AUDIE CORNISH, HOST:
After years of debate about how and where to try enemy combatants picked up on the battlefield, a first. Yesterday, the White House confirmed that a detainee will be transferred from an Afghan prison to the U.S. to face charges in a federal civilian court. Many terrorism suspects have already been convicted in U.S. courts. This is the first time a suspect captured on the battlefield in Afghanistan and held in U.S. military custody there has been brought into the U.S. criminal justice system.
Joining me to help explain this is Bobby Chesney. He teaches national security law at the University of Texas at Austin. Welcome to the program.
BOBBY CHESNEY: Thank you very much for having me.
CORNISH: So let's get into the backstory here. This detainee, he's actually a Russian national who had been fighting with the Taliban and I understand was held by the U.S. in Afghanistan for five years.
CHESNEY: That's right. His nom de guerre: Irek Hamidullan. He may have fought in Afghanistan against the Soviet Union in the '80s and then ends up in American custody in 2009 apparently having been involved in attacks that either wounded or perhaps even killed American troops. And he's been held in our custody in Afghanistan ever since.
CORNISH: So why would the Obama Administration decide to bring him here to the U.S. now?
CHESNEY: There's a clock ticking. For several years we've known that we would not able to maintain our detention operations in Afghanistan forever. And the process of keeping detainees there, that's been unwound slowly over the past several years. And we are now down to a final small group of non-Afghan detainees for whom it's very difficult to figure what to do next. Some of them, they have American blood on their hands. And there needs to be a detention solution or something once we get to the end of this year and we need to close down the facilities once and for all.
CORNISH: So in the meantime, this detainee has been at Bagram. I mean, where was he in the legal process? Was he just sitting in jail? Was he being used for intelligence purposes?
CHESNEY: Well, there's no doubt been some amount of intelligence interrogation. But his status has not been that of a criminal defendant. It's been that of a military detainee held under color of the laws of war. And this is the same sort of legal foundation that we see used at Guantanamo and have used for many detainees in Afghanistan over the years. It's the standard claim that someone who is a fighter for the enemy, that you don't have to prosecute them. You can hold them for the duration of hostilities. But of course our involvement in hostilities there is winding down. And even if we wanted to maintain the claim we had the right to hold him longer, we've got to do it somewhere else.
CORNISH: So why do you think that this case is one to watch? I mean, you mentioned Guantanamo. And I want more of an understanding of how these things relate to each other.
CHESNEY: One of the things we know about the Obama Administration's position on Guantanamo is they would very much like to close Guantanamo. The administration early on had attempted to start the process of taking at least some of the Guantanamo detainees, bringing them to the United States for civilian criminal trials, and there was a huge pushback. And there was a lot of criticism. And ever since then, Congress has made it impossible for the administration to bring other Guantanamo detainees into America to face trial. That rule doesn't apply to the lingering detention population in Afghanistan. So in a way, bringing Irek Hamidullan into the United States for prosecution is a bit of a pilot. Could we perhaps not only address the lingering elements of detention in Afghanistan this way, might it also be a solution we could reopen for Guantanamo?
CORNISH: Is that wishful thinking? Given the political opposition?
CHESNEY: (Laughter) I think it's a bit wishful thinking. And of course if this prosecution doesn't go well, if he's acquitted and then seeks asylum and is hard to remove the United States, these sorts of things will make it all the harder for the administration to achieve its goals of bringing any detainees into the United States in order to close Guantanamo.
CORNISH: Professor Bobby Chesney. He teaches national security law at the University of Texas at Austin. Thanks so much for explaining it to us.
CHESNEY: Thank you very much. Transcript provided by NPR, Copyright NPR.
