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Civilian Trial in Case Involving Attacks on American Soldiers in Iraq

Robert Chesney
Friday, December 9, 2011, 6:08 PM
I bet you thought this would be a post about Ali Musa Daqduq.  But, no, this is about Faruq Khalil Muhammad 'Isa, who has been indicted in Brooklyn on charges of conspiring to kill U.S.

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I bet you thought this would be a post about Ali Musa Daqduq.  But, no, this is about Faruq Khalil Muhammad 'Isa, who has been indicted in Brooklyn on charges of conspiring to kill U.S. soldiers in Iraq.  The indictment alleges that he and three other Tunisian men traveled from Tunisia, to Libya, to Syria, and on to Iraq, where they conspired to murder and did actually murder American soldiers.  Specifically, one man in the group carried out a suicide bombing at a FOB in Mosul, killing several American servicemembers.  The indictment charges a conspiracy to murder, as well as the murders themselves, and a violation of the 1994 material support statute (2339A) predicated on the aforementioned offenses. Interestingly, this case is not generating much attention, despite the similarities to the Daqduq situation.  Why not?  For one thing, no one thus far (so far as I know) has tried to make a focal point for controversay.  Nor should they do so.  Isa, you see, is in Canadian custody, and the U.S. goverment seeks his extradition.  There's just no chance of getting him, however, without diplomatic assurances to the effect that he will not be held in military detention or prosecuted by military commission; this is, in short, a textbook example of a situation in which civilian criminal prosecution is the only game in town if we want to hold and punish people who have American blood on their hands.  So let's hope there is no criticism of the administration's handling of this one in terms of the trial venue. It's just too bad that the decision on Daqduq (presumably) must be made within weeks rather than, say, at the end of '12.  A run-of-the-mill, successful prosecution of 'Isa would hopefully do some good in quelling the notion that a civilian process somehow just can't work or is conceptually unacceptable in Daqduq's case.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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