NEW YORK — A federal judge is in the rare position of having to decide whether to grant immunity under military law to a Taliban commander facing charges in the 2008 killings of three U.S. soldiers and the kidnapping of an American journalist in Afghanistan.

       U.S. District Judge Katherine Polk Failla’s ruling could significantly truncate a 13-count indictment against Haji Najibullah, who was a Taliban spokesman and alleged orchestrator of a deadly attack on a military convoy.

       Najibullah is also charged with orchestrating the abduction of journalist David Rohde and two Afghan nationals who assisted Rohde in his overseas reporting. The captives were marched over the border to Pakistan, where they remained for seven months before Rohde and one of his companions made a remarkable escape (the other remained behind).

       The question at issue is whether Najibullah is entitled to prisoner-of-war protections — which could give him immunity for actions like killing enemy troops during combat — given that the Taliban was not the recognized government of Afghanistan at the time of his alleged crime, among other issues.

       It is very rare that a civilian jurist would have to make a decision of this nature, said David Glazier, a professor of international law and law of war at Loyola Law School and a retired Navy surface warfare officer.

       “This is a U.S. federal district court sitting in New York City, and who would ever expect them to be delving deeply into controversial and ridiculously complex law of war matters?” Glazier said, adding that it was also striking to see a member of the Taliban face murder charges in the United States like an “ordinary criminal.”

       Two highly experienced experts reached opposing conclusions when they testified before Polk Failla at a recent hearing, which Glazier said “highlights just how complex and unusual the situation is.”

       Christopher Jenks and Rachel VanLandingham are part of a relatively small universe of attorneys who are authorities on military law. The U.S. attorney’s office in Manhattan called Jenks, who said Najibullah is not entitled to prisoner-of-war status protections. VanLandingham, testifying for the defense, challenged the government’s position on the Taliban’s status in Afghanistan during the 20-year U.S. military operation there.

       Polk Failla’s decision will determine whether Najibullah will face charges for the killings of three U.S. soldiers deployed to Afghanistan: Sgt. 1st Class Matthew L. Hilton, Sgt. 1st Class Joseph A. McKay and Sgt. Mark Palmateer. It is not clear when the judge is expected to rule or if she is going to request additional arguments from the attorneys on the case.

       Najibullah’s legal team has argued that he was entitled to a combatant immunity status hearing in front of a military tribunal, and that he should only be tried on two counts that relate to the kidnapping of Rohde. Instead, the Justice Department brought a case in federal court, which is scheduled for trial Jan. 6.

       Najibullah was arrested in 2020 while traveling in Ukraine and extradited to face the kidnapping charges. A year later, a new indictment was filed against him related to the killing of the U.S. troops. Among the charges: providing material support for terrorism, murder of U.S. nationals, hostage taking and various conspiracies.

       Prosecutors have decided to drop two kidnapping-related counts that were being challenged by the defense, but Najibullah is still facing counts of hostage taking and hostage-taking conspiracy related to the Rohde abduction.

       Much of the alleged conduct, his lawyers argue, should be considered wartime activities in his role as a Taliban commander.

       “This country does not traditionally prosecute foreign soldiers simply for fighting against our military forces on a battlefield,” defense attorney Andrew Dalack wrote in a June 11 filing. “It would be illogical and inequitable to deprive Mr. Najibullah of a combatant immunity determination simply because he was not seized on the literal battlefield.”

       At the Aug. 8 hearing, Jenks described a well-established history of international law and widely accepted practices that find Najibullah should not be deemed a prisoner of war and should not be provided privileges that come with it. The Taliban was not the recognized government of Afghanistan in 2008, Jenks said, so Geneva Conventions procedures that might have offered Najibullah protections clearly would not apply.

       “Overwhelmingly … international law scholars or noted commentators considered the status of the armed conflict in Afghanistan in 2008 to be non-international in nature,” testified Jenks, who serves as a judge advocate general (JAG) senior law of war adviser at the Pentagon.

       VanLandingham, a retired Air Force lieutenant colonel, countered that the Taliban never surrendered its governing authority during the two-decade U.S. effort there and immediately took charge after the withdrawal of U.S. troops in 2021. Therefore, she argued, the fighting during the U.S. occupation should be governed by the law of war as an international armed conflict.

       “The installed government never exercised effective control over the territory of the state of Afghanistan to any type of degree that would divest the Taliban of its link to sovereign state authority,” said VanLandingham, a professor and research dean at Southwestern Law School, who from 2006 to 2010 served as a top legal adviser at U.S. Central Command on the application of international law to the conflicts in Afghanistan and Iraq.

       “The Taliban’s control over parts of the Afghanistan state territory waxed and waned over the years, so it depends on the year, but they maintained at least a continuous level of effective control over at least some parts of Afghanistan throughout that, over almost two decades.”

       VanLandingham compared the Taliban’s temporary removal from power to the Free French resistance movement during World War II, a group of French soldiers under the leadership of Charles de Gaulle who acted as a government in exile after France formally surrendered to Germany. That group was recognized as one entitled to privileges of any other formal country that was party to the Geneva agreements.

       “With the Taliban I see an even greater claim to state authority because it did maintain a presence continuously in Afghanistan,” VanLandingham testified.

       Jenks, during his testimony, disputed that the Free French and the Taliban could be compared. He said the Free French, who were widely recognized as the displaced French government, agreed to follow Geneva Conventions guidelines.

       Jenks said that a prisoner-of-war possibility is normally not talked about for members of the Taliban because of the broadly accepted conclusion that for most of the post-9/11 U.S. operation in Afghanistan, the Taliban was not in power.

       “The few that even reach [the opposite conclusion] for academic or intellectual purposes, and try to fit the Taliban under one of the criteria, conclude that they don’t fit,” Jenks added.

       Experts in military law are watching the case because of the unique circumstances of the matter.

       Geoffrey Corn, director for the Center for Military Law and Policy at Texas Tech University School of Law, said the Justice Department’s interpretation of the law — not recognizing an immunity path for Najibullah under Geneva Conventions guidelines — follows legal precedent and logic.

       “Even if by some stretch you characterize the conflict in which he fought as an international armed conflict … [Najibullah] doesn’t earn combatant immunity,” Corn said.