Cully Stimson on the Daqduq Situation

There is an old saying that only the toughest issues make it to the President’s desk.  And when those issues get to his desk, he has three basic options: do something, delay, or do nothing.  And sometimes doing the right thing is more important than trying to make everyone happy.  The right thing to do in this instance would have been to try Lebanese national and senior Hezbollah Field Commander Ali Musa Daqduq in an American court of law (federal court or military commission) for his role in orchestrating the kidnapping and murder of five U.S. service members in Iraq in 2007.  But instead of doing the right thing and focusing on justice for the victims and their family members, as I recently predicted in a Wall Street Journal op-ed, the Obama administration said “pretty please can we have him” to the Iraqis, and when they said no, simply turned Daqduq over to the Iraqis.  According to news reports, the Obama administration “sought and received assurances that he [Daqduq] would be tried.”  Yet hours after we handed him over, the Iraqis announced that they would prosecute him for the relatively minor offense of passport fraud, which, compared to five murder charges, is small potatoes.  One credible source tells me that Daqduq could receive up to ten years, with no credit for time served.  No one thinks ten years is enough time for five murders.  But it is just as likely, given past experience, that he will receive a slap on the wrist, or worse yet be acquitted.  Either way, it is likely he’ll be back in Iran very soon. So who is to blame for this fiasco?  Is the Obama administration alone at fault for doing nothing?  No. The truth is there is plenty of blame to go around, including the Obama administration, the Bush administration, and the Maliki government as Bobby cogently argued on here. Let’s start with the Obama administration.  As a political matter, they felt boxed in domestically by both sides of the spectrum: by the left (including some members of the administration) who think that bringing one additional person to Gitmo, even for a military commission, would be inconsistent with eventually closing the facility; and the right, who demanded justice but claimed if they brought Daqduq to the United States for a federal trial or military commission “holy hell is going to break out.”   The can’t-add-one-more-detainee-to-Gitmo-because-it’s-closing crowd is divorced from reality.  The Obama administration had two years of Democratic control of the U.S. Senate and House to work the legal, logistical, political and diplomatic  issues necessary to close Gitmo.  But the administration didn’t spend one dime of political capital to get the job done.  Today, everyone in Washington (Democrats and Republicans) knows that Gitmo isn’t closing anytime soon.  To think that adding one detainee to the 171 detainees there will make it impossible or more difficult to close the facility is patently absurd---and everyone knows it. Similarly, the you-can’t-bring-one-terrorist-to-American-soil-safely crowd is similarly misguided.  Our federal prisons are filled with convicted, dangerous terrorists, like Zacarias Moussaoui (the “20^th hijacker”), Richard Reid (the “Shoe Bomber”), and Ahmed Ressam (the “Millennium bomber”).  They are not endangering U.S. citizens by serving their sentences in domestic federal prisons, and their trials were conducted safely in federal district courts here in the United States.  Furthermore, all terrorists are not alike.  Daqduq does not have a following like, for example, Khalid Sheik Mohammed (KSM), the mastermind of 9/11 and major al Qaeda figure.  Bringing KSM to New York City (or any U.S. city for that matter) presents substantial security risks; bringing Daqduq to New York or northern Virginia for trial in federal court, or South Carolina for a military commission carries far fewer security risks, if any.  If they sent him to Gitmo for a military commission (as David Rivkin and I argued for in our Wall Street Journal op-ed), there would have been no risks to Americans, period. Also, there is no reason to think that Daqduq would have or could have sought asylum or make other credible legal claims that would have gummed up the removal process once he was brought to the United States for trial. As for the notion that there would be “holy hell” to pay if the administration were to bring Daqduq to the United States for trial (federal or military), that price would be political only.  And frankly, the domestic political cost of doing nothing and handing him over to the Iraqi government is arguably much higher than bringing him to justice in the United States for his crimes and withstanding the temporary (at best) political dustup.  His conviction and life sentence would have silenced those opposed to such a move, and actually paved the way for others to be brought to justice in America.    They felt boxed in internationally as well, as the Government of Iraq was not willing to surrender legal custody of Daqduq despite repeated requests by the Obama administration.  According to news reports, President Obama even raised the issue with Prime Minister Nuri al-Maliki last week during their meeting at the White House.  The Obama administration also claims that their hands were tied legally as well.  There is some merit to that argument.  The legal position of the Executive branch since the Bush administration has been that the United States ceased being an occupying power in Iraq when sovereignty was transferred to the Iraqi transitional government in June of 2004.  