Capture, Detain and COIN: merged thread

[jmm99]

A basic rule is that once you've accepted surrender of an enemy combatant, you do not kill him. Based on the allegations proffered, Ali Musa Daqduq acted contrary to that rule. Here are the articles discussing the basic background:

Daqduq Transferred to Iraq (Bobby Chesney, Lawfare):

For further background: those who are interested in getting a better grasp on how we evolved over time from the conventional detention operations accompanying the invasion phase of the war, through to the hybrid detention-or-prosecution system of the middle period, and on to the transfer-to-Iraq-only phase of the post-2008 period, might want to read my article on the topic (Iraq and the Military Detention Debate: Firsthand Perspectives from the Other War, 2003-2010).

U.S. Transfers Its Last Prisoner in Iraq to Iraqi Custody (Charlie Savage, NYT):

WASHINGTON — The Obama administration turned over the last remaining prisoner in American custody in Iraq to the Iraqi government on Friday, a move expected to unleash a political backlash inside the United States even as the American military draws closer to completing its exit.

The prisoner, Ali Musa Daqduq, from Lebanon, is suspected of being a Hezbollah operative and is accused of helping to orchestrate a raid in January 2007 by Shiite militants who wore American-style uniforms and carried forged identity cards. They killed five American soldiers in Karbala, Iraq — one in the raid, and four others who were kidnapped and their bodies later dumped by a road.

Hezbollah prisoner held by Iraq faces minor charge (Abdul-Zahra, AP):

BAGHDAD (AP) — A Lebanese Hezbollah commander allegedly responsible for killing four U.S. soldiers in Iraq will be prosecuted for a lesser charge of illegal entry with a forged passport, Iraqi officials said Saturday.

Ali Musa Daqduq was the last American prisoner in Iraq and was handed over to Iraqi authorities on Friday.

On Saturday, two Iraqi officials said Daqduq will be prosecuted for illegal entry with a forged passport — the only Iraqi charge against him. The charge generally carries a sentence of just over five years in prison. But the officials say an investigative judge will consider U.S. allegations against him. The officials spoke on condition of anonymity because of the sensitivity of the matter.

Now cometh the attributions of fault - why did the deer escape the hunter ? Broadly, says Bobby Chesney at Lawfare, The Daqduq Mess: Apportion Blame Widely (most all of which involve "political questions"). However, a narrower approach is taken by David Glazier (CDR USN, Ret.), Past and Future Prosecution Options for Daqduq (Lawfare, guest post). His life experience is material:

Before attending law school, Glazier served twenty-one years as a US Navy surface warfare officer. In that capacity, he commanded the USS George Philip, served as the Seventh Fleet staff officer responsible for the US Navy-Japan relationship, the Pacific Fleet officer responsible for the US Navy-PRC relationship, and participated in UN sanctions enforcement against Yugoslavia and Haiti.

His comments (largely of a practical nature) are well considered (JMM: the four headings are mine]:

[War Crimes are Subject to UCMJ Courts-Martial]

I think the analysis of who bears the blame for “the Daqduq mess” overlooks perhaps the most culpable parties – senior U.S. military commanders in Iraq and their staff judge advocates. If it is true that the U.S. had evidence that Daqduq was responsible for actual war crimes — the killing of captured American soldiers – and had physical custody of him, why was he not simply tried for those offenses by a general court-martial sitting in Iraq? Senior military commanders established as general court-martial convening authorities had the necessary statutory authority given that law of war violations are specifically placed within the jurisdiction of general courts-martial by UCMJ article 18 (10 U.S.C. § 818). U.S. forces conducted 95 general and special courts-martial of American personnel in Iraq in 2008-2009, so the necessary assets were available in that theater to do so. Regardless of how the Iraqi insurgency was characterized at the time of these events – international or non-international armed conflict – killing captured individuals constitutes the war crime of murder and should have been validly subject to U.S. trial either on the basis of the victims being American or under the universal jurisdiction generally recognized for war crimes.

["Routine" Combat Killing is Not a War Crime; though It Can Be Murder]

Ironically the U.S. could probably not have made similar claims with respect to the “routine” killing of American service personnel by improvised explosive devices (IEDs) or in actual combat with Iraqi insurgents. If such killings were unlawful, it would only be because the perpetrators were not lawful combatants, in which case they would be denied belligerent immunity and subject to prosecution under ordinary domestic law for their conduct. But with the transfer of governing authority from the Coalition Provisional Authority to the new Iraqi government in mid-2004, U.S. military tribunals lost whatever domestic law authority they might have exercised as occupation law courts up until that time. Daqduq thus presented a unique situation and the staff judge advocates who failed to recognize this and advise their commanders accordingly missed a significant opportunity to see justice done for their fellow soldiers.

[Military Commission Trials Have Statutory Limitations]

I do not believe that the position reportedly endorsed by the Obama administration, trying to bring Daqduq to the United States (or even the conservatives’ preference of Guantánamo) for a military commission trial was legally sound. The Supreme Court has specifically held that convening a military commission is a command function and has only upheld trials convened by responsible commanders during the period of hostilities. (See, e.g., the 1946 Yama$hita decision, 327 U.S. 1 at 10-12.) It is unclear whether the implicit Military Commissions Act provision for a civilian appointee with no command authority to convene these trials will withstand judicial scrutiny; this is just one of the many potential issues with these trials that will undoubtedly require years of litigation to fully resolve if trials resume there in earnest. What is of more concern with respect to Daqduq is that the American withdrawal from Iraq logically terminates that conflict for purposes of legitimate U.S. military law of war jurisdiction, so a military trial anywhere at this point would be extremely problematic.

[The War Crimes Act of 1996 Applies - US District Court Jurisdiction]

There is still a possible solution to this mess, however. The killing of captive Americans clearly violates the War Crimes Act of 1996 (18 U.S.C. § 2441) and can thus be prosecuted in regular Article III courts. It seems clear that Iraq’s primary concern over the past few years has been to reassert its status as a fully sovereign nation and insist on U.S. respect for its legal capacity. The United States should publicly demonstrate respect for Iraqi sovereignty by formally indicting Daqduq in the federal system and then requesting his transfer for prosecution under the 1934 U.S.-Iraq extradition treaty. Given Iraq’s obligation under international law to cooperate in the repression of war crimes, it then has the incentive to demonstrate its standing as a responsible sovereign state by approving the transfer.

Both Polarbear1605 and Yours Truly have made the point in various SWC posts that we (US) should be prosecuting enemy combatants (whether deemed regular or irregular) for war crimes when that opportunity presents itself.

While I agree with Glazier's practice points, I doubt that the lesson that should be learned, will be learned.

Regards

Mike