Washington Post - Military trial in U.S. being considered for Russian detained in Afghanistan

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By Adam Goldman and Karen DeYoung

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.

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.

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.

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