[Update: Over at Opinio Juris, John Dehn raises the interesting and important question whether it would be constitutional for a commission to convene at this point in regards to events in Iraq, given language in Yamashita suggesting that the conclusion of the conflict might terminate the authority of Congress to authorize such proceedings. As John notes, recognition of such a rule would require a determination as to whether the conflict in Iraq is in fact over in a salient sense.]
Readers will recall that Ali Musa Daqduq is a Hezbollah member involved in an attack on American forces in Iraq in which the attackers disguised themselves as American soldiers and Iraqi police and in which several captured American soldiers were murdered post-capture. Readers will also recall that Daqduq was the very last detainee US forces held in Iraq, that there was endless speculation as to what would become of him in light of the US withdrawal from Iraq, and that in the end Daqduq was transferred to Iraqi custody. This sparked much criticism, including from those who strongly preferred to see Daqduq prosecuted in some American forum (though this camp was itself divided, as some argued against this option if it meant bringing him to the United States). In any event, I had thought the issue was closed, for better or worse, but then came this morning's New York Times article from Charlie Savage, reporting that the Office of Military Commissions swore out charges against Daqduq a couple of weeks after his transfer to Iraqi custody.
Does this herald an effort to have Iraq transfer Daqduq back into US custody? Charlie outlines the possibilities below:
A military spokesman, Lt. Col. Todd Breasseale, confirmed the charges and said the government was “working with Iraq to effect Daqduq’s transfer to a U.S. military commission consistent with U.S. and Iraqi law.”
“We are seeking the fastest possible way to bring him to justice,” he said.
He provided no explanation for why the charges were kept quiet, including not being posted on the military commissions system Web site. The White House declined to comment.
It is not clear whether the administration was actively seeking Mr. Daqduq’s extradition, or whether the charges were prepared as a backup measure in hopes of keeping him locked up should Iraqis fail to prosecute him or should he be acquitted by an Iraqi court. Officials have expressed concerns that the government of Iran may pressure Iraq to release him.
So it may be that this merely in the nature of a back-up plan. There is, after all, still the question of where the commission proceeding would be held given (i) administration reluctance to bring new persons to GTMO, (ii) apparent Iraqi unwillingness to cooperate should the plan be to send Daqduq to GTMO, and (iii) legislative opposition to bringing Daqduq into the United States. But let's assume, just for the sake of it, that Daqduq does end up back in our control, and that an agreement is reached to conduct a commission proceeding in some particular location. What issues could we then look forward to hearing about?
Application of the commission system to a non-al Qaeda, non-Taliban defendant - As Charlie's article emphasizes, this would indeed be a distinction from the existing post-9/11 commission cases. But it's perfectly within the scope of the Military Commisssions Act in both its 2006 and 2009 incarnations, as both encompassed persons who engaged in hostilities against the United States without combatant privilege, without requiring more narrowly that the person be linked to al Qaeda or the Taliban or more generally that the hostilities relate to the 9/18/01 AUMF (as opposed to, say, the 2002 AUMF for Iraq).
The Substantive Offenses - The lead offenses charged (Charges I, II, and III) are core war crimes: murder in violation of the law of war (with the violation consisting both of perfidy and execution of prisoners), causing serious bodily injury via perfidy, and the act of perfidy itself. The attempted murder charges (Charge VII) are similar, and so too with the attempted hostage-taking charge (Charge VIII). There's just nothing controversial at all about calling these offenses war crimes. The other charges might spark some debate, however, as they include terrorism (Charge IV), material support to an act of terrorism in the form of providing advice, training, and planning in support of the attack (Charge V), spying in preparation for the attack (Charge VI), and conspiracy (Charge IX). Note that the conspiracy charge is framed in terms of an agreement among members of the insurgent cell involved in the attack, members of Hezbollah, and members of the Iranian Revolutionary Guard-Quds Forces (IRGC-QF).