U.S. District Court Judge Thomas Russell ruled Tuesday that an Iraqi refugee accused of terrorism activities can be tried in a civilian court.
Waad Ramadan Alwan, 30, who had been living as a refugee in Bowling Green, is accused of terrorism activities in a 23-count indictment. Alwan’s attorneys argued in a July 19 motion that the rules of the Geneva Convention apply to him and had attempted to get the first two counts of the criminal indictment against him dismissed.
Russell denied that motion Tuesday.
“The Court has not located, nor has Alwan provided, a segment of the Geneva Civilian Convention or another treaty that precludes the United States from applying the extraterritorial portions of its criminal code to the citizenry of an occupied country,” Russell wrote in his order. “These criminal charges may exist alongside the Geneva Civilian Convention without subverting its protections.”
The first two counts of the indictment accuse Alwan of conspiring to kill U.S. nationals overseas and conspiring to use a weapon of mass destruction against U.S. nationals overseas. Alwan is also accused of distributing information on how to manufacture and use improvised explosive devices, attempting to provide material support to terrorists and to al-Qaida in Iraq, and conspiring to transfer, possess and export Stinger missiles.
The indictment also accuses Alwan and Mohanad Shareef Hammadi, 23, of attempting to support terrorism in Iraq. Federal authorities arrested the men May 25 in Bowling Green.
A federal grand jury indicted Alwan and Hammadi on May 26.
Alwan’s defense attorney, Scott Wendelsdorf, asked the court in the July 19 motion to dismiss the first two counts against Alwan, arguing that the Geneva Convention does not authorize the U.S. to pursue criminal charges against Iraqi civilians for offenses committed within Iraq during U.S. occupation.
“At all relevant times, Mr. Alwan was a civilian citizen of Iraq living in that country. All acts are alleged to have occurred wholly within Iraq,” Wendelsdorf’s motion said. “Count 2 incorporates the same factual allegations as Count 1 and charges conspiracy to use an IED against a national of the United States.”
The defense motion states that the conduct alleged in the first two counts against Alwan “was to be prosecuted and punished in the Iraqi courts - or the military courts, commissions or tribunals of the Coalition states - pursuant to the Iraqi Penal Code of 1969, as amended by” the Coalition Provisional Authority.
Russell disagreed in his ruling.
“The rationale for this motion is unavailing,” Russell wrote. “The plain language of the statutes and their legislative histories indicate they are unrestricted in their extraterritorial application.
“Alwan’s contention that they do not apply to areas where there is a current military operation by the United States armed forces is therefore improper. Next, the Geneva Civilian Convention does not impact the United States’s right under international law to maintain concurrent jurisdiction over certain criminal acts against its citizens in foreign countries.”
The decision of the U.S. attorney to seek criminal prosecution in civilian courts against both Alwan and Hammadi has been a politically charged issue for U.S. Sen. Mitch McConnell, R-Ky., and state Rep. Jim DeCesare, R-Bowling Green, who both have argued that the two men should be tried before a military commission at Guantanamo Bay, Cuba.
McConnell, the Senate minority leader, sent a letter to U.S. Attorney General Eric Holder in July asking Holder to reconsider his decision to hold civilian trials for the men. On July 7, DeCesare prefiled a resolution, Bill Request 88, asking the 2012 session of the Kentucky General Assembly to urge President Barack Obama and Holder to abandon plans to try the men in federal court in Bowling Green and to transfer them to the detention facility in Cuba.
“The question has never been whether a terrorist can be tried in civilian court, the question is whether they should be,” McConnell said in an email Tuesday in response to the judge’s ruling. “We know from experience that trying terrorists in civilian court is a huge unnecessary risk, and I continue to be disappointed that this administration is content to roll the dice.”
The U.S. attorney’s office declined to comment on the Tuesday ruling.