Somali man held by US on naval vessel for months to be tried in US District courtJuly 6, 2011 # 12:57 am # Armed Conflict, Foreign Policy, Human Rights, Intelligence, International Law, International Organizations, Supreme Court # No Comment
The Obama administration announced Tuesday that it would prosecute in civilian court a Somali accused of ties to two Islamist militant groups. The decision to fly the man to New York for trial, after interrogating him for months aboard a United States naval vessel, is likely to reignite debate about the detention and prosecution of terrorism suspects.
In an indictment unsealed in the Southern District of New York, the Somali, Ahmed Abdulkadir Warsame, was charged with nine counts related to accusations that he provided support to the Shabab in Somalia and Al Qaeda in the Arabian Peninsula, in Yemen. Mr. Warsame, believed to be in his mid-20s, was captured on April 19, and a plane carrying him arrived in New York City around midnight Monday night, officials said.
While the Justice Department called Mr. Warsame a “Shabab leader,” it does not accuse him of plotting any specific attack. Officials gave conflicting accounts of his significance: one portrayed him as a “senior operational commander” while another played down his role, saying that his capture was instead important because he had provided large amounts of intelligence about the groups and ties between them.
Regardless, his case is likely to have outsize significance in the political arena because it resonates with intense debates surrounding the administration’s counterterrorism policies — including whether to bring newly captured detainees to the military prison at Guantánamo Bay, Cuba; whether to prosecute terrorism cases in civilian court or before a military commission; and what rights terrorism suspects have during interrogation.
The House has already passed a bill that would probably prohibit the transfer of such military detainees into the United States. In a statement, the chairman of the House Armed Services Committee, Representative Howard P. “Buck” McKeon, Republican of California, denounced the administration’s decision.
“The transfer of this terrorist detainee directly contradicts Congressional intent and the will of the American people,” he said. “Congress has spoken clearly multiple times — including explicitly in pending legislation — of the perils of bringing terrorists onto U.S. soil. It is unacceptable that the administration notified Congress only after it unilaterally transferred this detainee to New York City despite multiple requests for consultation.”
But officials argued that civilian court was a better fit because his prosecution would face fewer legal hurdles there. Civilian prosecutors will need only to prove that he provided support to the two groups, since both are designated terrorist organizations. Military prosecutors would need to establish that the commission has jurisdiction over him — a task that would involve trying to prove that he was part of Al Qaeda itself or that he personally was engaged in hostilities against the United States or its allies.
The case comes at a time when the administration is increasingly worried about thickening ties between the groups in Somalia and Yemen, and whether the Somali group is starting to look beyond its parochial efforts to a broader conflict with the West.
The indictment says that Mr. Warsame has fought on behalf of the Shabab since 2007. Starting in 2009, it says, he began to work with Al Qaeda in the Arabian Peninsula, providing money, training and equipment. It also alleged that he went to Yemen in 2010 and received explosives and other military-type training, and helped broker a weapons deal between the groups.
In a telephone briefing with reporters, senior administration officials said Mr. Warsame and another person were captured by American forces somewhere “in the Gulf region” on April 19. Another official separately said the two were picked up on a fishing trawler in international waters between Yemen and Somalia. That other person was released.
Mr. Warsame was taken to a naval vessel, where he was questioned for the next two months by military interrogators, the officials said. They said his detention was justified by the laws of war, but declined to say whether their theory was that the Shabab are covered by Congress’s authorization to use military force against the perpetrators of the Sept. 11, 2001, attacks; whether the detention was justified by his interactions with Al Qaeda’s Yemen branch; or something else.
The officials also said interrogators used only techniques in the Army Field Manual, which complies with the Geneva Conventions. But they did not deliver a Miranda warning because they were seeking to gather intelligence, not court evidence. One official called those sessions “very, very productive,” but declined to say whether his information contributed to a drone attack in Somalia last month.
After about two months, Mr. Warsame was given a break for several days. Then a separate group of law enforcement interrogators came in. They delivered a Miranda warning, but he waived his rights to remain silent and have a lawyer present and continued to cooperate, the officials said, meaning that his subsequent statements would likely be admissible in court.
Throughout that period, administration officials were engaged in deliberations about what to do with Mr. Warsame’s case. Eventually, they “unanimously” decided to prosecute him in civilian court. If he is convicted of all the charges against him, he would face life in prison.
Last week, Vice Adm. William H. McRaven, who was until recently in charge of the military’s Joint Special Operations Command, told a Senate hearing that detainees are sometimes kept on Navy ships until the Justice Department can build a case against them, or they are transferred to other countries for detention.
Another senior administration official said Tuesday that such detentions are extremely rare, and that no other detainees are now being held on a Navy ship.
Over at Lawfare, Professor Bobby Chesney offers the following commentary:
Now here is the thing: Congress seems to be doing its level best to prevent the executive branch from carrying out precisely this sort of operation. How so? In two ways. First, by contemplating an extension of the current law that precludes anyone from GTMO being brought into the United States for any purpose, making the same rule apply generally to all overseas captures (notice that Warsame appears not to have been taken to GTMO, no doubt at least in part in order to avoid the GTMO “tar pit” effect in which Congress won’t let anyone get out anymore; ironically, in fact, it may be that Congress’s efforts to force the executive branch to use GTMO actually incentivized it not to do so in this instance). Second, Congress is contemplating making military custody mandatory (in conjunction with a military commission option), enabling ordinary prosecution only in limited circumstances). See here for Ben’s critique of that one.
So, now we have a concrete example against which to weigh the wisdom of such initiatives. Let’s hope that this helps people to see that tying the executive branch’s hands is a bad idea. And at the same time, let’s take care not to assume that the prosecution option will be equally realistic in other such cases, and thus that there is no policy justification for maintaining the military detention model for AUMF-covered individuals. The lesson here is likely to be that what makes the most sense, from a CT policy perspective, is to ensure that the executive branch has the right array of options on hand, and that when free to use those options the government can bring them to bear in coordinated fashion that gives due account both to the imperative of acquiring intelligence and the goal of ensuring that a dangerous person can be incapacitated for the long term in the end.