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American troops are preparing to leave Iraq, but they have some business to manage first. One item on the list is what to do with an explosives expert now in custody. Ali Mussa Daqduq is accused of organizing a kidnapping in Iraq that left five Americans dead. But the U.S. does not have the legal authority to hold him indefinitely. He's tied to the militant group Hezbollah. And as NPR's Carrie Johnson reports, under U.S. law, that's the wrong militant group.
CARRIE JOHNSON, BYLINE: In the words of a U.S. government official, Ali Mussa Daqduq is one tough case. He's a Lebanese militant who traveled to Iraq to teach operatives there how to build roadside bombs. But as a member of Hezbollah, not al-Qaida, Daqduq is not covered by the congressional authorization to use military force. Instead, he's been held 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. Bobby Chesney teaches national security law at the University of Texas.
BOBBY CHESNEY: If you want to hold someone beyond the term of the hostilities, you must prosecute them. 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.
JOHNSON: U.S. authorities also could decide to release him, which they don't want to do for fear he'll target American interests. Or send him back to Lebanon - same fear there. Republicans in Congress, meanwhile, have been taking a stand. Here's South Carolina Senator, Lindsey Graham, making his case to the attorney general at a hearing last week.
SENATOR LINDSEY GRAHAM: 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's going to break out.
JOHNSON: Attorney General Eric Holder started to respond.
ATTORNEY GENERAL ERIC HOLDER}: 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.
GRAHAM: 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.
JOHNSON: Graham wants the administration to send Daqduq to the U.S. facility at Guantanamo Bay. And he says that's the best option for other high value detainees caught by the U.S. in the future.
GRAHAM: 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. 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.
JOHNSON: 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. And Chesney, of the University of Texas, says there are some complications to following Senator Graham's suggestion.
CHESNEY: 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's ever brought there, at this point, to ever be released or transferred out of there.
JOHNSON: 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 White House says a review on the case by several federal agencies isn't finished yet. There's about six more weeks to come up with an answer.
Carrie Johnson, NPR News, Washington.
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