Detainee in Iraq Poses a Dilemma as US Exit Nears

Washington — As United States troops prepare to exit Iraq at the end of the month, the Obama administration is facing a significant dilemma over what to do with the last remaining detainee held by the American military in Iraq.

The detainee, Ali Musa Daqduq, a Lebanese suspected of being a Hezbollah operative, is accused of helping to orchestrate a January 2007 raid by Shiite militants that resulted in the death of five American soldiers. The administration is wrestling with either turning him over to the Iraqi government — as the United States did with its other wartime prisoners — or seeking a way to take him with the military as it withdraws, according to interviews with officials familiar with the deliberations.

But each option for dealing with Mr. Daqduq has drawbacks, officials say, virtually guaranteeing that his fate will add a messy footnote to the end of the Iraq war. Mr. Daqduq is likely to be a subject of negotiation when Prime Minister Nuri Kamal al-Maliki of Iraq meets with President Obama at the White House on Monday.

“There are serious and ongoing deliberations about how to handle this individual to best protect U.S. service members and broader U.S. interests,” said Tommy Vietor, a spokesman for the National Security Council.

Mr. Maliki’s visit comes as the United States is joining a series of ceremonies here and across Iraq to proclaim — with a clear sense of uncertainty — the end of the war.

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Even after the final American combat troops withdraw from Iraq by Dec. 31, a few hundred military personnel and Pentagon civilians will remain, working within the American Embassy as part of an Office of Security Cooperation to help in arms sales and training. Negotiations are expected to resume next year on whether additional American military personnel can return to further assist their Iraqi counterparts.

Hanging over the decision on what to do with Mr. Daqduq is the 2012 presidential campaign. Polls show that Americans approve of the withdrawal from Iraq by a ratio of three to one, and Mr. Obama is poised to leverage that sentiment by emphasizing the idea that Republicans were responsible for invading Iraq, while he guided the United States out.

Republicans, however, are seeking to frame the withdrawal in different terms: that Mr. Obama endangered national security by pulling out of Iraq too soon, and that he should have persuaded the Iraqis to allow United States troops to stay beyond the deadline agreed to by the Bush administration three years ago. Elevating the profile of Mr. Daqduq and highlighting any unsatisfactory outcome to his case could bolster such efforts to cast Mr. Obama’s Iraq record in a negative light.

The decision about what to do with Mr. Daqduq is complex, and time is running out. The ability of the military to hold any prisoners in Iraq is fast evaporating as it closes detention facilities and sends its remaining guards home, and so the military has been asking the administration to resolve his fate well before Dec. 31.

Under the status quo arrangement, Mr. Daqduq would be turned over to the Iraqis for possible prosecution. Officials are wary, however, because many former detainees have either been acquitted by Iraqi courts or released without charges, and Mr. Maliki could face political pressure to free Mr. Daqduq.

The administration, officials say, wants to find a solution in which Mr. Daqduq remains locked up — not only because of his suspected role in helping attacks on American troops, but also because his release could become a propaganda victory for Iran and Iraqi Shiite militants at a time of significant tensions.

It is not clear whether some important evidence of Mr. Daqduq’s suspected involvement in attacks on Americans — like a confession to American interrogators — would be admissible in an Iraqi court. Still, officials said, Iraqi prosecutors might be able to win a lengthy prison sentence on other charges, like entering Iraq illegally.

The alternative would be for the United States to take Mr. Daqduq out of Iraq and prosecute him in one of three venues: before a civilian court, before a military commission at the prison at Guantánamo Bay, Cuba, or before a tribunal somewhere else. One site under consideration is the naval base at Charleston, S.C.

Republicans have made clear that they think Mr. Daqduq should go to Guantánamo. At a hearing before the Senate Judiciary Committee last month, for example, Senator Lindsey Graham of South Carolina warned Attorney General Eric H. Holder Jr. against any other outcome.

“Mr. Attorney General, if you try to bring this guy back to the United States and put him in civilian court, or use a military commission inside the United States, holy hell is going to break out,” Mr. Graham said. “And if we let him go and turn him over to the Iraqis, that is just like letting him go. I think this would be a huge mistake.”

But within the administration, the Guantánamo option has been seen as unacceptable — not only because Mr. Obama has resisted adding to the detainee population there and still hopes to close the prison, but also because the facility is anathema in the Middle East and Mr. Maliki would not approve sending someone there, one official said.

It would violate Iraq’s sovereignty to remove him from the country without the Iraqi government’s permission. Under the Status of Forces Agreement the Bush administration struck with Iraq in late 2008, decisions on the disposition of any detainees in Iraq are ultimately up to the Iraqis, and the United States pledged to respect Iraq’s laws and sovereignty.

It remains to be seen whether Mr. Maliki might grant permission for the United States to take Mr. Daqduq to one of the other venues — or, in a variant of that plan, agree to support a request to formally extradite him to the United States, which would require at least temporarily transferring him to Iraqi custody. But Mr. Maliki is facing pressures not to do anything that could be seen as subordinating Iraqi sovereignty to American interests.

Some conservatives have argued that since the United States has physical control of Mr. Daqduq, it should just put him on a plane, without seeking Iraq’s permission — essentially, a rendition instead of an extradition. They contended that Iraqis would complain but that it would not ultimately matter.

But administration officials said that solution would be a prominent violation of Iraq’s sovereignty, undercutting the strategic relationship at a moment when the primary goal is to relegate the war and occupation to the past, and establish the kind of normal diplomatic relationship that exists between two sovereign states.

Thom Shanker contributed reporting.

This article, “Detainee in Iraq Poses a Dilemma as US Exit Nears,” originally appeared at The New York Times.