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U.S. Military to Set War Crimes Precedent with Ali Musa Daqduq

The New York Times recently reported that the Office of Military Commissions has commenced filing charges against Ali Musa Daqduq al-Musawi for his involvement in the 2007 raid of the Provincial Joint Coordination Center (PJCC) in Karbala, Iraq. If the charges are formally filed, Daqduq, a senior member of the Lebanese Hezbollah, would be the first defendant without connections to al-Qaeda or the Taliban to be tried before a military commission. The Department of Defense has not officially acknowledged the charges filed against Daqduq because the Chief Prosecutor of the Military Commissions, General Mark S. Martins, has yet to approve the charges. Among the allegations presented to Gen. Martins are five counts of murder, three counts of attempted murder, four counts of attempted taking of hostages, and two separate counts for the use of treachery and conspiracy.

On January 20, 2007, a group of about a dozen militants posing as a U.S. security team entered the PJCC in Karbala wearing U.S. military and Iraqi police uniforms with weapons that were modified to look American. Once inside the complex, the group opened fire, injuring multiple U.S. service members and killing one U.S. Army soldier. The insurgents then captured four U.S. soldiers and held them hostage for a brief period of time with the intent of compelling the United States to release detained insurgents. The four soldiers were executed before the United States troops could reach them. Daqduq was captured two months later and is said to have confessed to his involvement in the Karbala raid during interrogations.

When the United States withdrew its troops from Iraq in December 2011, the military was left with the question of Daqduq’s judicial fate. While some suggested the Obama Administration should bring Daqduq back to the United States to try him before a U.S. criminal court, others turned to the 2008 U.S. Status of Forces Agreement (SOFA) already in place with Iraq. Under the Iraq SOFA, signed during the Bush Administration, the United States is to give deference to the Iraqi government on decisions pertaining to the disposition of any detainees in Iraq. Taking Daqduq back to the United States without Iraqi consent, however, would have not only violated Iraq’s sovereignty under the 2008 SOFA but it would have also created tensions between the two governments. Ultimately, Daqduq was transferred to Iraqi custody, leaving Iraq to care for his prosecution.

The transfer of custody has led to some serious concerns, especially because several former detainees have been acquitted by Iraqi courts. Some also fear that the political pressure on Iraqi Prime Minister Nuri Kamal al-Maliki might cause Daqduq to be freed without charges. It has, therefore, become a priority for the United States to gain an extradition order from the Iraqi government. The venue in which Daqduq will be tried, however, will weigh heavily on the United States’ ability to secure the extradition.

There are three possible venues where Daqduq may be tried: a U.S. criminal court, the military commission at the Guantánamo Bay detention center, or a military commission elsewhere. Under the Bush Administration, bringing a detainee to a U.S. criminal court would have been the simplest solution to this problem; however, the Obama Administration’s concern for the national security of U.S. citizens has made great restrictions on bringing detainees to the United States. While still a possibility, it is unlikely that the Administration would be willing to bring Daqduq within our borders. The next alternative, bringing Daqduq before the Guantánamo Bay military tribunal, would only hurt the United States’ chances of obtaining an extradition since the Iraqi government has expressed a clear reluctance in transferring any detainee there. The remaining, and most feasible, alternative would be to try Daqduq before a military commission outside of Guantánamo Bay.

Some have questioned the United States’ ability to use a military commission to try a detainee for war crimes, even though the United States is no longer in armed conflict with Iraq. The Authorization for Use of Military Force allows the United States to try an individual before a military commission if that individual somehow participated in the 9/11 terrorist attacks, which were primarily led by al-Qaeda and the Taliban. If Daqduq were prosecuted before a military commission, he would be the first detainee to be tried without a connection to either one of those terrorist organizations. The United States still holds the authority to use a military commission to try Daqduq under the Military Commissions Act of 2006 and 2009, which allows the United States to prosecute any person before who is engaged in hostilities against the United States without combatant privileges. While more than five years have passed since the Karbala raid, Daqduq will soon likely face charges before a military commission, thus setting a new military law precedent on prosecuting insurgents who are not tied to the 9/11 terrorist acts.

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