The Cable

New push begins for Law of the Sea Treaty

The Obama administration and Senate Foreign Relations Committee Chairman John Kerry (D-MA) are beginning a new push to seek ratification of the United Nations Convention on the Law of the Sea, known around Washington simply as the Law of the Sea Treaty.

The treaty, which came into force in 1994, established rules of the road for operating in international waters and set forth a regime for determining mineral and other rights beneath the ocean floor. Since then, 161 countries have signed on, as well as the European Union, but the U.S. Senate has not ratified it.

In fact, the treaty has never come up for a full vote, despite support from multiple administrations, Democrats, and the Navy, which views it as needed to allow the United States to fully participate in the growing multinational system that governs the open seas. It is vigorously opposed by some Republicans, who argue that signing it would be tantamount to an abandonment of U.S. sovereignty.

Kerry's efforts to initiate the months-long ratification process on the treaty began last year. He has met with a host of senators on the issue, and his staff has been consulting with businesses and the military and respected national security experts in both parties. But the drive to set up hearings to promote the bill stalled.

Hill staffers say that Kerry's committee counterpart Richard Lugar (R-IN) did not want the ratification process to begin before his primary, because he was inclined to support the treaty but recognized that his support could be used against him politically. But with Lugar now out of the way, the ratification process is back on track.

Kerry will soon announce the first hearing, which will be made up of a panel of high-ranking military officials, The Cable has learned. It will be a "24-star hearing," meaning the panel will have six military officers with four stars each.

"Senator Kerry has heard for a long time that it'd be helpful for the committee to hold some hearings and review a treaty that hasn't been examined since 2007. The Senate has experienced massive turnover since that period, with 30 new senators," Kerry's Communications Director Jodi Seth told The Cable.

She denied, however, that the timing of Lugar's primary was the reason for the delay.

"Senator Kerry considered holding hearings last year, but it wasn't feasible after he was asked to serve on the Super Committee, and there have been other urgent issues from Iran to Syria and the State Department budget that have required the [SFRC's] immediate attention this spring," said Seth. "But now, after hearing from conservative-minded businesses, national security experts of both parties, and the military, all of whom strongly support the treaty, Senator Kerry decided the time was right to initiate some hearings and he hopes they'll be helpful for the committee."

Defense Secretary Leon Panetta also pushed for a new ratification process to pass the treaty in Wednesday remarks at a Law of the Sea symposium in Washington. Panetta called on the Senate to embrace Lugar's bipartisan spirit.

"Our country desperately needs the bipartisan spirit he embodied. It would be an enormous tribute to Senator Lugar's distinguished record to accede to this convention on his watch," Panetta said.

He also laid out the administration's main arguments in favor or the treaty: that U.S. accession to the treaty would allow the United States to secure mineral rights in a larger geographical area, would ensure freedom of navigation for U.S. ships, and would give the country better leverage for claims in the Arctic.

Panetta warned that in failing to ratify the treaty, the United States would "give up the strongest legal footing for our actions."

"We potentially undercut our credibility in a number of Asia-focused multilateral venues -- just as we're pushing for a rules-based order in the region and the peaceful resolution of maritime and territorial disputes in the South China Sea and elsewhere," he said. "How can we argue that other nations must abide by international rules when we haven't officially accepted those rules?"

The Cable

Administration struggling to prevent release of Hezbollah commander in Iraq

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."

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