When alleged terrorist Ali Musa Daqduq was transferred from U.S. to Iraqi custody last December, many in Washington worried that the Iraqi government would release him back to the battlefield. This week, Daqduq was acquitted in an Iraqi court and now the administration is trying to figure out how to keep him behind bars.
Daqduq, who U.S. military officials claim is a Hezbollah commander, had been imprisoned by U.S. forces in Iraq for leading a team that kidnapped and killed five U.S. soldiers in Iraq in January 2007. Twenty-one senators had drafted last December a letter urging the administration not to hand him over out of concern that the Iraqi government might release him.
"Failure to transfer Daqduq to Guantanamo Bay or another American military-controlled detention facility outside the United States before December 31st will result in his transfer to Iraqi authorities, potential release to Iran and eventual return to the battlefield," the senators wrote in the letter, which was never sent because the administration handed over Daqduq first, on Dec. 16.
"Daqduq's Iranian paymasters would like nothing more than to see him transferred to Iraqi custody where they could effectively pressure for his escape or release. We truly hope you will not let that happen."
At the time, National Security Council spokesman Tommy Vietor told the New York Times, "We have sought and received assurances that he will be tried for his crimes."
An Iraqi court determined on May 7 there wasn't enough evidence to prosecute Daqduq -- even though he apparently confessed to the crimes against U.S. soldiers -- and ordered his release. That order is now being appealed automatically under Iraqi law. The United States has also charged Daqduq with war crimes under the military commission system, but those charges will be impossible to enforce unless Daqduq somehow winds up in U.S. custody.
So what is the administration doing about it? The Cable obtained the internal talking points prepared by the National Security Council and approved by Deputy National Security Advisor Denis McDonough just yesterday.
"Daqduq should be held accountable for his crimes. Period," the talking points read. "While we strongly oppose his acquittal, protections for the accused are built into all judicial systems, including our own. We transferred Daqduq to Iraqi custody out of respect for, and obligation to, the rule of law in Iraq, and while we disagree with this decision, we respect the independence of the Iraqi judiciary. We will continue to work closely with the Iraqi government to explore all legal options to pursue justice in this case."
The administration won't say if they have filed an extradition request for Daqduq, but the talking points instruct any official speaking on this to say, "I can assure you that we have explored a wide range of legal options to effectuate Daqduq's transfer to the United States."
The talking points go on to praise the Iraqi government for its handling of the Daqduq case and emphasized that Daqduq has stayed in prison this long.
"Our Iraqi partners worked to ensure that he was brought to trial and that the strongest case possible was brought against him, despite Iranian pressure for his immediate release without trial. Iraq has already kept Daqduq in custody for more than four months, despite predictions by many that he would be released far earlier," the document reads.
The talking points then proceed to list a number of arguments for administration officials to use when trying to assert that the Iraqi government under Prime Minister Nouri al-Maliki is not doing favors for Iran.
"A wide range of examples illustrate that Iraq is not in strategic alignment with Iran: Iraq continues to increase its oil production, making sanctions against Iran more effective and sustainable. Iraq has worked with the United States to prohibit the transport of lethal aid from Iran to the Syrian regime. Iraq has resisted Iranian pressure to arrest the MEK and deport them to Iran, and has instead worked with the UN to peacefully relocate the MEK. Iraq continues to work with the United States to protect U.S. personnel from the threat of Iranian-backed militants. Iraq is a major security partner with the United States, having spent $8.2B on U.S. weapons and equipment to date."
The document argues that the administration simply had no choice but to hand over Daqduq to the Iraqis, rather than send him to Guantanamo Bay or Bagram Airbase in Afghanistan, or somewhere else.
"Under the [2008 U.S. Iraqi] Security Agreement, any transfer of Daqduq out of Iraq requires the consent of the Iraqi government, and, to be blunt, a transfer to Guantanamo or Bagram was a non-starter for the Government of Iraq," it reads.
Finally, on what the administration is doing now, the talking points say only, "As with other terrorists who have committed crimes against Americans, we will continue to pursue all legal means to ensure that he is punished for his crimes."
That's not going to be enough for the U.S. lawmakers and officials who are angry that the administration didn't figure out a way to keep Daqduq in U.S. custody and are worried that he will return to the battlefield soon.
"The administration really thought if we gave our evidence to the Iraqis, they would hold him under the rule of law, but the Iraqis had a different understanding of the judicial process than we do," said one administration official who is critical of the overall handling of the case.
"At the end of the day, if this guy is released, they will be releasing a man with the blood of five Americans on his hands," the official said. "This guy deserves a term much longer than five years.
"This guy has been responsible for the death of five Americans and this is another indication of the unraveling that's taking place in Iraq since we do not have a residual force there," Senate Armed Services Committee ranking Republican John McCain (R-AZ) told The Cable in an interview.
"There's a lesson here for another conflict that Mr. Obama is eager to wind down," read a Wednesday editorial in the Wall Street Journal. "As part of the plan to pull U.S. forces from Afghanistan, Washington has agreed to transfer control over detainees in U.S. custody to the Kabul government. Now would be a good time to make the proper future arrangements for any terrorist we don't want to walk free."
Chris Hondros/Getty Images
John Hudson reports on national security and foreign policy from the Pentagon to Foggy Bottom, the White House to Embassy Row, for The Cable.