in U.S.

The Obama administration is actively considering the use of a military commission in the United States to try a Russian who was captured fighting with the Taliban several years ago and has been held by the U.S. military at a detention facility near Bagram air base in Afghanistan, former and current U.S. officials said.

The Russian is a veteran of the Soviet war in Afghanistan in the 1980s who deserted and ended up fighting U.S. forces after the Sept. 11, 2001, attacks. U.S. officials said the man, thought to be in his mid- to late 50s, is suspected of involvement in several 2009 attacks in which U.S. troops were wounded or killed. He was wounded during an assault on an Afghan border post that year and later captured.

Little else is known about him except for his nom de guerre, Irek Hamidullan.

A decision to move him to the United States would mark the first time a post-Sept. 11 detainee was brought before a military tribunal here and could lead to a clash with Congress, which has barred transfer to the United States of prisoners held at Guantanamo Bay, Cuba. No similar barrier has been enacted to prohibit the transfer of detainees from Afghanistan, largely because the question has never arisen.

But as it nears the deadline for the drawdown of U.S. forces in Afghanistan by the end of 2014, the administration is faced with what to do with several dozen non-Afghans it retained custody of when it turned over thousands of Afghan prisoners to the Kabul authorities under an agreement signed in March. The remaining 53 third-country nationals are deemed a continuing threat to the United States, according to U.S. officials who spoke on the condition of anonymity to discuss internal deliberations.

A senior administration official declined to discuss individual cases and emphasized that no final decisions had been made on how to deal with any of the detainees. “All possible options are under consideration,” the official said.

Because of evidentiary and other problems, only a handful of the detainees, described by officials as in the single digits, are being considered for trial in the United States. Officials think most can be sent back to their home countries, with security guarantees. “Repatriation would be our first option with respect to the vast majority,” the senior official said.

In recent years, the United States has secretly charged and moved to this country for civilian trial several terrorism suspects captured overseas. But it has never attempted to bring a detainee into the United States, from Bagram or elsewhere, for prosecution by the military.

A military trial is likely to draw flak from human rights activists, who say that only federal criminal courts offer a full measure of justice. Andrea Prasow of Human Rights Watch said the military commissions system at Guantanamo Bay has been plagued with problems and should be shut down, not imported into the United States.

“You can charge people with material support [in federal court] and get a conviction,” she said. “It’s not hard.”

But administration officials said that not every case can be made in federal court and that military tribunals are the proper forum for war crimes. Moreover, they said, inaction risks the release of dangerous terrorists, especially if no agreement is reached with Afghanistan on a reduced, long-term U.S. military presence there after next year.

Among the many problems of the Iraq withdrawal that the administration does not want to repeat was the transfer to Iraqi custody of third-country nationals. Officials frequently cite the case of Ali Musa Daqduq, a Lebanese citizen suspected of ties to the Hezbollah militant group and Iran, who was captured in 2007 over his alleged involvement in an attack in southern Iraq that killed a U.S. soldier. Four others were kidnapped and later found dead.

Daqduq, the last prisoner held by U.S. forces in Iraq, was turned over to the Iraqi government just days before the final American withdrawal in December 2011. In May 2012, an Iraqi court released him for what it said was lack of evidence.

The Kabul government’s release of many of the 3,000 Afghan prisoners turned over this year, most of them captured on the battlefield, has been taken by U.S. officials as a warning about the future status of the non-Afghans still in American custody. Some of them have been held from the early days of the 12-year-old war.

Unlike in the case of detainees at Guantanamo, U.S. courts have ruled that these prisoners have no right to lodge habeas corpus challenges to their imprisonment. Military officers conduct twice-yearly reviews of their cases in proceedings at which they have no right to outside legal representation, and none has been granted a civilian or full-fledged military judicial process. Although the International Committee of the Red Cross pays them visits, their names and nationalities are officially secret.

Even the number of detainees had been secret until recently. After the prisoner-transfer agreement with Afghanistan in March, President Obama for the first time acknowledged their existence in his bi­annual letter to Congress reporting military action under the War Powers Resolution. At that point, they numbered 66. In his most recent report, on Friday, Obama put the number at 53, providing no explanation of what happened to the others.

Six were repatriated last month to Pakistan, a fact revealed only because of a court case in which advocates for the men demanded more information. The case was dismissed by the U.S. Court of Appeals for the D.C. Circuit, although documents submitted to the court included a declaration by Paul Lewis, the administration’s newly appointed special envoy for detainee transfers. He said Pakistan agreed to “take responsibility for ensuring, consistent with Pakistan law, that the transferred detainees will not pose a continuing threat to the United States and its allies.”

The six are reportedly being held in a prison in Peshawar.

The bulk of the foreign nationals in U.S. custody in Afghanistan are Pakistani; the others are known to be from Tunisia, Yemen, Uzbekistan and elsewhere.

“The people the U.S. houses in Bagram are pretty bad,” said Rep. Mike Rogers (R-Mich.), chairman of the House Intelligence Committee, who has visited the prison in Afghanistan. “They are the worst.”

Military prosecutors have examined the evidence against Hamidullan and consider the case among the strongest that could be brought against any of the foreigners held at the Parwan Detention Facility near Bagram.

“He’s pretty well-connected in the terrorist world,” said one official with firsthand knowledge of the case. Hamidullan is thought to have links to one or more insurgent groups and ties to Chechnya, a part of the Russian Federation where rebels have fought two unsuccessful wars for independence.

Officials said Hamidullan remains committed to violent jihad and has sworn that he will return to the battlefield if he is released from prison. U.S. officials said that they have discussed the case with Moscow but that the Russians displayed little or no interest in his return. The senior official said transfers “are not always just up to us. Other countries have a say. Detainees have a say” in cases in which there are concerns about inhumane treatment.

The Russian could be tried at a U.S. military facility, such as the Naval Brig in Charleston, S.C., officials said.

Some in the administration say that conducting a successful commission case in the United States could help persuade Congress to lift its ban on bringing Guantanamo detainees here for prosecution or imprisonment. Obama remains committed to closing the facility in Cuba, and officials said there is no long-term alternative for about 20 of the remaining Guantanamo prisoners other than bringing them here.

The administration initially hoped to at least put off resolving the issue of third-country detainees in Afghanistan by including continued U.S. custody of them under the recently negotiated bilateral security accord with the Kabul government. The idea was that each country would recognize a joint right to detain foreign nationals as unlawful combatants.

“There were a couple of different drafts that addressed this issue, but it was removed because they couldn’t reach agreement on it,” said Rep. Adam B. Schiff (D-Calif.), a member of the House Intelligence Committee. Although U.S. officials said the question of the foreign detainees is still being discussed with Afghan representatives, it will be moot if Afghanistan continues to refuse to sign the overall security agreement and there is no American military presence there after 2014.

If the administration moves to a “zero option” and withdraws all U.S. forces, Schiff said, “our ability to continue any kind of role in their detention in Afghanistan will evaporate.”

But Schiff, who said he had no specific knowledge of the administration’s plans, warned of significant political fallout if Obama attempted an end run around Congress.

“I think the political reality is that there is so much resistance to bringing Guantanamo detainees here to be tried, we would face the same kind of resistance to bringing third-country nationals here from Afghanistan,” he said.

Julie Tate contributed to this report.

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