In 2007, Brig. Gen. Kevin J. Bergner talks to the media as a picture of Ali Mussa Daqduq is displayed on a board

Story highlights

Case has become a tug-of-war between Iraq and the Obama administration

Ali Mussa Daqduq is accused of involvement in the murder of several U.S. soldiers

Iraq has given no indication it will allow Daqduq, a Lebanese militant, to be taken away

Daqduq accused of setting up kidnapping in Karbala in January 2007 that left five dead

CNN  — 

Ali Mussa Daqduq, a Lebanese militant accused of involvement in the murder of several U.S. soldiers in Iraq, has been in U.S. military detention in Iraq since 2007 – but likely not for much longer.

As the last U.S. forces depart Iraq, Daqduq may soon go free without facing trial.

The Iraqis have given no indication that they will allow Daqduq to be taken out of the country, and the case has become a tug-of-war between Iraq and the Obama administration.

The prospect that Daqduq – a veteran operative of the Lebanese Hezbollah militia – may escape U.S. justice altogether has infuriated members of Congress. And even if the Iraqis agree to let him leave with his captors, just how and where he would face trial is another political minefield for the Justice Department.

Daqduq was accused of organizing a kidnapping in the Iraqi city of Karbala in January 2007 that left five U.S. soldiers dead.

After he was captured some months later, according to U.S. intelligence officials, Daqduq pretended to be a deaf-mute. But officials identified him as a 24-year veteran of Hezbollah who had commanded a special operations unit and been sent to Iraq to develop “Special Groups” within Shiite militia.

They said he admitted working with the Quds Force, a branch of Iran’s Revolutionary Guard. U.S. military intelligence contended the Quds force was using Hezbollah as a surrogate in Iraq.

Daqduq has been held by the U.S. military as an “enemy combatant.” Now the withdrawal of U.S. forces is almost complete and he can no longer be held without trial once hostilities are over. But U.S. officials are reluctant to hand over such a high-profile suspect to the Iraqi justice system. Their anxiety is that under pressure from Iran, Iraqi authorities would soon let Daqduq go free. 

That concern was shared by 20 U.S. senators in a letter to U.S. Defense Secretary Leon Panetta in July, when they warned that “Iraq’s current legal regime could allow Daqduq to return to the fight as a result of an inability to detain and prosecute him under Iraqi criminal law, ineffective incarceration or other challenges.”

Initial requests by the United States to take Daqduq for trial outside the country appear to have fallen on deaf ears in Baghdad. Negotiations are continuing; diplomats say the case was almost certainly raised during U.S. Vice President Joe Biden’s visit to Iraq this week. 

But on Sunday, U.S. Ambassador James Jeffrey would say only, “The United States under the provisions of the security agreement is authorized in conjunction and coordination with the Iraqis to hold detainees until the end of the period of our military presence, which will be legally the end of December.”

“Beyond that we don’t get into discussion about who we are holding and who we are not holding by name,” Ambassador Jeffrey added. 

Even if the Iraqis change their mind, there is the thorny question of how and where Daqduq might be tried. Sen. Lindsey Graham, R-South Carolina, wants Daqduq removed to Guantanamo Bay. He told Attorney General Eric Holder during a hearing of the Judiciary Committee this month: “If you try to bring this guy back to the United States and put him in a civilian court or a military commission inside the United States, holy hell’s going to break out.” 

Holder responded that a decision rested with “people higher up the ladder.” But the Obama administration remains committed to closing the detention facility at Guantanamo Bay and sending an additional prisoner there would not be palatable.

The idea of a military trial at a U.S. base overseas has been mooted, but Professor Robert Chesney, an expert in national security law at the University of Texas, says these bases are not sovereign U.S. territory and most host governments would not welcome the trial of a senior Hezbollah figure. 

According to legal experts, trial by a military commission at a base in the continental U.S. would be a viable option. But Chesney notes that option has already run into political thickets. One possible compromise – a U.S. territory such as Guam.

But first, the U.S. military has to get Ali Mussa Daqduq out of Iraq.    

Mohammed Tawfeeq and Katie Glaeser contributed to this report.