Since that point, the argument goes, the United States actions’ and obligations in Iraq have been governed by United Nations Security Council resolutions and status-of-forces agreements with the government of Iraq, which provide for the handling and treatment of military detainees.  Of course, the Obama administration knew about Daqduq (and other dangerous third-country nationals (TCN)) shortly after taking office.  They knew because I, and others, brought the issue to their attention early on (Full Disclosure: I brought up the issue in general when I spoke to the Obama Detainee Policy Taskforce in the Spring of 2009). They knew, coming into office, of the draw down date of December 2011, and that all remaining detainees in custody had to be turned over to the Iraqis.  And Daqduq was unique, as he had (arguably) more American blood on his hands that any other TCN in custody in Iraq.  And yet, they apparently failed to press the issue early and often with the Iraqis, or tie the issue to other initiatives related to the American withdrawal.  As a result, they left the Daqduq issue to the 4^th quarter when they had little to no leverage with the Maliki government. And despite the fact that the Obama administration has been willing to use drone strikes and special operations forces aggressively in the region, which have resulted in increased tensions, they weren’t willing to render Daqduq to the United States without the express permission of the Iraqi government for fear of violating Iraqi sovereignty and harming our relationship with the fragile Maliki government.  Yet that was the only viable option on the table by December 2011, and the reason David Rivkin and I argued for just that in our Wall Street Journal article.  Whether the administration had the assets in place to accomplish that task is not known. A free, stable, sovereign Iraq certainly is in the best interests of the United States, and the Middle East for that matter.  But to suggest that rendering one foreign (non-Iraqi) national who committed murder against American military personnel during wartime while we were liberating Iraq a major affront to Iraqi sovereignty and a political slap to the Maliki government is an overstatement at best, and not credible at worst.  Lest we not forget: over 4470 U.S. military personnel have paid the ultimate price in Iraq alone.  Tens of thousands of others have been wounded; many suffer from post-traumatic stress disorder, and other combat-related conditions.   And regardless of whether one thinks we should or should not have gone into Iraq in the first place, we did.  And as a result, millions of Iraqis now live in a country free from the despotism of Saddam Hussain and his henchmen. Saying “pretty please, can we please have Daqduq” evinces a failure of leadership and effective hard diplomacy on the part of the Obama administration.  It also gives an impression of weakness to others in the region (e.g. Iran).   But the Bush administration also shares in the blame.  Daqduq was captured three months after the January 2007 attacks, during the Bush administration.  He was captured during the “surge” in Iraq, when the detainee (technically called “security internees” in Iraq) population exploded to over 25,000 people.  The administration and those in charge of detainee operations in Iraq were valiantly struggling to manage the ever-blossoming population, including the hundreds of TCN’s captured in Iraq.  As a matter of policy, detainees captured in Iraq were held in Iraq (Gitmo detainees were, for the most part, captured in Afghanistan).  Some were prosecuted in the Central Criminal Court of Iraq (CCCI) for their crimes, but most were held without charge under the laws of war.  Some of those prosecuted were convicted, but many of those convicted received relatively minor sentences for their crimes. As a result, the Bush administration was reluctant to send some terrorists like Daqduq to the CCCI, and were also not willing to take them to Gitmo for a military commission or the United States for trial in federal court. To my knowledge, there were also no special arrangements within the Status-of-Forces agreements between the United States and Iraq from 2004 onwards that gave the United States specific authority to take terrorists like Daqduq from Iraq to the United States or Gitmo.  And then there is the Maliki government itself.  One would think that the extreme sacrifices of American service personnel (over 4470 dead and tens of thousands injured) alone would drive the Maliki government to hand Daqduq over to the Americans to face justice.  But Daqduq is no ordinary terrorist.  Although he is a Lebanese national, he is also a senior Hezbollah Field Commander, and thus a product of Iran.  Given Iran’s outsized and pervasive influence in Iraq in general, with the Maliki government, and with Nuri al-Maliki himself, it is little wonder that they decided not to hand over (ostensibly) an Iranian terrorist to the Americans. The Daqduq disaster could have been avoided.  By 2011, it was more about a power struggle between Iran and the United States.  Somebody needed to do the right thing years ago, no matter who it angered, and bring him to justice in an American court of law. That is little comfort for the families of the fallen who will spend their 5^th Christmas without their loved ones shaking their heads and rightfully asking, “why?”