I think the analysis of who bears the blame for “the Daqduq mess” overlooks perhaps the most culpable parties – senior U.S. military commanders in Iraq and their staff judge advocates. If it is true that the U.S. had evidence that Daqduq was responsible for actual war crimes -- the killing of captured American soldiers – and had physical custody of him, why was he not simply tried for those offenses by a general court-martial sitting in Iraq? Senior military commanders established as general court-martial convening authorities had the necessary statutory authority given that law of war violations are specifically placed within the jurisdiction of general courts-martial by UCMJ article 18 (10 U.S.C. § 818). U.S. forces conducted 95 general and special courts-martial of American personnel in Iraq in 2008-2009, so the necessary assets were available in that theater to do so. Regardless of how the Iraqi insurgency was characterized at the time of these events – international or non-international armed conflict – killing captured individuals constitutes the war crime of murder and should have been validly subject to U.S. trial either on the basis of the victims being American or under the universal jurisdiction generally recognized for war crimes.
Ironically the U.S. could probably not have made similar claims with respect to the “routine” killing of American service personnel by improvised explosive devices (IEDs) or in actual combat with Iraqi insurgents. If such killings were unlawful, it would only be because the perpetrators were not lawful combatants, in which case they would be denied belligerent immunity and subject to prosecution under ordinary domestic law for their conduct. But with the transfer of governing authority from the Coalition Provisional Authority to the new Iraqi government in mid-2004, U.S. military tribunals lost whatever domestic law authority they might have exercised as occupation law courts up until that time. Daqduq thus presented a unique situation and the staff judge advocates who failed to recognize this and advise their commanders accordingly missed a significant opportunity to see justice done for their fellow soldiers.
I do not believe that the position reportedly endorsed by the Obama administration, trying to bring Daqduq to the United States (or even the conservatives’ preference of Guantánamo) for a military commission trial was legally sound. The Supreme Court has specifically held that convening a military commission is a command function and has only upheld trials convened by responsible commanders during the period of hostilities. (See, e.g., the 1946 Yamashita decision, 327 U.S. 1 at 10-12.) It is unclear whether the implicit Military Commissions Act provision for a civilian appointee with no command authority to convene these trials will withstand judicial scrutiny; this is just one of the many potential issues with these trials that will undoubtedly require years of litigation to fully resolve if trials resume there in earnest. What is of more concern with respect to Daqduq is that the American withdrawal from Iraq logically terminates that conflict for purposes of legitimate U.S. military law of war jurisdiction, so a military trial anywhere at this point would be extremely problematic.
There is still a possible solution to this mess, however. The killing of captive Americans clearly violates the War Crimes Act of 1996 (18 U.S.C. § 2441) and can thus be prosecuted in regular Article III courts. It seems clear that Iraq’s primary concern over the past few years has been to reassert its status as a fully sovereign nation and insist on U.S. respect for its legal capacity. The United States should publicly demonstrate respect for Iraqi sovereignty by formally indicting Daqduq in the federal system and then requesting his transfer for prosecution under the 1934 U.S.-Iraq extradition treaty. Given Iraq’s obligation under international law to cooperate in the repression of war crimes, it then has the incentive to demonstrate its standing as a responsible sovereign state by approving the transfer.