Why Did the Iraqi Prosecution of Daqduq Fail?

By Robert Chesney
Tuesday, May 8, 2012, 11:13 AM

Yeesh.  Yesterday I noted that Chairman McKeon's NDAA draft includes a "Daqduq rule" -- i.e., a provision requiring the Defense Department to notify Congress before transferring certain detainees held at the DFIP in Afghanistan out of U.S. custody.  I called it that because the impetus for such intervention surely was the example provided by Ali Musa Daqduq, the Hezbollah commander whom U.S. forces once held in Iraq but who then had to be turned over to Iraqi custody for criminal prosecution.  The Daqduq precedent was problematic because it seemed likely that the Iraqi were unlikely to press the most serious charges against him, and would have to settle for something along the lines of a prosecution for illegal presence in Iraq, which might net a sentence lasting only a few years.

Well, hot on the heels of all this, as Raff notes in today's news roundup, Jack Healy and Charlie Savage are reporting that an Iraqi criminal court has actually dismissed all charges against Ali Musa Daqduq, based on insufficient evidence.  This may yet be reversed on appeal, apparently, but for the moment it looks increasingly likely that Daqduq will simply walk free.

There are a few possibilities as to what is going on here.

First, it could be that the Iraqis went ahead and charged Daqduq after all with weighty counts relating to his alleged orchestration of a perfidious insurgent attack, and that the evidence simply was too thin for one of a couple of reasons.  It might be, for example, that the court in question refused to give proper weight to forensic evidence (a problem that has arisen in Iraqi courts repeatedly in the past, though one that supposedly had gotten better over time), or that it refused to credit any interrogation statements that might have been obtained by U.S. forces (a problem that also arose in the past to some extent, separate and apart from allegations that the statements were obtained through unlawful coercion).  The report from Healy and Savage suggests that the latter might be the case.  Or it could be that the U.S. government was unable or unwilling to share with the Iraqis inculpatory evidence that was in some fashion too sensitive to produce.  Perhaps it was some or all of the above.  Or perhaps the court simply blew past the evidence, failing to give it due weight.  We just can't tell from the limited information in the public record thusfar.  (shameless self-promotion: I talk at length about the ups-and-downs of Iraqi criminal prosecution in insurgency-related cases here).

But recall that the charge was expected to be no more than a claim that Daqduq had been in the country illegally.  In that case, it is very hard to see how in the world there was not sufficient evidence to support the prosecution.  Unless of course he was not in the country illegally after all.  If the latter turns out to be the case, then it raises a serious question about the due diligence performed at the time of Daqduq's transfer to Iraqi custody, and helps me better appreciate why McKeon's NDAA bill includes what I've called the Daqduq rule.

In any event, like Healy and Savage, I'm now wondering whether the U.S. government has made a formal request for Daqduq to be extradited.  It's far from obvious Iraq would give him to us, and it might be that if they are willing to do it at all, they would do it solely upon our agreement to use civilian courts rather than a military commission (Healy and Savage point this out as well).  Of course, none of this will matter if the Iraqis are no more willing to give weight to Daqduq's interrogation statements in that context than they appear to be in the context of their own prosecution effort.  Nor will it make a difference, for that matter, if at the end of the day the Iraqis are simply unwilling to buck either the Iranians or various internal Shiite constituencies that may be sympathetic to Daqduq.