Detention: Operations in Iraq

A Military Commission for Daqduq in the US?

By Robert Chesney
Sunday, September 25, 2011, 3:39 PM

I have written previously about the pros and cons of the military commission option for Ali Mussa Daqduq, a member of Hezbollah whom we have been holding in military custody in Iraq for some period based on his involvement in orchestrating attacks on American soldiers there.  The long and short of it is that we have been unwinding our detention operations in Iraq for years, must complete that process by the end of this year, and are doubtful that Daqduq would stay in custody should we simply transfer him to face prosecution in an Iraqi court.  As I explained in my prior post, this case actually seems to be a terrific case for reliance on the commission system, insofar as the plan is to charge him with directing the execution of prisoners.  If on the other hand the plan is to charge him with involvement in "terrorism" or "material support" for terrorism, it is much less clear how viable those charges would prove to be as a legal matter.    So why mention all this again now?  Well, Matt Apuzzo of the AP reports that the administration may be inclined to use the military commission option against Daqduq after all...but, and here's the kicker, it might wish to do so in the United States rather than at GTMO.

People are bound to get wound up about this, I know.  For those inclined to be unhappy about this because of the location element, however, I urge them to think through just why they would oppose having a proceeding against Daqduq within the United States.  One argument articulated often as to GTMO detainees is the idea that once a person is brought into the US, it will be too hard to get him out again after the sentence is served or in the event of an acquittal.  But that concern really doesn't apply in Daqduq's case.  He is Lebanese, and there's no reason to think he'd mount a credible non-refoulement or asylum argument in light of this.  So what does that leave?  Since we are speaking of a commission rather than a civilian jury trial, the "danger to jurors" argument falls out.  Since we are talking of a proceeding that would occur on a military base, we can also set aside arguments to the effect that security would be too difficult to maintain.  As for expense, there's no particular reason to think a Daqduq trial would be more expensive if held in the US; if anything, it would almost certainly be cheaper.  All that leaves, I think, is the possibility of enhancing the threat to the local community where the proceeding occurs.  We should always take that seriously, but bear in mind we are talking here of a Hezbollah defendant, not an al Qaeda members.  Were Hezbollah to retaliate, it is not at all obvious or even likely that what they would choose to attempt would involve something directed at the local community where the commission proceeding occurs.  On the contrary, retaliation would seem much more likely to occur in Iraq or elsewhere in the CENTCOM AOR.

Set against that assessment, is there anything to be gained by doing this in the US rather than at GTMO?  Fairly or not, it may well improve the perceived legitimacy of the proceeding.  It certainly will improve the chances for the proceeding to be transparent, which also will enhance legitimacy.  And then there is the fact that Congress has made GTMO much less appealing as a detention or trial location for new captures by effectively forbidding the transfer of individuals out of GTMO barring a habeas order.  On balance, then, a decision to hold a commission proceeding at a military base in the United States could make a great deal of sense in this particular case, regardless of whether it is the right move as well for any of the GTMO detainees.