As the U.S. winds down operations in Iraq, national security officials have a big decision to make: what to do with a senior explosives expert captured by American troops five years ago.
Ali Mussa Daqduq is accused of organizing a kidnapping in Iraq that left five U.S. service members dead. But authorities don't have the power to hold him indefinitely under the congressional authorization approved after the Sept. 11, 2001, attacks because he's tied to Hezbollah, a militant group from Lebanon — not al-Qaida.
The U.S. government has been holding Daqduq in Iraq as an enemy combatant under legal authority that lasts as long as U.S. hostilities there. So, as time runs out on the American presence in the country, it's also running out to make a call on the fate of Daqduq and other detainees like him.
"If you want to hold someone beyond the term of the hostilities, you must prosecute them," says Bobby Chesney, who teaches national security law at the University of Texas. "You can do it in a military commission system, you can do it in a civilian court, you can do it in an international tribunal, but prosecution is the only method for putting someone in jail beyond the term of hostilities."
U.S. authorities also could decide to release him, which they don't want to do for fear that he'll target American interests, or send him back to Lebanon — same fear there.
In a statement, White House spokesman Tommy Vietor said there are "serious and ongoing deliberations about how to handle this individual to best protect U.S. service members and broader U.S. interests."
Republicans in Congress, meanwhile, have been taking a stand. South Carolina Sen. Lindsey Graham made his case to the attorney general at a hearing last week.
"Mr. Attorney General, if you try to bring this guy back to the United States and put him in a civilian court or use a military commission inside the United States, holy hell is going to break out," Graham said.
Attorney General Eric Holder started to respond.
'Higher Up The Ladder'
"This is a decision that'll be made by — I will be a part of the decision-making process, but the decision itself will be made by, I think, people higher up the ladder," Holder said.
But Graham interjected before the attorney general let out another thought. "Well, could you tell those people higher up that we're about to withdraw from Iraq, and these people in Iraq are going to be let go, and we're running out of the ability to hold people in Afghanistan?" Graham said.
Graham wants the administration to send Daqduq to the U.S. facility at Guantanamo Bay. He said that's the best option for other high-value detainees caught by the U.S. in the future.
"The Iraqi legal system is not going to allow us, they're not going to become the jailer for the United States, Afghanistan is not going to become the jailer of the United States, naval ships are not a good option," Graham continued. "So I just really believe that we need to embrace reality — and the reality is we need a jail, we don't have one, and Gitmo's the only jail available."
But the Obama White House is committed to trying to close the prison at Guantanamo Bay, Holder said, so it doesn't want to send any new detainees there.
Chesney of the University of Texas says that, ironically, Congress itself has introduced some complications to following Graham's suggestion.
"Congress, in a drive to compel the president to use Guantanamo more, has created a powerful disincentive to use Guantanamo, by making it almost impossible for anyone who was ever brought there at this point to ever be released or transferred out of there," Chesney says.
By contrast, Chesney says, the U.S. could bring Daqduq before a military commission on any American base — not just in the continental U.S.
The Obama administration said a review of the case by several federal agencies isn't finished yet.
There are about six more weeks to come up with an answer.