The number of violent acts committed in Iraq by insurgents, terrorists, and militias over the past eight years in Iraq boggles the mind. Few if any of these acts would be entitled to the protections of the combatant’s privilege, and hence they are generally prosecutable as crimes in the Iraqi criminal justice system and, depending on the perpetrators and victims, also in the American criminal justice system. In addition, some of these violent acts may also be described as violations of the law of armed conflict (though which ones count depends on how one defines war crime; certainly there are innumerable attacks on civilians that would qualify by any sane measure). In the *vast* majority of instances in which the United States has captured persons involved in this violence, however, we have rarely pursued prosecution in our own courts, civilian or military. Between 2003 and 2008, we relied instead on a two-track model involving (i) security internment in American facilities like Camps Cropper and Bucca and (ii) prosecution in the Iraqi criminal justice system. Since the Security Agreement era began in 2009, moreover, we have phased out that first track, and for the past several years have focused almost entirely on Iraqi criminal prosecution. (Read all about it here.)
The only exception of which I’m aware—i.e., the only case in which the United States undertook to prosecute in its own courts—involved Wesaam Delaema, a Dutch national who had gone to Iraq to participate in an IED network in 2003 and was later arrested while back in the Netherlands (see here). The case was a bit of a mess because of the Dutch connection. The United States obtained extradition only subject to certain conditions, the result of which was that Delaema served his sentence (he pled guilty) back in the Netherlands and then was freed very early on. Interestingly, but perhaps not surprisingly, the agreement with the Dutch also had precluded any consideration of trying Delaema by military commission.
So where am I going with all this? Well, there is a letter making the rounds, sent by a group of GOP senators (Grassley, Hatch, Sessions, Cornyn, and Coburn) to AG Holder on May 16, complaining that the administration is considering a civilian prosecution rather than a military commission proceeding against another Iraq-linked individual. The fact pattern is a sensitive one, to say the least. According to the letter, it involves a relatively senior Hezbollah operative who engaged in a series of war crimes in Iraq including the murder of a group of kidnapped American soldiers. The core complaint in the letter is that this person should be prosecuted by military commission, not in a civilian court (the letter focuses as well on the decision-making process regarding such decisions, among other things).
Is that even possible? It is the first time I can recall any substantial discussion of using commissions in relation to any of the sea of war crimes that have been committed in Iraq [UPDATE: I am just characterizing the public debate, and do not mean to suggest anything one way or another regarding what government officials may have considered], but that doesn’t mean it isn’t possible. 10 USC 948a, from the MCA 2009, defines an unprivileged enemy belligerent to include any person not encompassed by Article 4 of the Third Geneva Convention who (A) engages in hostilities against the US or its coalition partners, (B) provided material support to such hostilities, or (C) was part of al Qaeda at the time of the offense. Note that (A) and (B) don’t require any connection to al Qaeda or any other particular group or conflict, and hence in theory they certainly could apply to war crimes in Iraq (the MCA 2006 version of this language was less specific, but also not strictly limited to AQ or Taliban-associated conflicts). From this perspective, then, nothing in the geographic location of the alleged offense nor the person’s particular organizational affiliation would prevent reliance on a commission. Put simply, it does seem commissions could be used in relation to crimes in Iraq such as this. Note that at least some offenses with which this defendant might be charged—particularly execution of prisoners—plainly are war crimes.
Does that mean they must be tried by commission instead of in a civilian court? Of course not. I don’t have any reason to doubt that a civilian court could do the job just fine in this instance. The fact that the Delaema situation resulted in early release was entirely the result of constraints that followed from his presence in the Netherlands at the time of his arrest and the consequent obligation of the US government to agree to constraints in order to obtain extradition in the first place. There’s no reason to think the same thing is going to occur in this instance. The choice of systems, in short, should not be driven by that concern, but instead should focus on others including the relative legitimacy of the available options, diplomatic and other costs (including the risk of reduced security cooperation) that might be incurred, the relatively high equities the military has in this instance because the victims were US servicemembers, and so forth. That last factor strikes me as particularly relevant here, but ultimately I think it’s a very hard decision to make—I suspect opting for commissions in this case would generate really sharp pushback domestically and abroad. Oh, you’ll notice I’ve not mentioned the relative ease of prosecution as between the two forums. Suffice to say that the systems are not nearly as different from one another when it comes to evidentiary and procedural rules as both critics and supporters tend to assume (see Ben here on coerced evidence, for example).